Happy Thanksgiving
This is a summary of an interview Mindy did of her Grandpa Hogge, in November 2004, concerning his mother, Great-grandma Roa Hogge (bracketed info added):
Mother always took us to church. Dad didn’t go, but mother did. She always made sure that we went to church. Dad supported mother and us, but he didn’t go to church. Mother used to write me in Oklahoma [when he was in Office Candidate School]. They started a Sunday school in Clarksburg and when she wrote me she would quote scriptures in my letters for me to meditate on. My favorite scripture till this day is Matt. 5:16. She confided in me being the oldest. She showed great commitment in Primary. She loved children. Mother had instilled that kind of commitment in her boys (us). I cannot remember ever wanting to not go to church. Dad never raised his voice to Mother. Dad’s respect for mother helped me with my testimony. Dad encouraged us to respect mother. Mother was always very positive about things; she was the positive one in the family. She was the example for all of us. She was the center of the family; everyone looked to her for counsel and advice. She was always there. She was the one who told us that she loved us and that my dad loved us. She loved to have fun and she loved to laugh. We’d make her wet her pants from laughing so hard. She gained a testimony of the gospel during her growing up years in Utah. [She was baptized when she was 14 years old, after her father passed away.] Church was the center of the community activity. It went deeper than just being a member. She understood it a lot better than we understood it at the time. I Know that My Redeemer Lives was sung at her funeral and it was very fitting for Mother. She always had a desire to go to the temple, but back then you couldn’t go to the temple unless your husband went. She was a remarkable lady. I shudder to think what would have happened if I didn’t have someone in my life to encourage me to do those things. She instilled in us desire and devotion to the gospel. Generations have been blessed by Mother with strength in the gospel. It must have come from mother because it didn’t come from dad.
Her name is Roa: August 11, 1913, born in Oasis, Utah. Her father was a drunk but loved his family very much. He died September 15, 1922 of a heart attack. Her mother died of cancer when Roa was 16, so her and her siblings all took care of each other. She met her husband in Burley, Idaho. Her husband was active in the church until they left home and he began smoking and drinking, but he always supported Roa. They had three boys, Wallace, Richard, and Ralph. She always went to church by herself and insisted that her boys go to church with her. She was the most loving mother. People said when she’d look at her boys she would get a twinkle in her eye. She was never afraid of work, and family was the most important thing in her life. She was a Primary president for 13 years. She loved children. In 1951, she came down with cancer. She died October 7, 1955. She never went to the temple while she was here on earth but that work has been done for her. Her sons were 20, 18, and 10 when she died. All three boys have been bishops; one has been a stake president for nine years; another has been working in the Anchorage, Alaska temple since it opened; and the other died a few years ago while he was bishop. All three have been strong leaders in the church and have raised families with a strong foundation in the church. All three received their testimonies from their mother. The love and values that were taught in the home lived on through generations. She was never happier than when she was with her boys. She was their best friend. Her family was the number one obligation in her life.
Her full name is Mary Roanne Hogge, my great-grandma.
Thursday, November 25, 2004
Saturday, November 13, 2004
Foreknowledge, Predestination, and Agency
When I was younger, I had a conversation with my grandfather (Stowers) concerning the foreknowledge of God. It troubled him that our Heavenly Father knew the end from the beginning because he perceived this as a form of predestination. These are my words, not his. But I think they accurately reflect, if in a superficial way, what bothered him. If God knows the end from the beginning, why does he let some fail? While I think I have always understood the concept of God’s foreknowledge and its relationship to the agency he has given us, I recently found these words of Elder James Talmage, in the Great Apostasy (pp. 19-21), which succinctly and authoritatively describe the principles:
Respecting the foreknowledge of God, let it not be said that divine omniscience is of itself a determining cause whereby events are inevitably brought to pass. A mortal father who knows the weaknesses and frailties of his son may by reason of that knowledge sorrowfully predict the calamities and sufferings awaiting his wayward boy. He may foresee in that son's future a forfeiture of blessings that could have been won, loss of position, self-respect, reputation and honor; even the dark shadows of a felon's cell and the night of a drunkard's grave may appear in the saddening visions of that fond father's soul; yet, convinced by experience of the impossibility of bringing about that son's reform, he foresees the dread developments of the future, and he finds but sorrow and anguish in his knowledge. Can it be said that the father's foreknowledge is a cause of the son's sinful life? The son, perchance, has reached his maturity; he is the master of his own destiny; a free agent unto himself. The father is powerless to control by force or to direct by arbitrary command; and, while he would gladly make any effort or sacrifice to save his son from the fate impending, he fears for what seems to be an awful certainty. But surely that thoughtful, prayerful, loving parent does not contribute to the son's waywardness because of his knowledge. To reason otherwise would be to say that a neglectful father, who takes not the trouble to study the nature and character of his son, who shuts his eyes to sinful tendencies, and rests in careless indifference as to the probable future, will by his very heartlessness be benefitting his child, because his lack of forethought cannot operate as a contributory cause to dereliction.
Our Heavenly Father has a full knowledge of the nature and dispositions of each of His children, a knowledge gained by long observation and experience in the past eternity of our primeval childhood; a knowledge compared with which that gained by earthly parents through mortal experience with their children is infinitesimally small. By reason of that surpassing knowledge, God reads the future of child and children, of men individually and of men collectively as communities and nations; He knows what each will do under given conditions, and sees the end from the beginning. His foreknowledge is based on intelligence and reason; He foresees the future as a state which naturally and surely will be; not as one which must be because He has arbitrarily willed that it shall be.
But, it may be argued that in the illustrative instance given above—that of the earthly parent and the wayward son,—the father had not the power to change the sad course of sin whereby his son is hastening to ignominy and destruction; while the omnipotent Father can save if He will. In reply this is to be said: The Father of souls has endowed His children with the divine birth-right of free agency; He does not and will not control them by arbitrary force; He impels no man toward sin; He compels none to righteousness. Unto man has been given freedom to act for himself; and, associated with this independence, is the fact of strict responsibility and the assurance of individual accountability. In the judgment with which we shall be judged, all the conditions and circumstances of our lives shall be considered. The inborn tendencies due to heredity, the effect of environment whether conducive to good or evil, the wholesome teachings of youth, or the absence of good instruction—these and all other contributory elements must be taken into account in the rendering of a just verdict as to the soul's guilt or innocence. Nevertheless, the divine wisdom makes plain what will be the result with given conditions operating on known natures and dispositions of men; while every individual is free to choose good or evil within the limits of the many conditions existing and operative.
Respecting the foreknowledge of God, let it not be said that divine omniscience is of itself a determining cause whereby events are inevitably brought to pass. A mortal father who knows the weaknesses and frailties of his son may by reason of that knowledge sorrowfully predict the calamities and sufferings awaiting his wayward boy. He may foresee in that son's future a forfeiture of blessings that could have been won, loss of position, self-respect, reputation and honor; even the dark shadows of a felon's cell and the night of a drunkard's grave may appear in the saddening visions of that fond father's soul; yet, convinced by experience of the impossibility of bringing about that son's reform, he foresees the dread developments of the future, and he finds but sorrow and anguish in his knowledge. Can it be said that the father's foreknowledge is a cause of the son's sinful life? The son, perchance, has reached his maturity; he is the master of his own destiny; a free agent unto himself. The father is powerless to control by force or to direct by arbitrary command; and, while he would gladly make any effort or sacrifice to save his son from the fate impending, he fears for what seems to be an awful certainty. But surely that thoughtful, prayerful, loving parent does not contribute to the son's waywardness because of his knowledge. To reason otherwise would be to say that a neglectful father, who takes not the trouble to study the nature and character of his son, who shuts his eyes to sinful tendencies, and rests in careless indifference as to the probable future, will by his very heartlessness be benefitting his child, because his lack of forethought cannot operate as a contributory cause to dereliction.
Our Heavenly Father has a full knowledge of the nature and dispositions of each of His children, a knowledge gained by long observation and experience in the past eternity of our primeval childhood; a knowledge compared with which that gained by earthly parents through mortal experience with their children is infinitesimally small. By reason of that surpassing knowledge, God reads the future of child and children, of men individually and of men collectively as communities and nations; He knows what each will do under given conditions, and sees the end from the beginning. His foreknowledge is based on intelligence and reason; He foresees the future as a state which naturally and surely will be; not as one which must be because He has arbitrarily willed that it shall be.
But, it may be argued that in the illustrative instance given above—that of the earthly parent and the wayward son,—the father had not the power to change the sad course of sin whereby his son is hastening to ignominy and destruction; while the omnipotent Father can save if He will. In reply this is to be said: The Father of souls has endowed His children with the divine birth-right of free agency; He does not and will not control them by arbitrary force; He impels no man toward sin; He compels none to righteousness. Unto man has been given freedom to act for himself; and, associated with this independence, is the fact of strict responsibility and the assurance of individual accountability. In the judgment with which we shall be judged, all the conditions and circumstances of our lives shall be considered. The inborn tendencies due to heredity, the effect of environment whether conducive to good or evil, the wholesome teachings of youth, or the absence of good instruction—these and all other contributory elements must be taken into account in the rendering of a just verdict as to the soul's guilt or innocence. Nevertheless, the divine wisdom makes plain what will be the result with given conditions operating on known natures and dispositions of men; while every individual is free to choose good or evil within the limits of the many conditions existing and operative.
Tuesday, November 09, 2004
SMUD's Illegal Affirmative Action Program
And in another case . . .
Nick, writing for the majority, found that SMUD's affirmative action program giving preferences to minority contractors violates the California constitution--under Proposition 109. SMUD is now, as seen in this Sacramento Bee article, using our money (the ratepayers') to appeal to the Supreme Court.
In case the link is no longer available, here is the text of the Bee article:
SMUD forges ahead in minority-bid appeal
By Carrie Peyton Dahlberg -- Bee Staff WriterPublished 2:15 am PDT Thursday, October 21, 2004In a move that could clarify California's ban on government affirmative-action programs, Sacramento's electric utility will ask the state Supreme Court to save a minority contracting program.
Sacramento Municipal Utility District directors voted 6-1 Tuesday to ask the state's highest court to overturn an appellate court ruling that ordered SMUD to end special breaks for some minority contractors.
At stake is a longtime SMUD practice of studying its own contracting procedures, pinpointing areas where minority-and women-owned firms are underrepresented, and then providing a financial edge in those areas.
Contractors in categories judged to be affected by past discrimination have their bids ranked as if they were 5 percent lower than the actual bid amount.
SMUD has argued that its program falls under a key exemption to Proposition 209, a 1996 voter initiative that outlawed most government preferences for minorities.
The initiative carved out an exception for programs required to maintain eligibility for federal funding. That exemption applies, SMUD contends, because its own past discrimination was well documented, and so it was federally required to correct it.
Both a Sacramento Superior Court judge and the state's 3rd Appellate District disagreed, although the three-judge appellate panel rejected SMUD's arguments on a 2-1 vote.
If the Supreme Court agrees to hear SMUD's appeal, "it could have a wide impact," said Brian Landsberg, a professor specializing in constitutional law at the University of the Pacific McGeorge School of Law in Sacramento.
"A statewide ruling would be of great significance," he said Wednesday.
Of the many challenges Proposition 209 has faced, the federal exemption had "the most potential to gut the purpose of 209 if it was interpreted broadly," attorney Sharon Browne said after last month's appellate ruling.
Browne represents the Pacific Legal Foundation, which sued SMUD over its contracting practices in 2000 on behalf of a Loomis contractor. The foundation will oppose SMUD's petition for a high court hearing, she said, arguing that the appellate court reached "a straightforward, well-reasoned decision" that left no issues to be resolved.
"SMUD has been told 'no' twice - what part of 'no' do they not understand?" Browne asked Wednesday.
"This is going to impact the ratepayers because they're the ones paying for the litigation."
SMUD has spent about $380,000 so far defending its program; going on to the state Supreme Court will add $35,000 to $75,000 to that, said SMUD general counsel Arlen Orchard.
The cost issue weighed heavily on SMUD directors when they debated an appeal in a special closed session, board President Peter Keat said.
Ultimately, he said, the appeal will demonstrate "our commitment to diversity" and to show that "being fair and just is how we go about our business."
The issue, Keat said, is "not just about SMUD. ... We represent not just our own ability to use these tools to address past discrimination and injustice, but other people's ability to do that as well."
SMUD uses the incentives as a way of "assuring diversity and fairness," and the program deserves to be defended, Director Genevieve Shiroma said.
Howard Posner, the lone director who voted against the appeal, has repeatedly tried to persuade fellow board members to abandon the program, arguing that it violated the law.
"I don't think we're going to prevail," he said. "I couldn't justify spending ratepayers' funds in what appears to me to be a losing battle."
Even some directors who ultimately supported the appeal said their decision was a tough one.
Director Larry Carr said he didn't believe the benefit of the program would be worth the cost of more litigation. But when it became clear a majority of four directors supported the appeal, Carr said, he decided to back it and tried to persuade other directors the board's vote should be unanimous.
That would send a message, he said, "that everyone on the board is solidly committed to being inclusive in our contracting."
Director Bill Slaton said he, too, struggled but concluded, "It's important to speak with one voice on this issue."
The high court has about two months to decide whether to hear SMUD's appeal, and if it does, the decision would probably come within a year.
Nick, writing for the majority, found that SMUD's affirmative action program giving preferences to minority contractors violates the California constitution--under Proposition 109. SMUD is now, as seen in this Sacramento Bee article, using our money (the ratepayers') to appeal to the Supreme Court.
In case the link is no longer available, here is the text of the Bee article:
SMUD forges ahead in minority-bid appeal
By Carrie Peyton Dahlberg -- Bee Staff WriterPublished 2:15 am PDT Thursday, October 21, 2004In a move that could clarify California's ban on government affirmative-action programs, Sacramento's electric utility will ask the state Supreme Court to save a minority contracting program.
Sacramento Municipal Utility District directors voted 6-1 Tuesday to ask the state's highest court to overturn an appellate court ruling that ordered SMUD to end special breaks for some minority contractors.
At stake is a longtime SMUD practice of studying its own contracting procedures, pinpointing areas where minority-and women-owned firms are underrepresented, and then providing a financial edge in those areas.
Contractors in categories judged to be affected by past discrimination have their bids ranked as if they were 5 percent lower than the actual bid amount.
SMUD has argued that its program falls under a key exemption to Proposition 209, a 1996 voter initiative that outlawed most government preferences for minorities.
The initiative carved out an exception for programs required to maintain eligibility for federal funding. That exemption applies, SMUD contends, because its own past discrimination was well documented, and so it was federally required to correct it.
Both a Sacramento Superior Court judge and the state's 3rd Appellate District disagreed, although the three-judge appellate panel rejected SMUD's arguments on a 2-1 vote.
If the Supreme Court agrees to hear SMUD's appeal, "it could have a wide impact," said Brian Landsberg, a professor specializing in constitutional law at the University of the Pacific McGeorge School of Law in Sacramento.
"A statewide ruling would be of great significance," he said Wednesday.
Of the many challenges Proposition 209 has faced, the federal exemption had "the most potential to gut the purpose of 209 if it was interpreted broadly," attorney Sharon Browne said after last month's appellate ruling.
Browne represents the Pacific Legal Foundation, which sued SMUD over its contracting practices in 2000 on behalf of a Loomis contractor. The foundation will oppose SMUD's petition for a high court hearing, she said, arguing that the appellate court reached "a straightforward, well-reasoned decision" that left no issues to be resolved.
"SMUD has been told 'no' twice - what part of 'no' do they not understand?" Browne asked Wednesday.
"This is going to impact the ratepayers because they're the ones paying for the litigation."
SMUD has spent about $380,000 so far defending its program; going on to the state Supreme Court will add $35,000 to $75,000 to that, said SMUD general counsel Arlen Orchard.
The cost issue weighed heavily on SMUD directors when they debated an appeal in a special closed session, board President Peter Keat said.
Ultimately, he said, the appeal will demonstrate "our commitment to diversity" and to show that "being fair and just is how we go about our business."
The issue, Keat said, is "not just about SMUD. ... We represent not just our own ability to use these tools to address past discrimination and injustice, but other people's ability to do that as well."
SMUD uses the incentives as a way of "assuring diversity and fairness," and the program deserves to be defended, Director Genevieve Shiroma said.
Howard Posner, the lone director who voted against the appeal, has repeatedly tried to persuade fellow board members to abandon the program, arguing that it violated the law.
"I don't think we're going to prevail," he said. "I couldn't justify spending ratepayers' funds in what appears to me to be a losing battle."
Even some directors who ultimately supported the appeal said their decision was a tough one.
Director Larry Carr said he didn't believe the benefit of the program would be worth the cost of more litigation. But when it became clear a majority of four directors supported the appeal, Carr said, he decided to back it and tried to persuade other directors the board's vote should be unanimous.
That would send a message, he said, "that everyone on the board is solidly committed to being inclusive in our contracting."
Director Bill Slaton said he, too, struggled but concluded, "It's important to speak with one voice on this issue."
The high court has about two months to decide whether to hear SMUD's appeal, and if it does, the decision would probably come within a year.
Monday, November 08, 2004
Chastising by Opinion
A few months ago, the court severely chastised a lower court judge for improperly urging a deadlocked jury to arrive at a verdict. This Sacramento Bee article and this article from the following day explain the chastisement and the reaction of various attorneys and legal commentators.
The stories contain a significant inaccuracy. The Attorney General did not represent the judge on appeal. The judge isn't even a party to the appeal. The Attorney General represents the People of the State of California.
Here is the text of the Bee articles, in case they are no longer available by the links:
Court gives judge stinging rebuke
The appellate panel publicly upbraids a capital jurist for putting pressure on a deadlocked jury.
By Ramon Coronado -- Bee Staff WriterPublished 2:15 am PST Friday, November 5, 2004An appeals court has issued a stinging rebuke to a Sacramento Superior Court judge for pressuring a deadlocked jury to return a verdict, an extraordinary ruling that has shocked judges, lawyers and law professors in its condemnation.
Judge Brian R. Van Camp, who is scheduled to begin retrying the case today, was castigated by the 3rd District Court of Appeal for not knowing basic rules of law for instructing a jury that have been on the books for more than 25 years.
The 12-page decision, which a law professor said was like being taken to the woodshed, describes Van Camp's handling of the case as a "miscarriage of justice."
The Sacramento-based appeals court overturned the conviction in the case in August, saying that despite a "plethora of aids" available to trial judges, Van Camp "failed even to undertake the modest endeavor of consulting the most obvious sources. The life of a judge is not meant to be one of ease."
Quoting Abraham Lincoln, the three-justice panel wrote that keeping up on the law is "simple, though laborious, and tedious. It is only to get the books, and read, and study them carefully."
The appeals court also took an extra step to "publish" the opinion, a precedent-setting act reserved for rare legal developments that include clarifying a gray area of the law. Published opinions are used to make arguments in legal briefs statewide. They are reprinted in law books and on the Internet.
Joshua Dressler, who was a criminal law expert at McGeorge School of Law for eight years, said that in his 27 years as a law professor he has rarely seen such a personal attack in a written opinion.
"This is not common to be so severe in overturning a trial court judge. This is taking him to the woodshed," said Dressler, now at Moritz College of Law at Ohio State University.
"Publicly shaming the judge is a way to not only rebuke one judge but to send a message to all other judges," Dressler said.
Many in the Sacramento legal community came forward to defend Van Camp.
Harlan Antler, a Sacramento defense lawyer who has known Van Camp for 20 years, said the 64-year-old judge has been unfairly maligned. Other judges have made similar mistakes and they haven't received such scathing criticism, Antler said.
"Van Camp made a mistake and he should have been reversed, but not with such nastiness," Antler said.
William Ross Warne, who worked in the same law firm with Van Camp before he became a judge, said he does not understand the appeals court ruling.
"Why did the opinion go beyond correcting a mistake? That's the $64,000 question," Warne said.
The justices of the appellate court, like Superior Court judges, are bound by canons of judicial ethics that prohibit them from commenting about their decisions and pending cases.
Van Camp, who has been on the bench for more than seven years, said that out of more than 500 trials and 40 appeals, he has been reversed only three times.
"Like all judges on our court, my goal is zero errors," he said.
"Naturally, I regret any error and have taken aggressive steps to assure no repetition," Van Camp said.
Santa Clara University School of Law professor Gerald Uelmen, who has been studying California appellate court decisions for 16 years, said 90 percent of trial court convictions are affirmed on appeal. Yet, of those that are reversed, disparagement is unheard of, he said.
Out of the more than 2,500 opinions issued annually by the 3rd District, no more than 5 percent are considered legally noteworthy enough to be "published," he said.
"Judges are quite reluctant to openly criticize other judges," Uelmen said. "Even when reversing a judge, an appeals court frequently withholds comment on a judge's competency."
Van Camp, appointed in 1997 by Gov. Pete Wilson, was unopposed in the March election for a six-year term. He began his career at age 29 in state and local government and was considered one of the brightest stars in the state Republican Party. He ran unsuccessfully for secretary of state and mayor of Sacramento and was chairman of the Capitol Area Development Authority.
As a judge, he has been praised for his work on several statewide judicial committees, including one that taught other judges the intricacies of corporate law.
Though he infrequently handles criminal cases, last year Van Camp was assigned the felony criminal case of Deontray Lamont Hinton. The Sacramentan, 27, was charged with unlawfully firing a gun into the air. There was conflicting testimony over who had the gun and who fired it.
On Feb. 20, 2003, the day after the jury began deliberations, jurors told the judge, "We seem unable to reach agreement," according to the opinion of the 3rd District Court of Appeal.
With the intention of breaking the deadlock, Van Camp instructed the jury on how to proceed. In a long soliloquy, he told jurors voting in the minority they should "respect the majority's opinion" and that the case would likely be retried if deadlocked.
He said a "great deal of time and preparation" went into the case and that "heat, light in the building" and other resources had been invested.
The 3rd District justices said such words commonly have been described in appellate decisions as "dynamite" instructions, which are aimed at blasting jurors out of a stalemate.
The jurors were sent home for five days and on their next day of deliberation convicted Hinton. He was later sentenced to three years and eight months in prison.
The 3rd District justices said Van Camp's choice of words violated state and federal court rules that have been "established law" for more than 25 years.
In their opinion, Justices Arthur G. Scotland, George W. Nicholson and Harry E. Hull Jr. said Van Camp's language acted to "inject extraneous and improper considerations into the jury's debates." Scotland, Nicholson and Hull were appointed to the appellate court by Republican governors.
Deputy Attorney General Virna L. Depaul, who represented Van Camp in the appeal, told the justices that Van Camp's words were taken out of context.
The judge also admonished jurors to "not surrender their own convictions of the truth" and that the "central focus" of his comments was not to "save resources or avoid a retrial," Depaul wrote.
"Taken in their totality," the judge's comments "did not coerce the jury," Depaul said.
Rebuked judge transfers case
By Ramon Coronado -- Bee Staff WriterPublished 2:15 am PST Saturday, November 6, 2004Nearly three months after Deontray Lamont Hinton had his criminal conviction overturned because of a judge's error, a new trial was delayed Friday after his attorney asked for another Sacramento Superior Court judge.
"Your honor, I just did two years on this case," a frustrated Hinton told the second judge he stood before Friday before his case was postponed to Tuesday.
Hinton, 27, was convicted last year of unlawfully firing a gun into the air to disperse a crowd in front his Sacramento home. He was sentenced to three years and eight months in prison.
But the 3rd District Court of Appeal overturned the conviction Aug. 12 and castigated Sacramento Superior Court Judge Brian R. Van Camp for pressuring Hinton's deadlocked jury into reaching a verdict. The three-justice panel criticized the judge, who has been on the bench for more than seven years, for not knowing or making an effort to learn basic rules of handling deadlocked juries.
The case was to be heard by Van Camp, but Hinton's lawyer, Kresta N. Daly, asked the court for another judge.
Outside of court, Daly said she didn't feel she could get a fair trial before Van Camp.
In less than a minute, Van Camp transferred the case to another judge. But he was not in Friday afternoon. Daly and Deputy District Attorney Richard Miller then walked the courthouse halls looking for a judge who was working.
Judge Gary E. Ransom, who agreed to hear the case, turned down Hinton's plea for release pending a retrial, saying the issue will be explored next week.
"The case will either be resolved or it will be set for trial," Miller said. The prosecutor said it was not unusual for Hinton to be sitting in prison three months after his conviction was overturned, given the administrative and legal requirements, including the right for Van Camp to appeal the reversal to the California Supreme Court.
Hallye Jordan, a spokeswoman for the state attorney general's office, which represented Van Camp, said this week her office was not seeking an appeal to the state Supreme Court.
The stories contain a significant inaccuracy. The Attorney General did not represent the judge on appeal. The judge isn't even a party to the appeal. The Attorney General represents the People of the State of California.
Here is the text of the Bee articles, in case they are no longer available by the links:
Court gives judge stinging rebuke
The appellate panel publicly upbraids a capital jurist for putting pressure on a deadlocked jury.
By Ramon Coronado -- Bee Staff WriterPublished 2:15 am PST Friday, November 5, 2004An appeals court has issued a stinging rebuke to a Sacramento Superior Court judge for pressuring a deadlocked jury to return a verdict, an extraordinary ruling that has shocked judges, lawyers and law professors in its condemnation.
Judge Brian R. Van Camp, who is scheduled to begin retrying the case today, was castigated by the 3rd District Court of Appeal for not knowing basic rules of law for instructing a jury that have been on the books for more than 25 years.
The 12-page decision, which a law professor said was like being taken to the woodshed, describes Van Camp's handling of the case as a "miscarriage of justice."
The Sacramento-based appeals court overturned the conviction in the case in August, saying that despite a "plethora of aids" available to trial judges, Van Camp "failed even to undertake the modest endeavor of consulting the most obvious sources. The life of a judge is not meant to be one of ease."
Quoting Abraham Lincoln, the three-justice panel wrote that keeping up on the law is "simple, though laborious, and tedious. It is only to get the books, and read, and study them carefully."
The appeals court also took an extra step to "publish" the opinion, a precedent-setting act reserved for rare legal developments that include clarifying a gray area of the law. Published opinions are used to make arguments in legal briefs statewide. They are reprinted in law books and on the Internet.
Joshua Dressler, who was a criminal law expert at McGeorge School of Law for eight years, said that in his 27 years as a law professor he has rarely seen such a personal attack in a written opinion.
"This is not common to be so severe in overturning a trial court judge. This is taking him to the woodshed," said Dressler, now at Moritz College of Law at Ohio State University.
"Publicly shaming the judge is a way to not only rebuke one judge but to send a message to all other judges," Dressler said.
Many in the Sacramento legal community came forward to defend Van Camp.
Harlan Antler, a Sacramento defense lawyer who has known Van Camp for 20 years, said the 64-year-old judge has been unfairly maligned. Other judges have made similar mistakes and they haven't received such scathing criticism, Antler said.
"Van Camp made a mistake and he should have been reversed, but not with such nastiness," Antler said.
William Ross Warne, who worked in the same law firm with Van Camp before he became a judge, said he does not understand the appeals court ruling.
"Why did the opinion go beyond correcting a mistake? That's the $64,000 question," Warne said.
The justices of the appellate court, like Superior Court judges, are bound by canons of judicial ethics that prohibit them from commenting about their decisions and pending cases.
Van Camp, who has been on the bench for more than seven years, said that out of more than 500 trials and 40 appeals, he has been reversed only three times.
"Like all judges on our court, my goal is zero errors," he said.
"Naturally, I regret any error and have taken aggressive steps to assure no repetition," Van Camp said.
Santa Clara University School of Law professor Gerald Uelmen, who has been studying California appellate court decisions for 16 years, said 90 percent of trial court convictions are affirmed on appeal. Yet, of those that are reversed, disparagement is unheard of, he said.
Out of the more than 2,500 opinions issued annually by the 3rd District, no more than 5 percent are considered legally noteworthy enough to be "published," he said.
"Judges are quite reluctant to openly criticize other judges," Uelmen said. "Even when reversing a judge, an appeals court frequently withholds comment on a judge's competency."
Van Camp, appointed in 1997 by Gov. Pete Wilson, was unopposed in the March election for a six-year term. He began his career at age 29 in state and local government and was considered one of the brightest stars in the state Republican Party. He ran unsuccessfully for secretary of state and mayor of Sacramento and was chairman of the Capitol Area Development Authority.
As a judge, he has been praised for his work on several statewide judicial committees, including one that taught other judges the intricacies of corporate law.
Though he infrequently handles criminal cases, last year Van Camp was assigned the felony criminal case of Deontray Lamont Hinton. The Sacramentan, 27, was charged with unlawfully firing a gun into the air. There was conflicting testimony over who had the gun and who fired it.
On Feb. 20, 2003, the day after the jury began deliberations, jurors told the judge, "We seem unable to reach agreement," according to the opinion of the 3rd District Court of Appeal.
With the intention of breaking the deadlock, Van Camp instructed the jury on how to proceed. In a long soliloquy, he told jurors voting in the minority they should "respect the majority's opinion" and that the case would likely be retried if deadlocked.
He said a "great deal of time and preparation" went into the case and that "heat, light in the building" and other resources had been invested.
The 3rd District justices said such words commonly have been described in appellate decisions as "dynamite" instructions, which are aimed at blasting jurors out of a stalemate.
The jurors were sent home for five days and on their next day of deliberation convicted Hinton. He was later sentenced to three years and eight months in prison.
The 3rd District justices said Van Camp's choice of words violated state and federal court rules that have been "established law" for more than 25 years.
In their opinion, Justices Arthur G. Scotland, George W. Nicholson and Harry E. Hull Jr. said Van Camp's language acted to "inject extraneous and improper considerations into the jury's debates." Scotland, Nicholson and Hull were appointed to the appellate court by Republican governors.
Deputy Attorney General Virna L. Depaul, who represented Van Camp in the appeal, told the justices that Van Camp's words were taken out of context.
The judge also admonished jurors to "not surrender their own convictions of the truth" and that the "central focus" of his comments was not to "save resources or avoid a retrial," Depaul wrote.
"Taken in their totality," the judge's comments "did not coerce the jury," Depaul said.
Rebuked judge transfers case
By Ramon Coronado -- Bee Staff WriterPublished 2:15 am PST Saturday, November 6, 2004Nearly three months after Deontray Lamont Hinton had his criminal conviction overturned because of a judge's error, a new trial was delayed Friday after his attorney asked for another Sacramento Superior Court judge.
"Your honor, I just did two years on this case," a frustrated Hinton told the second judge he stood before Friday before his case was postponed to Tuesday.
Hinton, 27, was convicted last year of unlawfully firing a gun into the air to disperse a crowd in front his Sacramento home. He was sentenced to three years and eight months in prison.
But the 3rd District Court of Appeal overturned the conviction Aug. 12 and castigated Sacramento Superior Court Judge Brian R. Van Camp for pressuring Hinton's deadlocked jury into reaching a verdict. The three-justice panel criticized the judge, who has been on the bench for more than seven years, for not knowing or making an effort to learn basic rules of handling deadlocked juries.
The case was to be heard by Van Camp, but Hinton's lawyer, Kresta N. Daly, asked the court for another judge.
Outside of court, Daly said she didn't feel she could get a fair trial before Van Camp.
In less than a minute, Van Camp transferred the case to another judge. But he was not in Friday afternoon. Daly and Deputy District Attorney Richard Miller then walked the courthouse halls looking for a judge who was working.
Judge Gary E. Ransom, who agreed to hear the case, turned down Hinton's plea for release pending a retrial, saying the issue will be explored next week.
"The case will either be resolved or it will be set for trial," Miller said. The prosecutor said it was not unusual for Hinton to be sitting in prison three months after his conviction was overturned, given the administrative and legal requirements, including the right for Van Camp to appeal the reversal to the California Supreme Court.
Hallye Jordan, a spokeswoman for the state attorney general's office, which represented Van Camp, said this week her office was not seeking an appeal to the state Supreme Court.
No More General Apostasy
Of late, I have pondered the latter days and the evil that infects the world. I see that all of the ingredients exist for another general apostasy, such as the one that occurred after the death of the apostles in the meridian of time. We have widespread corruption. The world seems to get worse and worse. But we have the assurance that this kingdom--the Lord's Church--will roll forth and become larger and more influential, until it will fill the whole earth, presumably in the Millenium.
This raises the question in my mind concerning how we will be able to sustain righteousness. I am sure it has to do with the maintenance of prophets and apostles and our obedience to their instructions. I suspect it also includes the preservation of valiant saints for these latter days.
To develop a better understanding of these things, I am beginning with The Great Apostasy, by Elder James E. Talmage. From there, . . . I am not sure yet.
This raises the question in my mind concerning how we will be able to sustain righteousness. I am sure it has to do with the maintenance of prophets and apostles and our obedience to their instructions. I suspect it also includes the preservation of valiant saints for these latter days.
To develop a better understanding of these things, I am beginning with The Great Apostasy, by Elder James E. Talmage. From there, . . . I am not sure yet.
Welcome to the Blogosphere
Here it is. The place to visit to see and read what I am thinking (and that may not be much). Hope your stay is enjoyable. Join in if you wish to comment.
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