RETIRED JUDGE'S REALITY GAUGE IS AS DEFINITIVE AS A GAVEL RAP
By Fred Dickey
June 27, 2016
A court is in two parts - the judge and everyone else. The judge wears a robe and is seated on high, deliberately, so those below will have to look up. In that forbidding room, the person sitting there is the instrument of God, above questioning.
That just makes me want to ask some questions.
One I've always wanted to ask a judge is: You're in the middle of a boring trial, the room is stuffy, you've had a big lunch and a lawyer is going on and on in a dull monotone, and - you know what's next - you doze off.
Then one of the lawyers jars you awake by uttering the words you most don't want to hear.
"Your honor, I object ..."
All of a sudden, everyone's watching and waiting for pontificating that would shame King Solomon.
Allan J. Preckel is a retired judge who I suspect has never dodged a question. And he doesn't hesitate on this one.
"Back when I started, when a judge nodded off and all of a sudden be brought up short by some lawyer's question, he would just say, ‘Now, hmm, counsel, would you mind rephrasing that last question, please?'
"Now, with computerized court reporting, if I nodded off after a big lunch and some attorney brought me back to my senses by questioning something, I just glanced at my monitor and read it."
Preckel, 69, retired from the bench in East County Superior Court last year after 25 years "to the day." Before that, he was a deputy district attorney. Now he looks back on all that in the placid comfort of his Poway home.
Preckel was raised in Lemon Grove when it still grew lemons, actually, groves of lemons. He has two daughters and became a widower last year after 42 years of marriage.
He is a friendly, open and well-organized man. He probably keeps a record of his oil changes. The things he says are thought-out and precise - judicious, we might say.
Don't challenge Preckel on details that others would have long forgotten. He is a Dewey decimal system of every major case that came before him. Perhaps he got that way by years of running his fingers over law book pages, or maybe he was born that way. I'd bet on the latter.
Preckel was all-in on criminal cases and managed to avoid judging civil trials. "I don't even like to spell ‘civil,' " he says. "I never got off on listening to middle-age men fighting over money."
The cast of characters in criminal trials was more interesting. No Rotarians with modest hair standing before the bar.
He did some tough duty that could have justified a stiff drink when he got home. He decreed three death penalties and gave out "at least 100" life sentences. Each one remains in his mind as a memory of life gone terribly wrong, for both victim and perpetrator.
Has criminal justice changed in 25 years?
"Criminals, per se, haven't changed. There are bad people, and there always will be. Some seem to be just born that way and are destined to live their lives that way. However, how we treat criminals and how society seeks to deal with them has changed."
He says that during the uptick of violent crime in the '80s and '90s, the state Legislature took a lot of discretion out of the hands of judges by imposing fixed-sentence guidelines.
The mood was that the public wasn't adequately protected, and judges couldn't be trusted to do the job.
"Back then, rehabilitation had lost its luster: These were criminals, and they were going to remain criminals. Politicians shook in their boots lest they be perceived as being ‘soft on crime.' "
The result was harsher, mandated sentences that crammed the prisons.
Preckel says the pendulum is swinging back in favor of rehabilitation and what he sarcastically refers to as the dumbing-down of the criminal justice system.
What do you mean?
"Well, Proposition 47, passed last year, is a good example. It makes many crimes that had been felonies now misdemeanors. Street possession of every drug under the sun is now a misdemeanor, almost without exception. If you've got a couple of bundles of heroin and you're a heroin addict, that new possession charge is only a misdemeanor."
Should it be a felony?
"I think it should, at least within the discretion of a prosecutor and the sentencing court."
Another example of Prop. 47 laxity is shoplifting, Preckel says. Formerly, multiple convictions of petty theft would become a felony. Now, if you even have 100 offenses, it remains a misdemeanor.
"I still believe in the concept of deterrence," Preckel says. "If I sentence you to prison, hopefully I'm deterring you from doing it again."
But might not prison turn me into a hardened criminal?
"That's possible, but maybe you already are one. And while you are there, you won't be committing any more crimes. Sentencing someone to prison is not something any judge takes lightly."
Preckel believes that from a defense-strategy standpoint, a defendant should almost always decline to take the stand. He points out that defendants are rarely in the Mensa-genius class, and a prosecutor can tie them in knots, whether innocent or guilty.
He says, "We tend to say,‘If I were ever wrongly accused, by God, I'd shout my innocence from the rooftops!' No. That's not how it happens. That's theatrics for ‘Law and Order,' not for real life in the courtroom."
What do you think of the hate-crime enhancement?
"Not a whole lot. I never really embraced the idea there ought to be a greater sentence just because the victim is singled out as a minority. A victim is a victim."
Of all the defense attorneys that have come before you, who are the most impressive, or at least that you enjoyed having in your court?
"Well, Roland Haddad is a private practitioner in East County. He's good, and very colorful. We kind of enjoyed pushing each other's buttons.
"Another was Gloria Collins. She had a career in the DA's office and retired (from private practice) a number of years ago. She has a large animal rescue operation off of Highway 67.
"She's back in private practice doing mainly appointed work on serious cases. She's done very well for herself. She joked that she had to come out of retirement to pay the feed bill.
"Paul Pfingst is an excellent trial attorney. I thought he absolutely sucked as the elected district attorney. He politicized the office. He really fractured the office badly during the eight years he was the head of it (1995-2003). He just wasn't cut out for administration."
How's Bonnie Dumanis doing?
"Depends on whom you ask. Once upon a time, Bonnie was a deputy under my supervision in the DA's office. She's always been a terrific people person and is extremely good building relationships, and bridging diverse interests and agendas.
"I do get tired of her press conferences, where everyone in uniform gets together in a staged presentation. They're all in lockstep, and - ‘Look what wonders we have wrought to benefit the community!' "
Preckel was appointed to the bench in 1989 by a Republican, Gov. George Deukmejian.
"I am not a political animal and never pretended to be. The process of becoming a judge has a political aspect to it, of course. I was fortunate in that regard to know people who knew people and could get my name on the desk of the governor."
Have you "seen it all," as we say?
"Well, I used to think that, and then I'd be brought up short by the very next case that walked through the door, and I'd think, ‘Damn, I never saw one human being do that to another before.' "
I suspect you didn't have to go far into a trial to discern if defendants were innocent or guilty, right?
"Well, yeah. Usually, I had a lot of background material. I typically got a pretty good read on the case before the jury ever walked into the courtroom."
Would you be bothered when a defendant got off that you were convinced was guilty?
"It didn't happen very often. The system is not perfect because it relies upon, forgive me, schmucks like you and me with all our foibles and imperfections."
Do you have a lot of faith in juries?
"Juries seldom disappointed me. Every once in a while, they would surprise me, but I learned a long time ago not to try to predict what 12 people are going to do in a small room. The care and feeding of a jury is an art that a judge acquires over time."
What do you think of the death penalty?
"I lost my enthusiasm for the death penalty a number of years ago. The death penalty system is dysfunctional. It absolutely is. I put three on death row. Two are still there. The third died of natural causes. That's the leading cause of death on death row. The sentences are not carried out. Jurors today generally seem less willing to impose it."
You said you sent some "real animals" to prison.
"Yeah, exactly. They're human beings maybe, but they're even more animalistic."
Do you believe in evil?
"Oh, yeah. I've seen lots of very, very vicious individuals. But I believe in goodness, too."
Preckel puts a name on the evil he refers to, and the face is stored in his memory. In 2006, he sentenced gang-banger Marcos Antonio Moedano, then 22, of El Cajon to life without the possibility of parole for three murders. Moedano plea-bargained to avoid the death penalty.
Preckel says, "He was a true sociopath acting (as though) life had no meaning. His killings targeted rival gang members, but also civilian strangers (who were) just in the wrong place at the wrong time.
"A cocky gang-banger. Pure evil."
As hard as evil is to deal with, much more so is the sadness from watching children trapped as witnesses to their mother's murder. Even from 1996, one such case is still vivid in Preckel's mind.
Hasou Hasana, an Iraqi immigrant, killed his wife by stabbing her seven times with a filleting knife. The 53-year-old from Santee claimed mental problems that the jury didn't buy. It found him guilty of first-degree murder.
But it was the five daughters to whom Preckel gave heart as he watched three of them testify. They were 9, 11 and 18.
The oldest referred to Hasana as, "unfortunately, my father."
He says, "You can't personalize (such cases). If you do, it'll eat you up. I always tried to not take it home with me, and try to remember that what I saw during my working day was the worst of humanity, but it didn't represent the overall human condition. I had to hang on to that thought."
Someone unmoved by the aura of power once said, "People forget that judges are just lawyers in robes."
Like others holding the staff (or cudgel) of authority, judges today have had holes poked in their robes of mystique. Sometimes they deserve it, sometimes not. Nonetheless, even the cynic has to swallow hard and admit we need authority figures we can trust and rely upon.
Certainly, judges need to maintain a distance to avoid the squabbles that buzz like flies around the law and their cases. However, aloofness, like sarcasm, can go overboard and come across as arrogance.
Allen Preckel survived a quarter-century in a job where everyone in the room - lawyers, clerks, bailiffs (and you can bet defendants) - eagerly nodded at his every utterance, including "the" and "uh." That's a heady brew on which to stay sober.
He remained a regular guy, and for that I give him a nod - a sincere one.
Fred Dickey's home page is freddickey.net. He believes every life is an adventure and welcomes ideas at firstname.lastname@example.org
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