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And McJustice for All

How traffic court is still the best place in the land to watch the system run over your rights By J. Douglas Allen-Taylor "When did you begin?" [said the King]. "Fourteenth of March, I think it was," [the Hatter] said. "Fifteenth," said the March Hare. "Sixteenth," added the Dormouse. "Write that down," the King said to the jury, and the jury eagerly wrote down all three dates on their slates, and then added them up, and reduced the answer to shillings and pence. "Take off your hat," the King said to the Hatter. "It isn't mine," said the Hatter. "Stolen!" the King exclaimed, turning to the jury, who instantly made a memorandum of the fact. "I keep them to sell," the Hatter added as an explanation. "I've none of my own. I'm a hatter." Here the Queen put on her spectacles, and began staring hard at the Hatter, who turned pale and fidgeted. "Give your evidence," said the King, "and don't be nervous, or I'll have you executed on the spot." The trial scene from Lewis Carroll's 'Alice In Wonderland' ON A ROUTINE afternoon in traffic court, in the Municipal Court facility across the Guadalupe River, Commissioner Gregory Saldivar dispenses justice at a dizzying pace. In the first session of Department 46, Saldivar has 59 cases to arraign in one hour. Defendants must be told their rights and then be allowed to plead guilty or not, traffic school assigned for those who warrant it, sentences given, questions answered, bench warrants issued for those who don't show. To compound the problem, a significant percentage of the defendants speak only Vietnamese and by law must participate through a county-sponsored interpreter. Their numbers appear out of proportion only until it is revealed that this is an example of traffic court's formidable organizational flow: it has been prearranged that all of the Vietnamese speakers will be arraigned at one time. In the second afternoon arraignment session in Department 47 next door, a Spanish interpreter will provide services for a similar percentage of Spanish-speaking drivers. Gregory Saldivar has been a traffic commissioner since 1990, and he knows the drill. Between 2:15 and 2:30 he disposes of 15 cases, 11 of which require that the proceedings be translated. He spends most of his time trying to save one woman a significant amount of money. She has pleaded guilty to driving without insurance and still hasn't purchased any. Saldivar explains that he must impose a $1,000 fine, but he can drop it down to $100 if she gets insurance and brings back proof to the court. "If you plan on driving again, you would come out cheaper purchasing insurance and paying the $100 fine," Saldivar says. "Are you going to purchase insurance?" Although she is one of the few English-speaking defendants in this session, the woman clearly does not understand the options, and Saldivar must ask her twice more before she says yes. It is impossible for an observer to say why this particular woman has gotten singled out for special explanation. The rest of the defendants pop up and down like the little tin targets at the air-gun arcade on the Santa Cruz Beach Boardwalk. Within a brief time, the formerly full courtroom has been emptied, the doors shut and locked and blinders hung over the windows, and employees are chatting with their co-workers, catching up with paperwork or shuffling out back to take a smoke or stretch their legs. The second afternoon session in Department 46 has seven scheduled trials, and Saldivar handles them just as quickly. One bench warrant is issued for an absent defendant, three cases are dismissed for lack of an officer to testify and one is continued. He has cleared his calendar in what would seem to be record time. Ten minutes after the second afternoon session opens, the bailiff is locking the doors shut. James Heath dominates the courtroom next door. Heath has been a commissioner for 13 years, and he looks a little bored. He hides a yawn behind a folder of papers. He is a big bear of a man, balding, with meaty face and arms. His voice booms around the courtroom. "Will someone tell this young man what a good deal I just gave him?" he asks. The bailiff and the clerk stare straight ahead, and no one else is quite sure if they should answer or look away so he won't catch their eye. Heath glances around the courtroom and finds an unlucky offender. "Are you reading that newspaper?" he asks. "We don't usually allow reading in here." The newspaper quickly rustles closed. The courtroom is so cowed into obedience that the bailiff does not even have to talk to get action. He touches his finger to his forehead and in the back of the courtroom, a hat quietly slides off someone's head. Now Heath is back to the business at hand, wiping the day's calendar clean, humming along like a perfect computer operating system. He rattles off defendants' names, the charges against them and the options available and then asks, "What's your pleasure?" all before the defendants can make it to the front of the courtroom. At the announcement of a guilty plea, Heath seems to lose all interest in the defendant. He scans the papers in front of him and begins reciting a series of numbers, almost as if he were doing figures in his head. Then he drops the papers through a little slot onto the desk of the clerk, which is attached to the judge's bench. Before the papers have hit the clerk's desk, Heath is busy calling out another name and another charge. Often the last defendant stands at the front for a moment before being bumped out of the way by the new defendant, and only then realizes that sentence has been passed and the entire procedure is over. Heath knows exactly what he is doing. He stops one sentenced defendant on her way to pick up her papers and asks, in a voice meant for the entire courtroom audience again, "Why didn't you ask me what these numbers are for? Aren't you curious?" It's a little bit like David Letterman toying with a guest. The woman appears befuddled for a moment, but then recovers and plays Abbott to Heath's Costello. "OK," she says. "What were those numbers for?" Heath calls out each number again, slowly and audibly now, explaining that they are all dollar amounts of legally mandated penalty assessments added on to the actual fine: $20 for the fine itself--$20 added under Penal Code Section 1464, $14 under Government Code Section 76000. A stray dollar gets added, for something or other. Meanwhile, the clerk below is busily reducing it all to shillings and pence. "A lot of people are afraid to ask about them," Heath tells the defendant. "But since you asked, I'm going to suspend some of your fine." And he does. Explanations notwithstanding, Commissioner Heath is just as efficient as Commissioner Saldivar next door. Fifteen minutes before the scheduled 4:30 closeout, Heath has dealt with 67 cases in one manner or another, and not a defendant is left in the courtroom. In 2 1/2 hours this October afternoon, two San Jose traffic commissioners have disposed of 126 arraignments and 17 trials and gotten out early from each session. All in all, it's both breathtaking and a little bit frightening to sit through a session of San Jose Traffic Court and watch the boards get cleared and the chess pieces fall into place. But is it justice? At this moment the King, who had been for some time busily writing in his notebook, called out, "Silence!" and read out from his book, "Rule Forty-two. All persons more than a mile high to leave the court." Everybody looked at Alice.... "Well, I shan't go, at any rate," said Alice; "besides, that's not a regular rule; you invented it just now." "It's the oldest rule in the book," said the King. "Then it ought to be Number One," said Alice. ATTORNEY DAVID BROWN is considered something of an expert on traffic court; he has made a living observing, participating in and writing about the subject. Brown believes that most traffic court judges are biased toward police officers and against defendants, that the traffic court system is a preliminary step in moving our criminal justice system toward something like George Orwell's "Big Brother" totalitarianism, but that the danger is tolerated by government officials because traffic courts generate so much money for the state. And most damaging, Brown charges that the California Legislature is inventing new rules involving traffic court that are negating what is supposed to be Rule Number One: the Constitution. Brown is no wild-eye; he has the qualifications to make an informed protest. He is an attorney operating a Monterey County law office, is a 1981 graduate of the University of Santa Clara Law School and represents clients "on a regular basis" in Santa Clara County courts. He is also the author of Fight Your Ticket ... and Win!, a book published by self-help law specialists NOLO Press of Berkeley. Brown says that justice in traffic courts is being sacrificed in the name of efficiency. "Starting in 1968, California politicians began a quiet campaign to gradually eliminate all procedural rights that interfered with the revenue-raising aspects of the traffic-enforcement system," Brown writes in his book. "The Legislature did this by creating a new category of crime known as the 'infraction.' The 'infraction' was a new type of category for which no jury trial was allowed, even if demanded by the accused. At first, only parking violations were defined as infractions. [Now] all but a few of the most serious traffic offenses (such as drunk or reckless driving and drag racing) [are] classified as infractions." In other words, according to Brown, California has done away with such constitutional guarantees as the Sixth Amendment right to a trial by jury and the Fifth Amendment right to be free from self-incrimination by the simple use of semantics. In a telephone interview from his Monterey law office, Brown says that the Legislature and Appellate Court decisions have led to a stripped-bare system of justice in traffic court. California Appeals Courts have held that prosecutors are not necessary in traffic court, and indigent defendants are not entitled to counsel paid for by the state. As a result, most traffic court trials are conducted in the peculiar condition of having no lawyers present at all. Citizens who think that the absence of lawyers in a court might be a great idea should beware. The same three-judge panel that ruled in People v. Daggett in 1988 that prosecutors need not be present in California traffic courts also ruled that it was permissible for judges to assist in presenting the government's case. I observed several instances of commissioners in San Jose Traffic Court doing just that: helping the police officers along with softball questions rather than probing hard to get at the truth. It is hardly likely that a judge, in such a situation, can then turn around and be perfectly fair in making a decision on the case. And in fact, one California appellate judge, in dissent in the Daggett case, wrote that this situation leads to "the inescapable conclusion that the court is, or at least appears to be, both the prosecutor and the court, rather than being impartial." There was a table set out under a tree in front of the house, and the March Hare and the Hatter were having tea at it; a Dormouse was sitting between them, fast asleep ... "No room! No room!" they cried out when they saw Alice coming.... "I want a clean cup," interrupted the Hatter; "let's all move one place on." He moved on as he spoke, and the Dormouse followed him; the March Hare moved into the Dormouse's place, and Alice rather unwillingly took the place of the March Hare. The Hatter was the only one who got any advantage from the change; and Alice was a good deal worse off than before, as the March Hare had just upset the milk jug into his plate. IN TRAFFIC COURT, changing places is part of the game. Judges must help out as prosecutors. They share that duty with police officers, who must also double as eyewitnesses. And defendants suddenly find themselves in the uncomfortable position of acting as their own lawyer, and finding that they are often the main prosecution witness. The situation is set up from the very beginning of the process, long before the matter ever gets to traffic court. A driver goes through an intersection and within a block is pulled over by a police officer. The officer takes the driver's license, registration and insurance cards and then asks the driver, "Do you know why I stopped you?" It seems innocent enough, but when a police officer asks this question after stopping a motorist, he is not necessarily merely investigating a crime. He is a poker player with a tremendous hole card: he can either write the motorist a ticket or let him go. Many times--probably most times--the police officer has already made his mind up about issuing the ticket before he walks up to the car. But the driver almost always answers his questions in the hope that the officer will decide not to write the ticket. The driver is not obligated to speak, of course, but the officer doesn't usually tell the driver that. And suppose he doesn't? Most drivers imagine that the officer would take this as a sign of belligerence and non-cooperation and come down harder on the driver. So almost always, the driver will volunteer an answer. Sometimes cooperating works, and the driver gets off with just a warning. All too often, the officer's question is just a ruse. A traffic stop by a police officer is legally defined as an arrest. The driver is suspected of a crime, and he is being detained by the officer. In any other type of arrest, the officer is legally obligated to advise the defendant that he has the right to remain silent, and if he does not remain silent, anything he says can be used against him in a court of law. It is the famous Miranda warning which we hear so often on television cop shows, but never at a traffic stop. Law-and-order zealots often cry that the Miranda warning is a protection for criminals. It is not. It is to protect presumed innocent citizens from being intimidated or coerced by police. Traffic violations, being defined by the state Legislature as "infractions," have no such protections. In San Jose Traffic Court last October, an officer testifies that when he asked the driver why he thought he was being stopped, the driver replied, "Because I drove through that stop sign." There was no other witness to the crime but the police officer. When it is the driver's turn to present his case, he testifies that he had not, in fact, driven through the stop sign. At the end of the trial, the commissioner finds the driver guilty. When the driver objects, asking the commissioner on what basis he has made his decision, the commissioner answers, "On the basis of your own words. You told the officer that you had driven through the stop sign." Brown says that the commissioner's ruling and reasons are perfectly legal, but even if they were not, an appeal would be a wasted gesture. In yet another way in which Traffic Court resembles no other court in the land, there is no court reporter taking notes for a transcript. Court reporters are utilized only if the defendant requests one five days in advance of the trial, and then the defendant must pay for it. Without a trial transcript, the Court of Appeals can only review the trial judge's report on what happened at the trial. "For instance, now," [said the White Queen], "there's the King's Messenger. He's in prison now, being punished; and the trial doesn't even begin till next Wednesday; and, of course, the crime comes last of all." "Suppose he never commits the crime?" said Alice. "That would be all the better, wouldn't it?" the Queen said.... Alice felt there was no denying that. "Of course it would be all the better," she said; "but it wouldn't be all the better his being punished." "You're wrong there, at any rate," said the Queen. "Were you ever punished?" ... "Yes, but then I had done the things I was punished for," said Alice. "That makes all the difference." "But if you hadn't done them," the Queen said, "that would have been better still; better, and better, and better!" SAN JOSE Municipal Court Presiding Judge Jamie Jacobs-May considers a question while staring at the questioner with large, unblinking eyes. The eyes of neither predator nor prey, they are eyes that survey the legal landscape around her, probing all possible courses before setting out. Her arguments are all reasoned and pure logic. She is clearly quite comfortable with making tough decisions and judging people's lives. Sitting in Jacobs-May's cramped chambers hidden behind a labyrinth of passageways and file storage areas at the Hall of Justice on Hedding Street, we are discussing what appears at first glance to be a part of traffic court about which commissioners are less than honest with defendants: traffic school. This is a popular punishment for defendants who want to keep points from being added to their driving records; almost 71,000 Santa Clara County residents voluntarily took that option in the last fiscal year. There is a catch, of course. Defendants are routinely told that they must plead guilty in order to exercise this option; once they plead innocent and go to trial, traffic school is no longer available as an alternative to lost points. After studying the law books for a moment, Jacobs-May agrees that, technically, a judge could stop a trial after testimony, warn a defendant that a guilty verdict was about to be rendered, and offer point-saving traffic school as an alternative. "But suppose every defendant opted to go to trial and then, after testimony, asked for traffic school," Jacobs-May says. "The court would be swamped. We couldn't handle the caseload." She clicks off statistics from memory. Numbers of arraignments per session? Between 50 and 75. Amount of time it takes to conduct a trial? Fifteen minutes to half an hour. Loss of officer time while being present at the trial? Impossible to quantify, but probably substantial. But every defendant is not going to opt to go to trial, even with the possibility of a chance to go to traffic school dangled in front of them. More important, Jacobs-May admits that traffic court commissioners do not tell defendant drivers the whole truth about the law in an effort to coerce guilty pleas. For her it's a cost-benefit issue rather than a constitutional rights issue, something you'd expect more from a CEO than a presiding judge. The drivers who lose out are the drivers who probably have the most to gain from traffic school--people who plead innocent and go to trial because they honestly do not believe that they broke a traffic law. Jacobs-May is asked about the charge, so often made throughout the state, that contesting a traffic ticket is less than useless because commissioners are preternaturally biased toward the testimony of police officers. "There's no presumption in traffic court that officers are telling the truth," she replies. "Commissioners are governed by the California Evidence Code on how to weigh the credibility of witnesses. They specifically mandate that an officer's testimony should not be presumed to be more truthful than anyone else's. That's the same as it is in all criminal court." When an officer testifies that he observed a driver going through a red light, and the driver testifies that the light was yellow, and there is no other evidence given, the judge should be mandated by the presumption of innocence to find the defendant not guilty. But following the California Evidence Code as they are required to do, commissioners must decide on the basis of such issues as who has the better motive for lying, who has the better demeanor while testifying and whether any of the witnesses made a previous statement inconsistent with his trial testimony. All of these points almost automatically work against the driver, who stands to lose financially and personally, whereas an officer testifies in court as part of his job. Therefore, in this world of logic, the driver must be found guilty in cases where it is merely the driver's word against the police officer's. So judges within the system can accurately say that presumption of innocence is being maintained, while defendants are routinely found guilty only on an officer's word. This built-in bias in the law itself against traffic court defendants is reflected in conviction rates in Santa Clara County Municipal Court. Last year, defendants in non-jury trials not involving traffic violations were found guilty 75 percent of the time. Defendants who contested their tickets before a commissioner for traffic infractions, however, were found guilty 85 percent of the time. And we are not talking about a minor sideshow here. Of more than 350,000 criminal indictments filed in municipal courts throughout Santa Clara County through June this year, more than two-thirds were for traffic infractions. Traffic misdemeanors such as DUI can be punishable by jail time and fines up to $2,000; infractions can net fines up to $200 and loss of driver's license points. And traffic court judges can perform the ultimate execution: they can take your driver's license altogether. In a county like Santa Clara, which is geographically the largest in the Bay Area, interlaced with almost 1,000 miles of state and federal highways and county roads, where many jobs are practically inaccessible by public transit and where almost one million commuter-driven cars travel every day, losing a driver's license can be akin to losing a lung. For the state, the fines can add up to a substantial amount of income. The Mercury News has reported that in 1995, California's counties were required to send 75 percent of their traffic fine money to Sacramento: more than $80 million. "In that direction," the Cat said, waving its right paw round, "lives a Hatter; and in that direction," waving the other paw, "lives a March Hare. Visit either you like; they're both [crazy]." "But I don't want to go among [crazy] people," Alice remarked. "Oh, you can't help that," said the Cat; "we're all [crazy] here. I'm [crazy]. You're [crazy]." "How do you know I'm [crazy]?" said Alice. "You must be," said the Cat, "or you wouldn't have come here." PROBABLY A BIT too short for the accommodations, San Jose Traffic Commissioner Lisa Steingart is hardly visible behind the bench. Her thick black hair flows down over the top of her black judge's robes, so that what is left for the courtroom to see is almost all face. It is a face that is Eastern-European pale and dominated by dark eyes. Her eyes are never still; they dart from the papers in front of her to the lawbook to the bailiff to the clerk to the defendant to the courtroom audience and back again, restless eyes, moving on to the next subject even while she is finishing up the last. Steingart does not have a judge's commanding voice, not at all. She sounds more like a soccer mom than a Roy Bean, making sure that all of the kids have shinguards and lunches packed and rides to the game. She asks if defendants have brought their insurance papers or licenses into court so that they can get charges dropped or reduced, and when they produce them, she smiles genuinely and says, "Great." Steingart and Commissioner John Triplett are paired off in opposite courtrooms this week. They both dispose of all of their cases on time, with no overrun, they both appear fair and they both appear to follow the law. And that is where all resemblance ends. Appointed in 1974 seven years after he passed the bar, Triplett is the longest-reigning commissioner currently at San Jose Traffic Court. With a Jimmy Stewart drawl, a prairie-lined face and a thatch of thinning red hair reminiscent of a mounted Gen. Sherman, Triplett rides the judge's bench with a languid familiarity, like a cowhand who's done fence-mending duty for half his life and doesn't let the ordinary break in the wire get his dander up. Triplett only seems to get bothered when a tenderfoot reporter-intruder wanders out into the range he's riding. Unlike the main portion of the Santa Clara County court complex across the river, which has its own pressroom, traffic court stands far from public scrutiny. Told that a story is being done on his court, Triplett moans a little drily, "Oh, great." But this is not the way Lisa Steingart says it. Both Triplett and Steingart begin each arraignment session with a mandatory speech. It defines the defendants' rights--what will happen if they plead guilty, what will happen if they plead innocent, what will happen if the case goes to trial. They both tell defendants that this is important information and that they should listen. But most defendants are like disinterested high school kids. They listen, perhaps, but they don't always hear. Triplett believes that the speech is enough legal instruction, and by law he is absolutely right. He is not required to do anything more, and he doesn't. In one arraignment session he sets a court date for a defendant, who wonders if it might not be changed to a more convenient day. "Do you waive time?" Triplett asks him. The man gives a puzzled look. Triplett asks again, pencil poised over the papers, "Do you waive time?" "Umm, yes," the man replies. Triplett sets a new, more convenient court date, and the defendant leaves, seemingly pleased. What Triplett did not explain at that exact moment is that by waiving time, the defendant has agreed to give up his constitutional right to have a speedy trial. If he had not waived time, the charges would have to be dropped if the police officer did not show up in court by the end of that time period. By waiving time, the defendant agreed that the commissioner could continue to reschedule the matter indefinitely. Perhaps the defendant understood the part in Triplett's opening speech where waiving time was discussed. Or perhaps he did not. Steingart does not leave that to chance. Whether it is a trial or an arraignment, she does not move from a matter until she is absolutely sure that the defendant has exercised options based upon a full understanding of the law. On this afternoon, a stout African American woman in red shorts is on trial, charged with turning out of a convenience store parking lot and onto the wrong side of the street. The officer has discovered that he has charged her under the wrong statute and wants to amend the ticket. Steingart spends close to 10 minutes explaining the defendant's options. "You can take some time and read over the statute," Steingart says. The woman glances over the lawbook handed to her by the bailiff, but it is clear that it is like Greek to her. "If you want, I can give you a continuance, and you can come back another time," Steingart offers. The woman shakes her head; she wants to have this all finished today. At this point, Steingart has pretty much exhausted her legal requirements. Beyond this, it's all her own initiative. "I can give you more time to look over the statute again," she tells the still-befuddled defendant. The woman says no, she's ready, so Steingart asks, "OK, are you going to plead guilty or not guilty?" The woman begins to try to explain what happened. When Steingart intervenes, the defendant asks what she should do. Steingart shows no exasperation, no impatience. "I can't tell you that," she says. "It's your decision." Eventually, as the woman continues to equivocate, Steingart enters a guilty plea and conducts the trial. Defendant after defendant, the procedure is repeated over and over throughout Steingart's court sessions. At arraignments, she sometimes sounds like an insurance salesman or a restaurant waiter as she presents the different combinations of fines and points and driving school available. Over and over, she explains people's options and the consequences of each. They cannot leave saying that they were misled by the court. A young woman has pled guilty to driving someone else's car without insurance. Steingart gives the same option commissioner Saldivar offered another defendant the week before: a $1,000 fine bumped down to $100 if insurance is purchased. But the woman hedges at this incredibly reasonable-seeming offer. In a similar situation a few days later, I watched Commissioner Triplett shrug his shoulders and apply the stiffer fine. But Steingart probes and pushes and eventually discovers that the woman does not see how she can purchase auto insurance because she has no auto. "Oh, that's not a problem," Steingart says. "There are insurance companies who can help you there. Do you want to do that?" Of course, the woman does. Another woman cannot see how to handle her multiple offenses. "What do you think is best?" she asks the commissioner. "Well, you have to decide for yourself what is best for you," Steingart replies. "But in my opinion, you should probably go to traffic school for the case that's going to cost you a point on your license." The woman thanks her and takes the commissioner's suggestion. At trial, however, Steingart is no defendants' patsy. Cases seem to be decided upon their own merit. In five trials during one afternoon session, she finds all of the defendants guilty, even though the fairness of one ticket, as opposed to the legality, obviously troubles her. "I'm just here to judge whether you committed the infraction, not to get into anything else," she explains. San Jose resident Milton Comaner has come to traffic court this November morning with all the right ingredients to get himself acquitted on charges that he failed to yield while making a left turn. Comaner is white, neatly dressed and well-spoken. The father of an Ohio judge, himself a writer and former chemical engineering consultant, he is a defense lawyer's dream. If he can't be believed by a judge, who can? Unfortunately for the defendant, it was a San Jose police officer whose motorcycle Comaner failed to yield to. Still, the final outcome remains in doubt as Comaner presents an impressive defense. His story is clear and believable, and he never wavers from it. He stopped at the stop sign and looked both ways. He did not see the motorcycle because the officer roared out at the last minute from behind a parked truck. Comaner presents a chart of the scene that is as well drawn as a schematic. In direct testimony, the motorcycle cop is just as adamant in telling the opposite side of the story. But the officer stumbles over a critical question from Judge Pro Tempore John Hayes, a county attorney sitting in for the regular commissioner. "Did the motorist yield the right of way until the left turn could be made with reasonable safety?" Hayes asks. The officer stammers and isn't sure. "Isn't that an essential element of the violation?" the judge asks. Not essential enough, apparently. With no other evidence against him than the police officer's word, Comaner is found guilty. Outside the courtroom he is clearly upset and already planning an appeal. "That trial was a farce; didn't you see it?" he says. "The judge has a chore: all he wants to do is get out of there as fast as he can. Everybody gets a fine. He doesn't even listen to you. I don't feel the judicial system has the right to play fast and loose with people like that." Trembling and still visibly disturbed, hands shaking as he arranges his court papers in his briefcase, Comaner asks a listener if he'd ever heard of Lewis Carroll. "He wrote a poem one time about this," he says, and an audience stops and listens in the lobby of the San Jose Traffic Court facility as Comaner recites it from memory: Fury said to a mouse That he met in the house, "Let us both go to law: I will prosecute you. Come, I'll take no denial; We must have trial; For really this morning I've nothing to do." Said the mouse to the cur, "Such a trial, dear sir, With no jury or judge, would be wasting our breath." "I'll be judge, I'll be jury," said cunning old Fury: "I'll try the whole cause, and condemn you to death." Comaner explains, as he walks out the door of San Jose Traffic Court, that Fury was a cat. [ Metro | Metroactive Central | Archives ]