Some Light at the End of the Judge’s Tunnel

The problems regarding judges and bail have been discussed in my previous posts. Although the issues are real and, in some ways, disheartening, there are some possible solutions to the problem.

Since California Superior Court Judges compete in nonpartisan races, citizens can vote and have an effect on the judges serving their county. Nonpartisan races for judges are held every June and November of even numbered years. Many judges are appointed by the governor instead of via a nonpartisan election; however, those terms have limits and judges must participate in an election in order to keep their judicial seats. Superior Court (trial court) judges serve staggered six-year terms. Every two years a third of the superior court judges are up for re-election. Continue reading “Some Light at the End of the Judge’s Tunnel”

Slamming Down the Gavel on Judges and Bail

My last post discussed formal requirements that judges are required to use when setting bail for defendants in California. As in many other areas of the law, what you are supposed to do and what actually happens in practice often deviate.

Bail is set by the bail schedule and then a judge can adjust the bail amount. Because the bail schedule is determined by the statutory offense and not the facts of each individual case, judges should not solely rely on the bail schedule when making determinations. Judges have a wide range of factors they can look at when setting bail that I have previously discussed (community ties, risk to society, etc.). Much of the individual information is in PTS and police reports, which judges can review at arraignment. Additionally, during arraignment, defense and prosecution can raise specific arguments or facts not contained in those reports. Finally the judge can, and often does, ask specific questions of the defendant, the counsel, and others present. (See PTS in custody arraignment process.) Continue reading “Slamming Down the Gavel on Judges and Bail”

When does the Judge come into the bail picture?

My earlier post discussed the training requirements for new judges in California. There is an extensive amount of material and training available to judges, however the issue seems to be the timing component. Judges can hear cases for as much as six months before having any formal training in their new role as a judge. Now, by looking at the role of judges in determining bail we can better understand why this timing component can be problematic for new judges.

What is the judge’s role in bail?

When a defendant is arrested and booked on charges they have the option to be released on their own-recognizance (OR) or pay a bail amount to be released from custody. The bail amount for defendants is set by a Judge or Commissioner. “If bail is not posted, the defendant will remain in-custody until s/he is taken to court for their arraignment within 72 business hours (excluding weekends and holidays).”(Pre-Trial Service ). The defendant is then taken to court for arraignment. At this point judges are given a report from pre-trial services regarding their recommendations regarding releasing the defendant or not. Pre-trial services may request that a defendant be released on O.R., Supervised O.R., or stay in custody. The final decision on whether to release a defendant on O.R., supervised O.R., or set a bail amount rests solely at the discretion of the Judge hearing the defendant’s case. “Penal Code Section 1270 (page 4) states that defendants charged with misdemeanors are entitled to an OR release unless the judge finds that to do so will endanger the public or not ensure the defendant’s appearance in court.” Further along in the post I will discuss what the pre-trial service report entails. Continue reading “When does the Judge come into the bail picture?”

Setting the Stage for Judges’ Role in Bail

Imagine you are an attorney that has practiced tax law for the past twenty years. You are known to be a well-respected and diligent attorney in this area of law. Now you have decided to take the next step in your legal career and become a Superior Court Judge. The qualifications to become a judge in California are as follows: to be a United States citizen, a resident of the State of California, and a California licensed attorney for ten years. An attorney can be appointed to the bench by either a nonpartisan election or the Governor of California can appoint you. Each new trial court judge and subordinate judicial officer (commissioner) must complete the “new judge education” before taking the bench. New Judge Education is required by all “new” judges and includes the New Judge Orientation Program and Judicial College. As a new judge if you are assigned to go to criminal court you will have to get up to speed on procedural and substantive law that you were not exposed to as a tax attorney-including the law of bail.

What kind of training do judges receive before taking the bench?

Judges have three primary forms of training: New Judges Orientation, an orientation course in his or her primary assignment, and the Judicial College. Judges actually are not required to take much training before hearing cases-they just need to get training within a certain period of time after taking the oath. For example, new judges can hear cases for as long as two years before attending Judicial College.

Rule 10.462 lays out the minimum education requirements for new judges in California. The New Judge Orientation Program (NJO) must be taken within six months of taking the oath as a judge. This is a weeklong program that teaches new judges the basics of the position. A judge can begin hearing cases before NJO, however, as long as the program is taken within six months. Judges are also required to take an orientation course in his or her primary assignment (civil, criminal, family, juvenile delinquency or dependency, probate, or traffic) within one year of taking the oath as a judge or subordinate officer. New Judges must also take the two-week course at the B.E. Witkins Judicial College of California within two years of taking the oath as a judge. However, this training is only offered every summer. This essentially means that a new judge could be appointed in September and be required to hold a calendar for nine months before having the opportunity to attend Judicial College.

Throughout the course of your career as a judge you are required to complete 30 hours of continuing education every 3 years. New judge education courses do not apply to these required hours. At least 15 hours must be completed in live, face-to-face education.

Being a tax attorney newly appointed as a judge you could be hearing cases for six months before having orientation, a year before ever taking an orientation course in this new area of law, and up to two years before you ever attend Judicial College.

Santa Clara County Numbers

Out of the fifteen new judges appointed in Santa Clara County since 2011 four have a previous background in criminal law, nine have a background in another area of law, and two judges were unreported. Now imagine the presiding judge in Santa Clara County decides to assign you to a criminal calendar. Having had a career in tax law this is an unknown area. Many judges sit in watching another judge before taking the bench solo in order to “learn the ropes”. Leading up to your first calendar sitting on the bench as a judge you have possibly attended NJO, maybe sat in for a few weeks observing the calendar, and most likely not yet attended Judicial College. For some judges without an extensive background in criminal law, nine judges since 2011 in Santa Clara County, this may be an intimidating position to be in.

Even those attorneys having an extensive background in criminal law should still be properly trained before taking the bench and engaging in a completely different role. For example, making determinations about a specific individual regarding bail is something no attorney, criminal or not, has had to do during their career. Having the powerful position of determining the future course of someone’s life is not a task to be taken lightly. However, there are resources such training manuals to assist judges in these difficult situations.

How do other states compare to California?

New Jersey is one of only eight states in which no judges stand for election: every judge is appointed. Unique to New Jersey is the Judicial Performance and Education Programs. Included in New Jersey’s Judicial Education Programs is the Orientation Program which is “designed to facilitate the transition of newly-appointed judges from bar to bench and to provide comprehensive training in the State’s judicial practices and procedures.” New judges are also given a mentor judge who they can turn to for information and help during their new role.

The Division Comprehensive Judicial Orientation Programs (CJOP) offers newly appointed and rotated judges immediate training in their new assignments from experienced judge faculty. For example, a newly-appointed Superior Court Judge who is assigned to Family Court is required to complete this program before hearing any case. This program is even offered and required for all veteran judges who are reassigned to a new role from a different division (i.e. criminal).

Clearly New Jersey is not lacking in judicial training for judges. Judges have a wide range of opportunities and requirements in order to be properly trained in their new role before sitting on cases just as California does. The main difference between California and New Jersey is the timing component. The programs offered in both states are very similar and comprehensive. However, in New Jersey new judges are REQUIRED to at least have some training before they hear a case.

When you compare the training practices that judges in California, specifically Santa Clara County, receive to other programs in place such as in New Jersey, you begin to understand how there may be issues regarding judges’ duties, such as determining and setting bail. If newly appointed judges receive little to no training before hearing a case what factors are they considering before making their determinations regarding issues such as bail? What information do they know about the defendant before setting bail? Do judges simply listen to superiors and colleagues when attempting to make difficult bail determinations? These are all questions that I hope to answer with my further blog posts to hopefully understand and attempt to fix problems that judges face when setting bail for defendants.

Judging Judges: The Role of Judges in Bail

Judges are responsible for setting a county’s bail schedule and for making individual bail/release decisions. My research will focus on the legal and policy questions surrounding judges’ role in bail, as well as some nuts and bolts questions about the bail determination process. What information do judges have about a defendant at the time bail is determined? What kind of training, in bail determination, if any, are judges given before or during their time on the bench? By answering these questions we attempt to better inform or train judges in problem areas.

My name is Sarah Saldivar, and I’m a current 2L at Santa Clara University School of Law. I majored in criminal justice and political science at Chico State University. Inspired by this area I am seeking a career in criminal law, especially with indigent clients. I am a native Californian who is passionate about the future of this state especially in regards to the issues with bail in both our state and the County of Santa Clara.