JAIL STAYS GROW WITH THE BACKLOG

Length of time defendants are held has more than doubled in 6 years

On a typical Friday, Santa Clara County's Hall of Justice looks like it is
going out of business. Some judges are toiling away in their chambers, but,
with the exception of a few clerks and bailiffs, courtroom after courtroom
has been abandoned.

Despite a crushing criminal caseload, a five-month Mercury News
investigation documented that by lunch time on most Fridays, a cadre of
veteran judges, the men who hear the most notorious and heinous cases, have
left for home, are off running errands or are on their way to play golf.

``You could set a bomb off in the Hall of Justice on most Fridays and not
kill any judges or many lawyers,'' says a veteran prosecutor who has worked
in the building for years.

These judges say they are free to leave because there is not enough work to
keep them in the courthouse on Fridays, and claim they are taking vacation
time to which they are entitled.

``If I have nothing assigned to me . . . and I have no cases under
submission, there is no requirement to the electorate to be here to look at
that wall,'' says Superior Court Judge Thomas Hastings, a 19-year veteran
who regularly plays golf on Fridays. ``In fact, I think the electorate
would be better served knowing that for my emotional stability and physical
stability, I'm getting exercise.''

But a hard look at the county's criminal courts suggests that judges should
not have to search far for work. The courts are burdened with one of the
biggest backlogs of felony cases awaiting trial in the county's history.

A recent audit found Santa Clara County to have the least efficient
criminal trial system of the 17 largest counties in California, and that
includes Los Angeles, the state's criminal-justice jungle. Inmates are
languishing longer than ever waiting for trial in the overcrowded county
jail, at taxpayers' expense.

The judges who leave early say they get all of their work done, and they
blame the backlog on a lack of resources. They consistently have argued for
more prosecutors, public defenders and judges.

But interviews with approximately 75 prosecutors, defense lawyers, court
officials and other judges reveal a system that often operates for the
personal convenience of a handful of powerful judges.

``Work is not valued; efficiency is not valued,'' says one Superior Court
judge who has presided over criminal cases in the past. Like most people
interviewed for this investigation, the judge insisted on anonymity. Judges
feared alienating their colleagues while lawyers feared offending the
judges in whose courts they must appear.

``These folks have set the tone,'' the judge continued, ``and it ripples
through the whole system.''

An open secret

Criminal courts close early on Fridays

Indeed, it has been an open secret in the local judiciary for at least a
decade that the criminal courts close early on Fridays, no matter how many
cases are awaiting trial.

Fridays are known as ``kick-back'' days, a day court insiders say some
judges plan for all week.

``It's a bunch of boys, a fraternity engaged in that kind of stuff,'' one
veteran defense attorney says of the golfing judges, who frequently arrive
at the Hall on Fridays sporting slacks and golf shirts. ``In the back
hallways, they brag about their games, [and] someone will have a driver or
putter and show it off.''

No one has been able to change this culture because, as one prominent San
Jose jurist puts it, ``We'd have to go to war (with some of the Hall's
judges) to deal with this.''

To document its findings, the Mercury News focused on 14 of 15 Superior
Court judges who work in the Hall of Justice, the glass-modern six-story
structure adjacent to the county jail on Hedding Street in San Jose. In
their 14 courtrooms, those judges hear the most serious criminal cases. The
15th judge is the supervising judge who mostly has an administrative role.

From mid-April to mid-August, reporters checked those courtrooms twice
every day to see if they were open or closed. The judges' parking lot was
monitored to determine if cars were gone at the same time a courtroom was
locked, and judges were followed when they left early on Fridays.

Among the findings:

On Fridays, several judges began leaving the Hall before noon. By 2:30
p.m., on average half of the 14 courtrooms in the Hall were closed. On many
of these days, nearly all the courtrooms were shut.

Four judges played golf or went home nearly every Friday afternoon, and
occasionally some of them played on other weekdays: Thomas Hastings, Daniel
Creed, Hugh Mullin III and Robert Foley. A fifth, Rene Navarro, joined them
on occasion and sometimes left for home after working Friday mornings.
Another judge, John Ball, says that he may have golfed on Fridays in the
past but has not made it a practice this year. On some afternoons, he left
the Hall early to attend to his wife, who is ill.

Judge Robert Ahern occasionally went home, ran errands or attended to
personal business on Fridays, while Judge Ronald Lisk was gone some Friday
afternoons.

The remaining six judges generally put in full days on Fridays.

A group of criminal judges took the same days off for vacation several
times during the year. Eight judges took off the entire first week of June,
seven for an annual golfing retreat at a resort near Donner Pass.

Judges, who earn $110,612 a year, came and went as they pleased under a
vacation policy that by all accounts is an honor system.

``Superior Court's vacation policy has always been to have no policy,''
says one veteran Superior Court judge.

Fuzzy vacation time

Record-keeping appears unreliable

While many other court systems around the state record judges' vacation
time in detail, record-keeping for Superior Court judges in Santa Clara
County is unreliable at best.

Judges Mullin and Foley, for example, produced documents indicating that
they put in for vacation time for some weekdays that they played golf, but
the dates were not reflected in the court's vacation records.

Under this largely unregulated system, judges can for all practical
purposes take as much vacation each year as they want, although there is a
statewide guideline of 21 days annually.

Those guidelines call for the presiding judge to be notified ``reasonably''
in advance of a judge's intention to take off a half day or more. Most of
the court's judges are diligent about putting in for vacation in advance,
based on a review of Superior Court's 1997 and 1998 vacation logs.

But some of the Hall judges, such as Hastings and Mullin, take
spur-of-the-moment vacation days for their Friday golf outings. They say
they do not need to apply for them in advance.

``The only person who tracks a judge's vacation in the Superior Court is
the judge,'' Hastings says. ``Some years, a judge might take 10 days; next
year, they might take 40 days. That's up to the individual judge.''

Other Hall of Justice judges who play golf regularly say they are taking
legitimate vacation time when they head out early on Fridays. Navarro
declined to comment, saying Hastings spoke for him. Foley, who handles
mostly non-trial drug cases, says he takes off a half day on Fridays to
golf. He says he compensates for that by reviewing legal documents on many
Saturdays and Sundays.

``There have been years in the past where I have not taken any vacation,''
Foley says. ``You can't believe how relaxing golf is. I get to see some
green grass, breathe some fresh air, watch the little animals run around,
and just forget about this legal stuff, because it's all going to be there
on Saturday morning.''

Members of the legal community credit Foley with an extraordinary work
ethic and characterize Hastings as one of the county's best criminal-trial
judges.

But many judges and lawyers are outraged that these judges abandon the Hall
of Justice early on Fridays for a round of golf, regardless of the
justification. A majority of those interviewed are convinced that the
largest court system in the Bay Area cannot afford to lose a weekday's work.

``When the judges leave, that means there is a bailiff, clerk and court
reporter doing nothing,'' says one prosecutor. ``Meanwhile, our jails are
overcrowded with people who should be sentenced and on their way to prison.
It is cheating the taxpayers. It's not the way things were set up to be --
for a group of judges to predictably take Fridays off to pursue their sport.''

Adds former Superior Court Judge Peter Stone, a respected leader in the
legal community who retired last year: ``The obligation of every judge is
to devote every moment of professional time to serving the public. To the
extent the facts turn out to be otherwise, corrective action needs to be
taken by each of these individuals.''

Weekend work

Judges say they compensate for Fridays

The Hall judges who leave early on Fridays insist they are fulfilling those
obligations. Although courts are not in session nights or weekends, the
judges say they take work associated with their ongoing trials home or come
in on weekends to do it.

Judges such as Hastings, Creed and Mullin tend to run their complex murder
trials four days a week, giving defense attorneys and prosecutors a chance
to keep up with their other cases on Fridays. Ahern sometimes runs trials
on Fridays.

According to the Hall judges, everyone needs a break in grueling trials
that stretch for months, from court reporters warding off repetitive strain
injuries to jurors who welcome a chance to attend to personal business.

Indeed, many attorneys welcome the opportunity to catch up on work outside
the courtroom.

Jack Marshall, chief trial deputy district attorney, says he doesn't care
what judges do ``as long as they do good work. I judge a judge by how he
conducts himself when he's working. I think that's why a bunch of us aren't
particularly offended. Fridays, particularly Friday afternoons, have
generally been a slow day around the courthouse. It's been that way for 35
years.''

The judges say the Friday breaks are important for them, too.

``The accusation we play golf on Friday is true, but quite frankly for my
mental health, I've got to do something to relieve the stress,'' says
Creed. ``I suppose I could be doing on Friday afternoon what I do on Sunday
morning, but this is not a 9 to 5 job where you're getting paid by the
hour. And if you'll check, you'll find I've never turned down work.''

Adds Mullin: It [golf] is for relaxation. We do become isolated because of
the contact you can't have. If nothing else, we vent frustration out there.''

To-do list

Plenty of work, other judges say

Many in the legal community say the judges who leave early on Fridays have
maneuvered the system so that they do little or no work other than handling
their ongoing trials.

And there is plenty of other work Hall jurists could do on Fridays, say
many judges, lawyers and court administrators, to help alleviate the
overload in the court system.

Judges could be settling other cases, sentencing defendants, hearing legal
motions or pitching in to help on mundane court business, like signing
search warrants or improving court administration.

Many judges handle such work, but court officials say the judges who leave
early on Fridays usually are not sent such matters because it is wellknown
that they won't be there to do it. These judges also have successfully
resisted being rotated out of long-trial duty to other assignments.

Paul Teilh, a retired judge who hears cases on special assignment, runs
trials five days a week whenever possible.

Known by some lawyers as ``The General'' for his hard-nosed approach, Teilh
tries more cases per year than just about any judge in the county. Last
year, Teilh handled 36 of the 308 felony jury trials completed by the courts.

``I don't agree a judge should leave if there is nothing to do,'' says
Teilh, who is 82. ``He could take up other cases.''

Other Hall of Justice judges say they find ample work on Fridays.

``There's always plenty of work for me to do,'' says Judge Alden Danner.
``Come and see my chambers. I've got piles of work to do.''

The judges who leave early also argue that they have the most legally and
psychologically demanding job in the judiciary -- trying and sentencing
murderers such as Richard Allen Davis. And they say their job is more
strenuous than the work done by their colleagues in Juvenile or Family
Court, or in the civil courts, where the major Silicon Valley lawsuits are
heard.

``All judges are not equal,'' says Ball, a criminal court judge. ``We don't
do the same job. The judges that you are picking on are the equivalent of
our brain surgeons. The criminal division is immensely harder than the
civil division.''

Other judges couldn't disagree more. They point out that in most cases,
there is little extra legal work associated with running a long criminal
trial.

``Once I pick juries, I just sit back on the bench and call balls and
strikes,'' says a San Francisco Superior Court judge who handles long
criminal trials. ``It's the easiest thing to do once the trial starts.''

And many Santa Clara County judges take pride in a civil court system that
sorts out multimillion-dollar disputes between the valley's high-tech
companies, as well as thousands of citizen lawsuits each year, ranging from
product defect complaints to challenges to local government.

The civil-court system is ranked as one of the most efficient in
California, a sharp contrast to its Hall of Justice counterpart.

These judges resent attitudes like Ball's, and take a dim view of what one
Superior Court judge labeled ``the culture that is entrenched'' in the
criminal division.

``There has been flagrant abuse for years, and there is a certain
resentment by judges who don't take off every Friday,'' says another
Superior Court judge. ``Even if they're taking vacation, that's a lot of
judges to be missing at once.''

Presiding Judge Leslie Nichols defends the performance of the criminal
courts, saying criminal cases ``are attended to with all reasonable
dispatch.''

Catherine Gallagher, the supervising judge in the criminal courts, insists
there is no connection between a backlog and a judge like Hastings or Creed
taking off on a Friday. During her one-year tenure, Gallagher says, she has
never had to search in vain for a judge if she had work for them on a Friday.

``Could I fill everybody up on Fridays? I don't think I can,'' she says.

Adds Judge Jack Komar, who supervised the criminal courts in 1995-96 and
who will become presiding judge next year: ``Was the business of the courts
hurt by judges not being there on Fridays? Not one bit in the two years I
was there. I never had a case where both sides were ready when I couldn't
find a judge. I couldn't find cases to send out because the DA was tied up
or a defense attorney was not ready. If we had more public attorneys,
deputy DAs and public defenders, more cases would be processed.''

But the district attorney says his office is ready to go to trial in the
vast majority of cases. Supervising Deputy District Attorney Donald
Shearer, who is in charge of the felony calendar in the criminal courts,
says, ``We are generally ready for trial 80 percent of the time.''

One public defender, who asked not to be identified, bristled at the
suggestion that the troubles in the criminal courts stem from a shortage of
lawyers.

``Everybody knows the Hall of Justice is pretty much shut down on Friday,''
this attorney said. ``For them to shift the responsibility for that to
government attorneys is outrageous.''

David Mann, who is Shearer's counterpart in the public defender's office,
says his office is ready to discuss or try 50 percent to 60 percent of
pending cases at any time. Defense lawyers typically are not prepared to go
to trial as fast as prosecutors, in part because it takes time to respond
to the government's case and in part because delay often is central to
defense strategy.

``It's true that we're not ready as often as the district attorney. But
there are plenty of cases on any calendar for discussion that could happen
any day of the week. So many more cases end up settling than going to
trial,'' Mann says.

The audit commissioned by the county stressed that despite the backlog in
the criminal courts, local judges are not burdened with heavy workloads
compared with other state courts.

Statewide figures back this up: Santa Clara County last year ranked only
43rd among the state's 58 counties in the number of civil and criminal
cases filed per judge, 34th in cases set for trial per judge, and 27th in
jury trials per judge.

A growing backlog

Inmates wait longer to go to trial

Meanwhile, the criminal backlog is taking its toll. When cases aren't
processed, the jails crowd up. In the past six years, the average length of
time inmates stay in county jails has increased 111 percent.

It costs the county $23,600 to incarcerate an inmate for a year. As of
Sept. 2, county jails housed 4,568 inmates, 121 percent of maximum
capacity, according to county jail figures. This September, 2,433 jail
inmates, or 53 percent, were awaiting trial, in trial or awaiting
sentencing. And the time they are waiting is getting longer. According to
the county audit, the average length of stay in the county jail for
non-sentenced prisoners increased from 67 days in May 1991 to 142 days in
May 1997.

``The biggest concern we have is that the ratio has reversed itself,'' says
Rick Kitson, a county jail spokesman. ``Ten years ago, most inmates were
sentenced and serving time locally. Now, most are in the court or judicial
process.''

In a fuming letter to the board of supervisors responding to the audit, the
judges pinned the blame for the state of the criminal docket squarely on a
lack of resources. In addition to arguing that the county needs more public
defenders and prosecutors available for cases, the court suggested that it
might need more judges as well.

``If jail overcrowding is, in part, a consequence of cases being processed
through the system as fast as possible, that would appear to be the
consequence of inadequate numbers of public lawyers and judges, not the
processes themselves,'' wrote Court Executive Steve Love in a letter
speaking for the entire court.

Regardless of what would solve the system's problems, some judges and legal
experts worry about how the image of the courts is affected by judges
playing golf on Fridays.

The state Commission on Judicial Performance, the disciplinary arm of the
state judiciary, has punished judges in the past for improperly leaving
their jobs.

Public confidence

Some judges worry about court integrity

``The first ethical duty of a judge is to maintain public confidence in the
integrity of the judiciary,'' says San Jose federal Judge Jeremy Fogel, a
longtime Superior Court judge and one of the leading judicial ethics
experts in the state. ``The court needs to look at its institutional
structure in a way that maintains public confidence in the institution.''

Adds Edward Davila, president of the Santa Clara County Bar Association and
a veteran criminal defense attorney: ``These types of things may allow the
public to lose confidence in our system of justice. It opens everybody in
the legal community, perhaps unfairly, to criticism. It would be a pity if
the good work by the collective bench is diminished in any way by this.''

The Hall judges who leave early say public image is not in their control.

``I can't affect that perception,'' says Hastings. ``That's where you (the
media) come in. You can be very positive. You can talk about the fine work
the criminal justice (system) is doing in Santa Clara County, and you can
talk about the fine work the criminal division of this court is doing.''

As with all things in the criminal justice system, the debate over the
Friday workload comes back to the judges. The state Judicial Council, which
sets policy for all California judges, makes it clear in its rules that
``the court, not the lawyers or litigants, should control the pace of
litigation. A strong judicial commitment is essential to reducing delay and
maintaining a current docket.''

A majority of the county's judges are hopeful that the current culture of
casual Fridays at the Hall will go the way of the valley's fruit orchards.
Like courts throughout the state, the county is struggling with the impact
of the 4-year-old ``three strikes, you're out'' law, which results in more
defendants going to trial because they have nothing to gain by settling a
third conviction through plea bargaining.

The district attorney's office also is projecting a steady increase in
felony cases over the next 10 years.

The problem is now landing on the desk of Komar, the incoming presiding
judge. The court system is already beginning to overhaul its traditional
structure by merging the 79 judges of Municipal and Superior Courts into
one mega-court.

The task of being a presiding judge is often likened to ``herding cats.''
But Komar, while defending the actions of the Hall judges, plans to make
some changes.

``In the new unified courts,'' Komar says, ``there will be plenty of work
to do on Fridays.''

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Checked-by: Pat Dolan