Interviews with judicial candidates Catherine Voelker and Martin Zaehringer – Tuesday, February 11th.
To paraphrase Dr. McCoy from Star Trek, “Damn it, Jim! We’re political activists, not trained journalists!” (Much kudos here to all real journalists. They have a very hard job.) Read these interviews with these caveats in mind…
- It’s tricky: Interviewing judicial candidates isn’t a straightforward process. Because of “Canon 5” issues, you can’t just ask them if they are future Ruth Bader Ginsbergs, or Brett Kavanaughs or what their opinions are on abortion, civil or LGBTQ rights or on protecting the environment.
- “Not journalists” – part 1: We are not lawyers either. We consulted lawyers and various Bar sources for acceptable questions and we ended up learning a lot from both interviewees about Ventura County’s court system.
- “Not journalists” – part 2: Not all questions were asked in the same way to each candidate, and some questions had extensive “cross talk” or additional comments, as we followed the flow of conversation. See above – “not journalists.”
- Why didn’t you ask…: Assuredly, some great questions were not asked. However, these interviews took over 90 minutes each and we were grateful that the candidates were willing to sit that long for self-admitted partisan activists.
- Yes, we edited…: Both questions and answers were lightly edited for grammar and brevity. We also added links for information and definitions of legal terms and issues.
- Yes, they edited…: These interviews were not a “gotcha!” activity. Both candidates were given drafts of their answers to edit for clarity and conformance to Canon 5 requirements. We really want to understand who these people are before we vote on them.
- Who’s on first?: Mr. Zaehringer’s comments were placed first, because Ms. Voelker was asked to address additional issues at the end of her interview.
- What did the pros say?: The Ventura County Bar Association released their 2020 Judicial Candidates Ratings and we’ve graphed the results below the interviews.
- Are you doing interviews for Office 8?: No. We recommend that you vote for Paul W. Baelly (endorsements here). His opponent, Steve Pell, is not considered qualified by the Ventura County Bar Association.
- Candidate Bios: These two newspapers give good short overviews of the candidates’ demographic information: VC Star interviews here. VC Reporter blurbs here. Quick facts:
- A moment to say “Thank you!”: These candidates had no idea how long the interviews were going to be, and that afterwards, that they would have to fit editing 18+ page documents into their busy schedules. They were both very good sports and we enjoyed working with them.
Before you start reading the interviews with both candidates, do you know what a “superior court” is? This will be important for making your choice.
“Superior courts have trial jurisdiction over all criminal and civil cases. Special departments of the courts handle family, probate, mental health, juvenile, small claims, and traffic cases. Many superior courts also have specialty departments for nonviolent drug offenses and domestic violence cases. Superior courts handle cases in which parties ask for special relief, such as an injunction or a declaratory order.
Superior court judges serve six-year terms and are elected by county voters on a nonpartisan ballot at a general election. Vacancies are filled through appointment by the Governor. A superior court judge (with the exception of former municipal court judges in now unified courts) must have been an attorney admitted to practice law in California or have served as a judge of a court of record in this state for at least 10 years immediately preceding election or appointment.” (Article on “The Qualities of a Good Judge“)
The Interviews – 40 questions.
- Our questions and comments are in RED.
- Martin Zaehringer’s comments are in BLACK.
- Catherine Voelker’s comments are in BLUE.
Before we started the interviews with both candidates, we read them the following statement. We understand you are subject to Canon 5, (Oct. 10th, 2018), “a judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.“ Section 5A(3)(d) prohibits a candidate for judicial office from making statements that commit the candidate regarding cases, controversies or issues likely to come before the court. As a corollary, a candidate should emphasize in any public statement the candidate’s duty to uphold the law regardless of his or her personal views.
Q1: Do you ever wake up in the middle of the night thinking about a case and wishing you had handled something differently?
Martin Zaehringer: Yes, it has happened. I take all my cases seriously and you can’t unring a bell and change things, but I’ve been practicing for 38 years and there are certainly cases I did in the past that I would do differently now. I would have presented the case or argued the case differently or called this witness or that witness. So, I think about my cases a lot.
Catherine Voelker: You know, I think that happens to every lawyer, probably in every single trial – where you go home and you’re awake at night, and you’re laying there thinking to yourself, I could have questioned the witness differently; I could have stated something differently; I could have explained something differently.
And I think we all do that to ourselves – a little Monday morning quarterbacking after every trial to see what you could have done better. You don’t even know what the results of the trial are going to be yet. But you’re always thinking, I could have done better.
Q2: Please describe one instance in which you’ve faced an ethical dilemma and how did you resolve it?
Martin Zaehringer: There have been instances in the past when I felt that I needed some guidance or information concerning ethical matters and I have always taken the liberty to call the State Bar of California’s ethics hotline. It does not give legal advice, but it provides very good case and opinion references.
Catherine Voelker: I’m thankful to work for the organization that I do. Because, where there has been an occasion where I did not personally believe the charges could be proven beyond a reasonable doubt, I’ve discussed it with my supervisor and the case was dismissed because we have an ethical obligation to only proceed on charges that we can prove beyond a reasonable doubt. Over the years, 15 years here, whenever I have encountered that situation, I’ve taken it to the appropriate person and it’s been addressed. And I think that speaks volumes about our organization and the type of work that we do, wanting to make sure we’re doing the right thing at all times.
Q3: So if elected to the position that you seek, what is the minimum number of years you intend to serve before seeking a judicial post at a higher level?
Martin Zaehringer: I don’t plan to seek a judicial posting at a higher level.
Catherine Voelker: I actually don’t intend to. My vision for myself is to be a judge of the superior court. I don’t have any political aspirations above and beyond that.
Q4: Will you commit to serving out your full term?
Martin Zaehringer: Yes.
Catherine Voelker: Yes.
Q5: What injustices have you witnessed in or outside the courtroom and what was your response to those events?
Martin Zaehringer: I believe that the Canons of Judicial Ethics, Canon 5 precludes me from answering that question so as to avoid any appearance of political bias or impropriety.
Catherine Voelker: Disparate treatment in the courtroom for the parties appearing before the court. That is a frustration. And having seen that, I know that socially we have a lot of work to do in making sure that there is adequate representation in the courtroom. Diversity — Racial bias or gender bias? Is that what you’re referring to? Both. But it would not be appropriate for me to name any specific judge. But those are real issues. Class bias as well? Yeah. You know, I’m a female in a profession that’s predominantly male and it’s predominantly white. And as a minority, in terms of being a female advocate in a courtroom, I can absolutely appreciate how it must be — how it must feel — to not feel very welcomed or heard in that setting, when you have the same rights as everybody else, and yet not feeling like you can identify or that you were represented – fully — in a court of law.
Q6: Are there any specific types of cases that you know now in your experience that you would want to disqualify yourself from as a judge or recuse yourself?
Martin Zaehringer: No, unless it was a case where I have to recuse myself. For example, if I was the judge and one of my former clients came before me, I’d have to recuse myself. Other than that type of case… I cannot think of any types of cases that I would recuse myself from.
Catherine Voelker: No, I don’t think there’s any case that I would disqualify myself from unless one of the parties was a close friend or family member, or something like that. But with the type of work that I’ve done over the years, I don’t have a bias in favor of one person or the other or a preference for one person or the other. So I don’t think there’s any issue or concern where I would have to take a backseat because I’ve dutifully upheld the law for the past 15 years in this profession. And that requires me to set aside any personal opinions I might have about things, because it really has no place in the courtroom. And if you think about it, we have this ideal vision of justice being blind because the application of the law should have no regard for a person’s background, gender or anything else, and you shouldn’t take those under consideration in determining whether to follow the law. The goal is to apply the law equally to everyone. Justice is also human. So that’s why we ask these questions. Oh, yeah, absolutely.
Q7: Have you ever withdrawn from the case because you disagreed with a client?
Martin Zaehringer: I’ve never withdrawn from a case because I disagree with the client. I’ve withdrawn from cases where my client and I no longer had a working relationship, or I couldn’t communicate with the client or I couldn’t reach the client anymore. I have tried very hard not to withdraw from a case because of financial considerations: I believe that as a private attorney I should not burden the court with my business arrangements with my clients.
Catherine Voelker: No.
Q8: Who are your judicial role models?
Martin Zaehringer: I will answer that and I’ll tell you that I used to think telling people my judicial role models would surprise people:
The first one is a retired judge here in Ventura County, Barbara Lane. She handled mostly civil matters. When I first appeared before her, (this was about 25 years ago), I was terrified of her. She was very strict and very demanding that “Things are to be filed on time. They’re to be clear. They’re to be cogent. I’m not wasting any time here.” And then I realized that’s what she needed. Once you cleared that hurdle, she was absolutely wonderful to work with. She said, “look, you got to come into my courtroom prepared. I, the judge will be prepared.” And once I realized that’s what the playing field was, it was great. It was a great relationship with her.
The next one would be our chief justice, Tani Cantil Sakauye. She’s great. She grew up in the Sacramento area. She went to public school. She attended Sacramento City College. Then she went to Davis, got to be a B.A. and then got her law degree from Davis. She wasn’t hired by the Sacramento Public Defender’s office because they felt she was too young. She went and worked for a while as a blackjack dealer. Later she was hired by the Sacramento District Attorney’s office. And she eventually got appointed as a judge and she’s worked her way up to be the chief justice of the California Supreme Court. And this is a terrific story. Young people think “I have to go to Georgetown. I have to go to Harvard Law. I’ve got to get myself in a U.S. attorney general’s office. I have to make this career path to get what I want.” She went to a J.C. and she played tennis and went to the local state university. And now she’s our chief justice. And she’s extremely smart. I like her so much.
And the other one I would choose, which throws people a curveball, is Antonin Scalia. And the reason is because he defended the Fourth Amendment ALL THE TIME. That’s “search and seizure.” It’s just like, thank God somebody is doing it, at least on the conservative side, and I just appreciate the fact that, regardless what his policies were, that was important to him. We have this fundamental right against illegal, impermissible, outrageous searches and seizures. And he wouldn’t vary from that, even if it meant making a ruling against his political beliefs. I appreciate the honesty of the standing.
Catherine Voelker: We know you answered this for Indivisible Conejo. So we can just use that. Yeah. (Indivisible Conejo interview) :”Judge Vincent O’Neill – he inspired my legal career when I was only 12 years old, and has set the finest example as a judge with regard to legal acumen, temperament, and fairness.
Supreme Court Justice Ruth Bader Ginsburg – her work ethic is beyond reproach and admirable.”
Q9: You’re a judge. If you observed a party in your courtroom being poorly represented by an unprepared or ineffectual lawyer, (like your first judge would never have allowed), how would you handle that situation?
Martin Zaehringer: Oh, boy. I’m going to answer that this way, because I’m not sure where we’re going to go with the Canon 5 issue, so I will tell you a story. I ended up representing an older woman whose prior attorney had withdrawn from representation close to trial. He informed the court that they were no longer communicating. He went to court and said to the judge. “She’s not answering questions that are given to her to answer. I can’t work with her anymore.” And she was right there in the audience. She was desperate. She retained me. I secured a brief continuance and I ended up working out a settlement with opposing counsel who was a very agreeable person. But that’s one of the reasons why I wanted to be a judge. I think that that judge missed what was going on, and I think that a judge has a responsibility to the parties, at the very least to have heard her out, or to say to the attorney, “Your client’s right there.” Or if the judge feels that he can’t talk directly to the client then tell the attorney, “I’m not going to hear this until the two you speak. Go out into a hallway and speak and see what we got going on here.” I felt that she was being ill-served by her attorney, and I thought that that should have been obvious to the court. The court should have stepped in and dealt with whatever the court has the ability to handle or to say, “Wait. If you’re saying there’s no communication, I’m looking at two people right here. Go communicate on this.”
Catherine Voelker: I think if there are laws being broken and if somebody whose rights are being violated, then that should be reported. But there are very limited circumstances in which a judge could or ever should intervene in the individual’s choice of lawyer. If that’s somebody they wish to have represent them.
If it’s a public defender and the defendant don’t really have much of a choice? I would have to research the extent of what judges can do in that regard. I wouldn’t want to inappropriately insert myself into the proceedings because that is something a judge really shouldn’t be doing. As a judge, you are not an advocate for either side, and you have an obligation to treat both sides equally. So, I would want to make sure I understood the rules that apply to judges in that setting before answering that question.
A defendant might have a pro bono lawyer who is too busy to prepare a good defense or unable to. That is an unfortunate situation. And while judges should never fall into the role of an advocate, I do believe judges can be impartial while still upholding the fundamental principles of fairness. Say for example that you have a person who’s representing themselves – they don’t have a lawyer at all. They don’t know what they’re doing. And on the other side you have a very sharp, skilled lawyer who is following the letter of the law in terms of evidence and being very smooth with the presentation of their case. The person representing themselves may not know the proper steps for admitting a business record into evidence. So do we say, well, too bad you don’t know the proper words to say to get that record into evidence? You don’t get to admit that document into evidence simply because you don’t know the proper way to do it? No, that doesn’t strike me as fair. I mean, lawyers and judges know there is a legal exception that would allow that business record into evidence. And it wouldn’t be fair to refuse to admit the record into evidence just because this individual might not know or have the education to understand that there was a specific series of steps you have to follow in order to get it into evidence. That’s not justice. The right thing to do would be to assess the situation to see if the record meets the evidentiary requirements for admission -if it does, then it should come in. That’s the right thing to do.
If you see that the defense attorney has missed something obvious, you as a judge might say, God, if I were the defense attorney, I would have done this, that this person is not getting adequate representation. What would be your response to making sure that person was fairly represented? I think it depends what the issue is. If it’s simply a foundational issue in terms of admitting an item, like we just discussed – if it’s simply a procedural technicality and you can see that the legal requirements for admission are there, then you admit it. If it’s a different type of issue where a lawyer has maybe blown a statute of limitations, judges cannot intervene to correct a perceived injustice. I mean, judges have to be extremely mindful of not crossing the line between being an advocate as opposed to a neutral party. So in some instances, depending on what the issue is, the judge can make an assessment. Is this just a procedural issue in terms of laying a foundation, when it’s very obvious that that is something that can be corrected by rephrasing a question or looking at the four corners of a document, or are you stepping out of your role as a neutral, impartial judge and taking over the role of the attorney. I think that’s where judges tend to get in hot water. And you have to be very mindful of your role as a judge. I’ve been asked before, with the trial experience that I’ve had, how I would handle presiding over cases where there was a lot of bad lawyering. And what do you do about that when you know you could do it better or differently? The answer is that you can’t get involved, you have to take a backseat because you’re not an advocate for one side or the other anymore. I’ve had a career as an advocate for the people of the state of California for fifteen years, but as a judge I cannot advocate for one side or the other. And I have to be very mindful and cognizant of the fact that it is not my place to be an advocate anymore.
Now, if somebody whose rights were being traversed inappropriately – for example, if somebody’s Fourth Amendment rights are violated and evidence is seized inappropriately, well, there’s are legal rulings that can put a stop to that kind of conduct. But taking over for an attorney, that’s very that’s a big no-no.
Q10: If you became aware of unethical conduct on the part of a trial advocate on a case in which you were presiding, how would you handle it? Do you believe judges should be required to report attorney misconduct?
Martin Zaehringer: All officers of the court – including judges – have a duty to report attorneys to the State Bar who engage in professional misconduct. There are times where it should be addressed directly to the attorney if the judge thinks the attorney has stepped over the line to keep the conduct from becoming unethical, and I’ll share a story from my own career: One of my law school friends and I opened a small office in the San Fernando Valley right out of law school and a lot of our real world education was learned on the fly. So, my friend – my partner – was representing someone in a criminal case and the prosecution was using a “six pack” photo line-up to establish identity. Sometimes in criminal cases the prosecution uses what is called a six pack – six photographs, and then the witness picks who the person was. And my partner became convinced that the witness was being coached by the prosecutor who to choose. So, during a break he took scissors and cut up the pictures and shuffled them about. He just damaged evidence! The judge had a fit. He just blew a gasket and was threatening to report him to the State Bar. Fortunately, cooler heads prevailed and a letter of apology was written. But my friend hadn’t been done it maliciously; he was a very young attorney and did not have enough experience.
Catherine Voelker: There are specific rules that govern what a judge can and cannot report in terms of misconduct by an attorney who’s appearing before him. If there’s a clear violation the court’s rules, then the judge may find somebody in contempt of court. If there is unethical or unlawful behavior taking place by an attorney, it may be reported to the state bar. But that’s something I would also have to look up as far as the protocol of what judges are tasked with doing at that point. I’m a rule follower and I would want to follow the rules as a judge in that regard.
Q11: Do you believe the current system for disciplining lawyers and judges is effective?
Martin Zaehringer: I think that the state bar should invest more time and money into looking at ethical violations involving larger law firms. If you read the State Bar’s monthly releases on discipline, you’ll see a lot of sanctions being placed upon solo practitioners or small law firms. I don’t think you’ll see discipline being exacted the same way as to large law firms. And I think ethical violations occur there as well. I just don’t think that the state bar spends its resources to go after them
It’s definitely a choice on their part? The State Bar doesn’t share that with me, but anybody can file a complaint in the State Bar. I cannot imagine that somebody who feels that they’ve hired a large law firm and that they’re not being serviced well, where there’s ethics violations, wouldn’t know how to file a complaint with the State Bar where some of the things that have been done are egregious. It may be that large law firms have internal checks and controls to avoid these issues or have the financial wherewithall to make the client whole for any wrong that has been perpetrated.
Catherine Voelker: I don’t know that I have enough information in that regard to provide an honest answer because I’ve never been disciplined. I’ve read articles here and there of what is in the legal magazines regarding inappropriate behavior by attorneys. But I don’t know enough about what goes into the investigation behind the scenes to have an opinion one way or the other. So I don’t think I’m in the most informed place to comment on that.
Q12: How would you deal with a pro se party appearing in your court? (“Pro se” = a person representing themselves in court. Only those charged in criminal cases have the constitutional right to a lawyer. People without means have few options for expert representation in non-criminal cases regarding issues like shelter, sustenance, safety, health, and child custody )
Martin Zaehringer: Kindly. The law commands that they are assumed to know the same things a lawyer does. They don’t. They will fumble through the legal process. Some are more schooled than other ones. I’ve been up against pro se people. Most the most times you’re going to see this in family law or unlawful detainer actions. The judge will turn to the pro se party, and ask, “Do you have any questions?” And instead of having questions, they simply start to make and argument. They don’t understand the procedure. People who are representing themselves do so because they financially can’t afford to hire an attorney. And if they can’t financially afford to hire an attorney, they hardly have the time to educate themselves in the law because they are probably working at a job, two jobs or whatever it is, or taking care of their kids. So, when they go into court, they are kind of trusting that the judge is going to understand that. And I think the courts aren’t doing a service unless both sides feel at the end of the day that their voice got heard. Even if the case is going against them, that at least they got to present their case.
Catherine Voelker: I think the goal is justice. I mean, you want justice to be done. You want to make sure that you’re doing the right thing in terms of being fair. And would the right thing be to say, well, you know that something is admissible, but this pro per individual missed a step that really, you only learn about in law school and know from having read the evidence code, left, right and upside down, so I’m not going to let it into evidence – is that the right thing to do? No. If evidence would otherwise be admissible, but the pro per party didn’t have the background training or the experience to know what the proper method of introduction is, then you shouldn’t hold that against him. People can end up in court in a variety of ways and reasons. And maybe they don’t have the resources or funds to hire a sharp, fancy-pants attorney to represent them. But again, the goal is doing the right thing and the right thing is to facilitate the proper introduction of evidence.
Q13: If you were a judge in a civil case, is it appropriate to put to impose more restrictions on what cases go to trial? Is there a need for more mandatory mediation and settlement efforts?
Martin Zaehringer: It has been so since before the day I was sworn in. It’s just been an issue in civil matters. The parties just can’t resolve the matter, they can’t settle. It’s tied up the system. The state, I thought, made a very good effort to try to create a program where, if you file a civil action, it’s going to be heard in a trial within a year. Then they created an 18-month calendar. But now there are a lot of cases skipping right past the 18 month calendar. It certainly would help to have some alternative forms of resolution. It seems that no matter what ideas the state or courts come up with it, it starts off well and just bogs down. I don’t know a great system for that. The courts have a program where they have less than 12 jurors for some civil trials to try to move matters along. The small claims limit has been increased from $5,000 to $10,000.
As far as criminal courtrooms are concerned, they handle the cases that are sent to them. But there are only so many courtrooms to go around. There is an old expression, “Justice delayed is justice denied.” It can be discouraging when criminal cases are stacked up like jets over LaGuardia.
I’ll tell you a story about a misdemeanor case I tried a few years ago in Los Angeles. The City Attorney charged my client with soliciting a prostitute near the Greyhound bus station. He had actually driven down to L.A. to pick up a person and he was late so he was stopping people to ask if they had seen this person. I tried the case and the jury voted not guilty. But during voir dire, one prospective juror told the prosecutor that he didn’t know why the taxpayer’s money was being spent on this type of case. The prosecutor asked the entire jury pool – about thirty people – if anyone felt the same way, and half the people raised their hands.
Catherine Voelker: I think there is a civil law and criminal component in answering that question. We don’t have mediation in criminal law, but there is mediation in civil cases. For the criminal cases that I prosecute, there are conferences with the judge called Early Disposition Conferences, where the judge and attorneys discuss whether there is a possibility of resolving the case short of a trial. But, if somebody is accused of a crime and they want their trial, the Constitution guarantees them the right to a trial and that’s their right — nobody can take that away from them. A person accused of a crime has every right to demand that the crime be proven beyond a reasonable doubt at trial.
So as you say, this is more of a civil question and, as a judge, would you be sitting in front of civil cases as well? Potentially, yeah, potentially both. My 15 years are in criminal law. Civil is definitely something where I’m less familiar. But the civil attorneys I’ve spoken to, I understand that most of their cases tend to resolve in the mediation stage, in the settlement stage. And I don’t see an inordinate amount based on conversation conversations I’ve had. I haven’t heard whether there is an inappropriate or disproportionate amount of civil cases going to trial. It seems to me that the civil cases that do go to trial, go to trial for a reason. So I don’t know if more mediation needs to be imposed in that regard. So if you become judge, should we be asking this question about five years from now, when you have a more defined answer? That would probably be a better time. Yeah, when I’ve seen more of how civil cases progress through our courthouse, because at this point, I haven’t been exposed to a lot of that.
Q14: What solutions do you see for “overcharging”, a practice which discourages even innocent clients from seeking due process and confuses juries? (See here, here and here for definitions and discussion of “overcharging”.)
Martin Zaehringer: I feel that Canon 5 of the Code of Judicial Ethics precludes me from commenting on this subject.
We’ve been given the impression that plea bargaining doesn’t happen in Ventura County. Is plea bargaining and overcharging two parts of the same whole? Plea bargaining seems to be a word of art. There are a number of felony cases that you cannot plea bargain by statute. But negotiating between the prosecution and the defense occurs often.
So there is some bargaining back and forth as to what the final counts will be? Yes, so there are still some negotiations. But I think what is confusing about plea bargaining is that sometimes people think in terms of what the sentence is going to be. But negotiations can involve what criminal counts a client might be willing to plead guilty to, or an understanding that the prosecution will not seek an incarceration sentence above a certain number. I will say, that in 38 years of practice, pre-trial resolutions have become more complex given all the consequences with immigration issues, Three Strikes law, and such.
Catherine Voelker: Overcharging is a practice our office does not subscribe to. Our office takes the law very seriously, and you should not — and ethically cannot — file charges that are not supported by the evidence. I’m understanding you to mean overcharging in the sense that people are filing charges that are not supported by the facts or the law? That’s wholly inappropriate. That should never happen. I don’t care where you work. The only charges that should be filed in a criminal case are the ones supported by the actual facts and evidence of the case. So, if you have two charges supported by the evidence, then you file two charges. You shouldn’t be adding anything extra that is unsupported by the facts or law – that’s unethical, inappropriate and against the law. On the other hand, you can’t just ignore charges that are supported by the evidence either. When we take an oath to follow the law, it’s a very strict assessment of the facts of your case and whether it is supported by the law. If yes, and if you can prove those charges beyond a reasonable doubt, you file the case. If you cannot, you don’t. And that’s a horrible, horrible idea to think that somebody is filing charges that are unsupported by the facts and law. Overcharging is common in some jurisdictions to encourage plea deals. I have never been trained that way. I’ve never filed charges that way. And I don’t know of any attorneys in this office who would do that. That’s wrong.
If there is not a practice of overcharging, is plea bargaining fairly rare then in this department? District Attorney Totten has a no plea-bargaining policy.
Q15: In hate crime cases, what are some of the issues in regards to balancing free speech rights against the need to control offensive activity?
Martin Zaehringer: Well, that’s one that I’m just going to take on a case by case basis, because it’s hard to draw a bright line as to what is free speech and what becomes criminal hate speech. Legislatures try to do that as well. I’ve handled hate crimes. I’m defended people in hate crime cases. I would instruct the jury to follow what the law says as far as what a hate crime is.
Catherine Voelker: That is one I don’t think Canon 5 is going to let me answer.
Q16: What issues are involved in deciding whether or not to admit evidence of battered women syndrome or battered child syndrome?
Martin Zaehringer: I think this is a Canon 5 issue that I should not comment upon. Obviously, each case is unique and is going to be determined on the merits of that case.
Do they not have experts actually examine the defendant? This falls within the Canon 5 prohibition as well.
Catherine Voelker: The evidence code has specific provisions for the admissibility of that type of evidence. Typically, we see it come up in criminal cases in an effort to explain actions or behaviors. There are certain prerequisites outlined in the Evidence Code that must be satisfied for that type of evidence to be admissible and, if you meet those prerequisites, then the evidence comes in. It’s a matter of examining the Evidence Code, and looking at the case-specific facts and any other applicable law. And if it’s appropriate and lawful, then it would be admitted. It’s like a recipe at that point? Yeah. You know what? That’s exactly how I describe it to jurors too; any element — any crime — is comprised of elements. And I always analogize elements in a crime as being like ingredients in a recipe.
Q17: So what is your general judicial philosophy?
Martin Zaehringer: My general philosophy is this. The voters and legislators make the laws. The legislature passes a bill that the governor signs it into law. The voters might pass propositions that become law. You follow the law. You follow the Constitution. There are two areas, I think, where judges have some latitude in what is appropriate.
One for both civil and criminal has to do with pretrial motions, motions before the trial, in what evidence is permissible or what will be allowed to be brought into court for the trier of fact, which is the jury, to consider. My feeling is that the more relevant evidence that the jury can consider, the better chance the jury is going to make a good decision.
The other applies to criminal law, and that would be in sentencing. Here, the judges have some latitude in imposing sentences in most cases. Personally, I think this is an opportunity for the defense to put forward a plan the defendant will execute on a path to rehabilitation. I don’t think that is utilized adequately by the defense. If I was on the bench and about to impose a sentence, I would like to hear about concrete plans the defendant has made to avoid committing crimes in the future.
Recently someone said to me that if the punishment does not fit the crime, then justice has not been served. It’s important to remember that such an expression should be applied both ways.
Catherine Voelker: I believe in fairness, fairness to both sides. Being a competent, knowledgeable judge, treating everybody with the respect and dignity that they deserve in a courtroom, not playing favorites, exercising no preference for one side or the other, making sure everybody’s rights are upheld. I think that you need judges with an even temperament who can appreciate where someone’s coming from. Courtrooms are can be pretty intimidating. And it’s a formidable environment for somebody who’s less familiar with our system of justice. Whichever way you look at it, even people walking in the door as jurors, they’re a little put off by the formality. Taking a step back and realizing that you’re not God, you’re there to serve as a referee and make sure that everybody in that courtroom is comfortable speaking up and feeling like they are being heard, and that you’re open minded and that you haven’t shut the door on people before they’ve even presented their position to you. So being open minded and fair, I think is critical. Being competent and knowledgeable and knowing what you’re doing. Knowing what the rules are. And I think that’s being a responsible judge, a judge who is also capable of making the toughest decisions when they need to be made. It’s not always easy to follow the law in light of whatever your personal opinions are on things, but that’s what we’re required to do. At the end of the day, you want to serve in a way that inspires trust, confidence, and faith in your capabilities and decisions as a judge.
Q18: What are the biggest changes you think we need to make in our justice system and your vision for the future of our justice system?
Martin Zaehringer: I’m trying to avoid getting to a trap where all we talk about is criminal law because these courts are much more than just criminal law. There are civil courts, which affect a lot of people. Family Court, Probate Court. One of the problems is efficiency and speed. Things linger for way too long, which exhaust people’s savings. People wait too long, when they get here, which is fine if you’ve got the funds to do that, but if you’re a single mom and you have babysitting problems and you come down to family court and you’re there at 8:30 and you have to wait until four o’clock, even though you’re on calendar for 8:30, then the system’s letting people down. How long have we had the Internet? When I started, there weren’t personal computers, let alone the Internet. I really think that 70 percent of the appearances could be satisfied by filing pleadings online, without having to come down here and waste people’s time. A lot of people may not an internet access but now we could switch over some of it.
Attorneys make appearances on misdemeanor cases, which often end with nothing more than continuances being granted. Everyone is inconvenienced. The courts are jammed up with this, defendants and witnesses come to court and waste their time. Why can’t these things be done electronically? If you are in agreement to continue your matter or resolve it, why can’t these cases be taken care of electronically?
I think one of the things we can do is to streamline it, to use technology to eliminate a lot of these things. And I think maybe some other things that don’t necessarily have to do with criminal law, can be resolved by pleadings. I would encourage parties to stipulate to as many facts and law as possible and reduce testimony down to declarations, if possible. I had this happen a long time ago in a civil case with Judge Barbara Lane, whom I mentioned, which was a breach of contract case involving two people, landowners, who had dispute as to rights to property, She brought both attorneys into her chambers and said “I’ve read both of your trial briefs. Do I really need to take testimony?” And the other attorney and I said “No, not really”. Then she said “Fine, I will make this case based on the trial briefs, I’ll research the law you’re talking about and I’ll make my decision.” That was great. It was great because the decision she made was a fair decision. If you trust to judge, if there was there’s some way you can create this mechanism, it should be done. It would just clear up the court system so much.
Catherine Voelker: (We asked the question to her in a different format.)
What do you think of the greatest obstacles to justice?
That’s an open-ended question with so much, so many variables involved.
What are the biggest changes you think we need to make to our justice system?
I’m thinking in terms of.. let’s see. How I can answer that question without stepping into C5 territory.
Obviously, our system is not perfect.
No, it’s not perfect.
Are there some institutional changes that need to be made that create more justice? What would make courtrooms better?
I can’t comment on justice reform or anything like that (Canon 5), but in terms of representation in a courtroom, I think if we saw more diversity on the bench, in terms of more women, more minorities, I do think that it would more accurately reflect the demographics of our community, which might put people in a better position when walking into that courtroom – feeling like that judge is going to be fair to them because they can identify and relate to that judge, rather than feeling like they’re not really being represented or understood by those in positions of authority in our court system.
What is your vision for the future of our judicial system? So we currently have twenty-nine judges on the bench. Only six of those judges are women. And I find that curious. It’s unusual, considering the fact that women outnumber men in law school now, and the percentages of women versus men graduating from law school. Yet we’re not seeing those numbers on the bench. And so, you know, I think that’s something that needs to change. And I think we will see it happen. I mean, there’s a lot of capable lawyers with diverse backgrounds out there. And I’m confident that we’re going to see great things in the future in terms of getting a more diverse representation of our community on the bench. I see that happening, going forward. I hope to be a part of it, but with or without me, I do see a lot of people in our community really proactively trying to take steps in the right direction to accomplish that. So it’s not just me by myself with this vision, but there are a lot of great organizations that also seek greater equality in representation. We know that you do a lot of volunteer work with women and girls and legal teaching them how to do legal activities and to interest them in that.
Q19: Do judges have an obligation to improve public understanding of the courts?
Martin Zaehringer: Yes. I don’t know where to start to do it. But, yes. The answer is yes.
How should they carry that out? Are there educational things that that that judges can do? Or do you have any idea how judges can improve the public understanding of how the courts work? There needs to be more outreach. If you’re a prospective juror, you come to the jury assembly room, and a judge comes down and talks about what the court system is. Junior high and high schools come here on a field trip to take a tour of the court. Usually they see part of a case in trial and sometimes you get to talk to them about it. I think there needs to be more of an outreach by judges to go and speak to the public. And I don’t mean to speak to their own kindred. Lawyers and judges volunteer a lot of their time, but we need to speak to people who aren’t familiar with the system. You can go out and talk – “This is what your court system is.” I just don’t think there’s enough outreach to the community. My clients come into the court system and have no idea, other than what I’ve told them, what this thing’s about, from start to finish. I don’t know if the source of problem in civics classes in high school. I don’t think there was ever a time where this was explained well enough to students to understand how the courts work. Other than how a bill is made and that there are nine people on the United States Supreme Court.
Yes, there were those YouTube videos on how a bill is made. Teenagers need to know more about the law – that their misuse of the Internet could equal serious criminal charges. And people are walking into crimes, they don’t know they are but they’re walking into them.
Catherine Voelker: To improve public understanding? What happens in courts, as you said, intimidates people. People don’t understand why a case they thought was going to be resolved one way, comes out completely differently because of some legal issue. Yes. And something you talked about earlier when we first met, kind of taps into that. And the fact is that judicial elections, they’re so different from the other races that are drawn down party lines. Because in those elections people can ask the candidates, “What’s your stance on this?”, that or whatever other trending issue or social concern. And those candidates can comment on the issues, and there’s a lot of back and forth campaigning done with regards to specific issues. For the judicial ones, as I’ve been out and about in the community talking to people, I’m finding that lot of people never vote for the judges because they don’t know anything about them.
But it troubles me a little bit that people just abstain from voting for the judges because there’s not enough information about them. And so as I have gone around about talking to people and introducing myself, I’ve been hearing people say, “I’ve never seen a person running for judge of the superior court take the time to do that, to introduce themselves, to let me know what a judge does.” I ran into somebody the other day who had no idea what a judge of the superior court does. And just taking the time to explain, hey, this is where you would encounter a judge. Here’s the type of work a judge does on a daily basis. Here’s a little bit about my background. Taking the time to, what you guys are doing as well, inform people and let them decide whether they want you for their judge or not. They can at least have a decision or take a position on whether they want you in their courtroom should they ever be there. But some of the more gregarious judges I know, they are social and they do take the time to invest in the community in a variety of different ways, as allowed by the judicial code of conduct. Because, there are, of course, limits on what judges can and cannot do in terms of community involvement so as to not raise concerns or doubts as to their ability to be impartial and fair.
But where they can, where it is appropriate, they should, because it is an investment in our community and people do care about who’s representing them on the bench. And I think it’s a helpful discussion to have when you can have it.
Especially here in the sort of the beginning of a judicial career where you don’t have a record that people can see. Right.
In the federal system right now, there are judges going through hearings that have very clear trails of rulings behind them. We know the people that we’re electing aren’t blank slates but we’re not allowed to ask about opinions or prejudices until after they’re elected. And that’s a frustration.
Q20: Serving on the bench, do you believe you have a role in bringing important legal or judicial issues before the public or the legislature?
Martin Zaehringer: I am not going to respond to that as my answer could be a violation of the Canon of Judicial Ethics.
Catherine Voelker: That’s a Canon 5 one.
Q21: Would you favor or oppose a system in which all sentencing decisions were routinely reported in local newspapers indexed by the name of the judge?
Martin Zaehringer: Anybody can do that. There’s nothing to stop any publication from doing this. A long time ago, I belonged to the Rotary Club in the San Fernando Valley and we had a speaker concerned with sentences judges imposed in criminal cases. This is before the Internet and he was trying to drum up business for his idea called “You judge the judges.” His idea was that you get the name of the judge, and the number of cases they had, and what the sentences were. I think the problem with that is it takes the humanity out of what judges do. There may be a case where the judge feels that it’s in the best interests of justice is to suspend the imposition to sentence. So, if somebody is out there tracking this, they may decide that this judge as way too liberal. And the judge’s political beliefs might not have had anything to do with the decision. You cannot stop people from “crunching numbers” like this, but I think it lends itself to abuse.
Catherine Voelker: That’s interesting, I think a lot of a lot of that happens already, it’s not mandatory, but I’ve seen a number of my cases in the media where the sentencing is reported and the specific judge is talked about. But maybe because they’re murder cases and it’s high profile – high profile cases. I can see the pros and cons to both sides of that. I can see how there would be some accountability. But I also think that there could be some problems in that you would have public opinion potentially swaying the judge’s duty to follow the law.
Public perception, personal opinions should never affect a judge’s duty to uphold the law. If you’re deviating from that on some other basis, that’s where it gets really inappropriate. And then you have judges catering or pandering to one side or the other. And so if you have a very, I don’t want to say it’s sterile, but in a sense it is a sterile dedication to supporting the constitution and the law. Strictly following the law as a judge shouldn’t get you into trouble. The second you allow, whatever your family’s thought process is about something, or public opinion, to influence or sway you one way or the other, that’s inappropriate. But politics can get into the judiciary just by the fact of having an election. Right.
Q22: Do you think the court system is working or do you believe that the civil or criminal justice system is breaking down?
Martin Zaehringer: It’s actually better than it was when I started when 38 years ago. The civil system was really broken. Many times, if you filed a civil case, you’d have to wait five years before you went to trial. I think in the criminal system right now, I can see a problem coming with the criminal courts. We do not have enough courtrooms to handle the case load and the constant delays waste people’s time and taxpayer’s money. That being said, at this point, I think the system as a whole in California is better than what I started but it needs to be vigorously managed to avoid slipping into disarray. This isn’t doomsaying: when I started practicing in 1981, the Los Angeles Superior Court was a mess.
Catherine Voelker: It’s working. It’s not perfect. There are certain areas where you could envision improvement, some of which we’ve talked about earlier. But compared to some other systems of justice, we’re in far better shape. You know, in countries where people are presumed guilty and then you have to go to trial to prove yourself innocent. I mean, we definitely don’t want that. But we’re far from perfect.
Q23: Do you do you believe the composition of juries adequately and fairly reflect society at large? Why or why not? And if not, what will you do to change this? And what are the pros and cons of using driver’s license registration as a source of jurors?
Martin Zaehringer: The problem is you lose a lot of jurors because they can’t be there in court. After decades of doing this, prospective jurors come into the courtroom and I can tell you who is going to ask to be excused. Students, day laborers, people who work for small companies who don’t pay for their jury time. Parents with small children. And this just cuts out whole segments of the population from being jurists. A party is supposed to be tried by a jury of your peers but we eliminate all these peers because of economic reasons. The answer there lies with the legislature. Increasing compensation for jury service would help. A jury of your peers should not always be an “Amgen jury,” or a “public employee jury.”
Catherine Voelker: That’s a tough one, because I see who walks in the door to sit as a potential juror in my cases. But I also know people who’ve deliberately avoided jury duty. I’m like, “Hey, we need you on this jury.”
I’ve heard it all in terms of why people don’t show up. “I don’t have time for that. I’ve got other things to do. I’m very busy. I’ve got work/family obligations.” I can appreciate a frustration for lack of representation in the jury pool. But we also need to encourage everyone who gets that jury summons to actually show up, because I think there are many considerations involved in making sure juries accurately reflect the demographics of our community. And part of it is getting people to just show up and appear in response to those summons. Just because you issue a summons doesn’t necessarily mean they’re going to come to court. They may have other pressing obligations, like family, or work. They just can’t do it for a variety of reasons. How to solve that? That’s a conversation for another day. I don’t think professional jurors are the way to go. I like the idea that we can have members of our community sitting to decide an issue one way or the other. But I think half the battle is getting people to respond to those summons.
We thought Ventura County was pretty good in terms of our juror response rate. (We were wrong…In 2015, Ventura County had the top rate of “no-show” jurors in CA at 45.66%!)
I don’t have the actual numbers. That is a question for the jury services division. But, I have encountered quite a few people who just ignore that summons.
As people who are called every year for jury duty, we know that the people who you’re probably hoping can stay on juries, that is, the poor, self-employed, students…
That it’s hard on them.
That’s where we go back to whether there’s a role for the legislature to help make juries more accessible and fair.
I know other counties have done things where they have trials taking place, and I can’t remember if it’s Riverside or Kern or San Bernardino. It’s one of those counties out there, where their trials go, I think they’re three days a week and then they have the other, for lack of a better word, “court stuff’ happening on the other two days, so that people can divide their time properly if it’s just a three day commitment per week to do a trial. They can still work or attend to their other obligations the other two days. So there’s things that can be things that could be considered. I know other counties do things a little bit differently in that regard. That might make it easier, but those counties could be facing different problems that I’m just not seeing in this context. I certainly can envision that being a lot easier for someone come to court for three days a week versus five days a week, or some scheduling division to make it manageable for potential jurors. But there are things to think about. Absolutely.
Q24: Why should voters support you over your competitor?
Martin Zaehringer: I have been waiting for this one. I have been a trial attorney for 38 years. I have tried civil and criminal cases. I have probably tried over 200 cases. In my first office right out of law school we were located in a little hole in the wall office on Sepulveda Boulevard in the San Fernando Valley. If someone came in looking for an attorney and their check cleared, or better yet, they had cash, we were their counsel.
We learned everything. More importantly, we learned that everything matters. What might be mundane to the court or the attorney might be gravely important to the client. I learned a great deal about various areas of the law. I also learned never to take a case for granted.
I moved to Ventura County thirty years ago. That lesson has stayed with me. My clients are poor. When they pay me my retainer, they are making a great sacrifice in doing so. I do not take that lightly. I do not take what happens to them in court lightly. As a judge, I will always keep foremost in my mind that the parties appearing before me care very deeply about their cases, and that my decisions can have a great impact upon their lives, an impact that may not be immediately apparent to the attorneys or the court.
I want all parties before my court to leave feeling that their argument was heard, their case was fully presented without interference from the court, and that win or lose, they received a fair hearing.
Recently, the Ventura County Reporter published an election primer which referenced an internal matter in the Ventura County District Attorney’s office while Ms Voelker was a supervisor. A google search shows this was reported by the Ventura County Star on December 2, 2011. Voters would be interested to know how justice was relegated to a competition. (original VC Star story here)
Catherine Voelker: I think as a deputy district attorney with my background, I have a demonstrated record of not advocating for one single person – I’m not paid to represent a singular client, a singular business or anything like that.
I represent the people of the state of California and that includes everybody in the state of California. When a case is submitted to the district attorney’s office for review and consideration as to whether or not criminal charges are to be filed, I don’t just look at whether or not the victim’s rights have been violated. I have to take into account the rights of the accused, as well. I am absolutely mindful and cognizant of that person’s rights as well, because they are equally important as the victim’s rights. And whether or not their rights — the accused’s rights, — were violated, whether it’s during an investigation or arrest, those are all factors I have to take into consideration. I also have to account for the rights of the victim. And then community interests, of course, are at play there, as well in upholding the laws which exist in our community. So that’s one aspect, having that role for the past 15 years, that allows me to account for victims’ rights, defendants’ rights, and peoples’ rights. That’s multifaceted, and having that background would make for a smoother transition to the bench as a judge, because a judge also has to account for the protection of everyone’s rights and interests in her courtroom, and not just one single person or entity. Another thing I know that is important to voters in this community is what we had talked about earlier, and that is increasing the amount of diversity on the bench. There are two judicial openings in this election, and I am the only female candidate of the four individuals vying for those two seats. Our bench already contains that which my opponent brings to the table in this election. As a well-qualified female candidate in this race, I can bring something to the bench that my opponent cannot, and that is diversity.
Q25: What are your views on the need for more diversity on the bench?
Martin Zaehringer: I agree with that, and that’s why I am asking people to vote for the 65 year old, white man.
Can you expand on that? And how the court treats members of racial groups, ethnicities, genders, and classes? Right now we have 29 judges in Ventura County. We have five female judges on the bench. We had more at one point, but a couple retired. That’s inadequate for this county. I don’t know how many Hispanic judges we have on the bench. I haven’t checked census figures, but I would think this county’s probably 45 to 50 percent Hispanic. The judiciary should reflect that or be close to that. One of the problems is lag time in effecting change. If a judge is appointed or elected, that judge is pretty much guaranteed to spend 20 years on the bench or until they decide to retire. Say for example that they get appointed by the governor and they come up for election. Rare is a judge who somebody runs against, because it is almost unheard of to defeat an incumbent judge. Voters don’t want to spend their life becoming sophisticated about the court system; they have lots of other things going on in their lives. So when they go to vote and see that a candidate is a judge, human nature is that they will be voting for that person. So, if you have a certain set of judges and they’re just going to keep running for re-election every six years, there’s a great deal of time that passes between running for election. And they’re going to win. Essentially, their career will last as long as they want it to.
If they’re running unopposed, they won’t even appear on the ballot. That’s right. They don’t even appear on the ballot. That never comes up. So it’s almost like safe seats.
Do we need more judges in order to increase the number? Yes, that we do. This county could use more. Look at what we did, because of budget cuts…we essentially shut down Simi Valley’s Courthouse. They’re just doing traffic cases now. But it was designed to hear trials, it was designed to hear family law cases. Now it’s reduced to traffic cases. We have the facilities to have more judges hearing cases in this county.
So saying all that, what are your views on whether the court as a whole deals effectively with racial and gender bias? I think that the court system as a whole is pretty diverse. I think it needs a more diverse bench, and that will happen. I don’t think we have very many African-Americans as employees in the court system. I don’t know if that’s a factor of where we live here. I’m not privy to what’s going on and I don’t know this information. I’m an outsider.
Catherine Voelker: (We asked this question to her in a different format.)
What are your views on the need for more diversity on the bench?
So I think we talked about that really well already.
What are your views as whether the court as a whole deals effectively with racial and gender bias?
So I think we talked about that really well already. I think it could be better. It could definitely be better. (our side comment: “She’s very discreet about that…”) I have to be because, out of respect for the office, I’m not going to call anyone out specifically. But, I have personally appeared in court in front of many different judges, on a variety of issues over the years, and I know it could be better. It could be better.
Q26: Do you believe that all citizens have adequate access to legal help and the legal system? (We don’t. Read this.)
Martin Zaehringer: No.
And if not, what can be done to provide wider, better access? When I first started practicing law, I worked for a few years in the San Fernando Valley. There actually was a program providing attorneys for indigent people with family law matters. I don’t know if this was funded by the county of L.A. or the state. It lasted a few years and then the funding went away. I think that’s incredibly sad. Because family law is the one area of law that affects almost everybody every single day and so many people can’t afford attorneys. I saw Judge Smiley recently talking to two attorneys who were asking for ten thousand dollars from the estate for each attorney to continuing prosecuting the case. It was a divorce case. And Judge Smiley said, “I don’t want to see a hundred thousand dollars in attorney’s fees in this case and the parties bankrupted.” That’s a problem for me concerning access to the courts. The poor don’t have access to the courts that the wealthy have, even though they may have a very serious matter. In the Ventura Superior Court, there are free, self-help center to assist in filling out paperwork and pleadings, but the people who staff those centers cannot give legal advice. They cannot represent them in court. The county bar has a pro bono program. It strongly encouraged its members to be involved in the pro bono program. But that doesn’t come close to addressing all the needs of the community. The poor are the worst served in our in our county on this. And because so many cannot afford legal representation it causes stress on those free services.
Catherine Voelker: I think it is challenging for a lot of people to get representation. I mean, there are certain organizations that do a lot of outreach, legal aid clinics that try and help those who can’t afford representation for themselves.
But not everybody has money to pay for the services of an attorney. And some people are ending up representing themselves, because that’s all that they can do. So. If people are able to, if lawyers are able to invest in contributing their time to clinics like that, that goes a long way. But, it’s not going to get to everyone. You know, it’s not something that’s going to completely solve the problem.
So would this be a systemic change that we need to talk about in terms of the rights of the accused as well?
In terms of the rights of the accused in a criminal case, they do have the services of the public defenders, who are excellent. Well, you have great access in the sense that if you cannot afford an attorney in a criminal case, one can be appointed to represent you.
We know some of your public defenders. They’re awesome people. We know that many of them probably have a lot of cases.
They do. Yeah, they do. But when we’re talking about a person who’s accused of a crime and, you know, some of the best defense attorneys are the public defenders in this county. But in terms of the rights of an accused, they do have the right to a public defender, the services of a public defender or an attorney of their own choosing if they wish to hire somebody else. They can choose to represent themselves. Probably not the wisest decision to make when you’re accused of a crime, especially since you have the opportunity to partake in the services of the public defender.
But that’s a very personal decision. That’s a hard decision for a lot of people to make in that situation. And it’s something that only they can make depending on their personal situation. And I think the public defender’s office, they have an enormous caseload, like we have an enormous caseload within the district attorney’s office. And I know both agencies would certainly appreciate more funding and resources to be able to hire on more attorneys to manage that, those high, heavy case loads. But, where do those funds come from? But the right to a court appointed attorney doesn’t carry over to civil cases or family court, so what choice do people have in that situation if they don’t have money to hire a lawyer, and there is nothing to say they have a right to a court appointed lawyer. I think that is why we see judges in those situations working so tirelessly to ensure fairness across the board in those courtrooms, when you have savvy representation by counsel on one side, but not the other.
Q27: Which factors are considered in granting and setting bail amounts for defendants? (Article on “cashless” bail here.)
Martin Zaehringer: This is a matter which I believe Canon 5 of the California Code of Judicial Ethics directs me not to answer.
Catherine Voelker: So currently we have a bail schedule and it’s statutory. You go to the bail schedule and look up the specified offense to find out what the bail amount will be.
Q28: What criteria would you use for deciding whether to impose term sentences outside of standard ranges, if you’re allowed that latitude?
Martin Zaehringer: The California Rules of Court have a comprehensive list of factors in aggravation and mitigation concerning sentencing.
Catherine Voelker: Not sure of your question.
There are standard ranges for a particular crime, say 10 to 15 years, and whether you would add more time on because of some hate crime or take off time because the criminal behavior was out of character? What criteria would you use in deciding?
That criteria is actually codified as well. So it’s not up to the whim or feelings of the judge, so to speak. So most crimes, they have a sentencing range. Felonies have a triad, you know, a low term, mid term or high term. And then there are rules of court that establish or outline aggravating and mitigating factors that both parties can bring to the court’s attention to determine the most appropriate sentence. So you consider all of that, you consider mitigating factors, you consider aggravating factors. And it’s a case specific assessment and you come to the appropriate decision based on everything you have before you.
So it is something that you as judge would ultimately would decide and not necessarily the D.A.?
Yeah, correct. I mean, the D.A. can have a position on sentencing. The defense attorney can have a position on sentencing. They make their pitch. They talk about aggravating and mitigating sentencing factors. The judge considers all of those things, it’s a balanced approach to this assessment, with the goal of being as fair and reasonable as possible.
And that would be based on your personal analysis as they both could have legal arguments that were equally correct? Correct. But they may be different by 5 years?
Right. That decision. So that’s a tough job. I’ve seen judges work very hard to be consistent and fair in their sentencing determinations. That’s a tough job for sure.
Yes, a Solomon’s job.
Q29: This is in relation to our earlier question on overcharging. Would it be appropriate to present the D.A.’s plea bargains to the jury and judge, so if the defendant didn’t take the plea bargain, and went to trial and lost, he could avoid an overly-long sentence?
Martin Zaehringer: The juries are instructed not to consider possible sentences when deciding if a criminal defendant is guilty or not guilty. That is not the role for the jury; that is left to the judge.
I strongly believe that everyone is entitled to exercise their Constitutional right to a trial and should not be punished or threatened with punishment for doing so.
Catherine Voelker: (Not an applicable question based on her previous comment.)
Q30: What are the options regarding alternate sentences for nonviolent offenders?Are there options?
Martin Zaehringer: The Legislature has been active recently in crafting laws so that there are alternate sentences for nonviolent offenders. What I would like to see are defendants being pro-active in creating life plans to avoid recidivism.
Catherine Voelker: Yes, there are options. Diversion programs, and mental health care type of diversions.
Q31: As a judge, you will be overseeing trials for “wobbler” crimes – those that can be charged either as felonies or misdemeanors. What criteria would you use in sentencing to allow Penal Code 17(b) reductions to take place in the future? (What is a “wobbler” crime and what is PC 17(b)?)
Martin Zaehringer: This is a question which lends itself to an answer about taking each case individually. I am afraid saying anything more than that runs the risks of a Canon 5 violation.
Catherine Voelker: It’s hard to because every case is so different and every individual is different. You don’t want to have a cookie cutter approach to every single case, but you do want to be uniform and consistent. Again, the goal is to do the right thing and not treat people differently. If they’re similarly situated, than they should be treated the same. But just having a “practice,” that term gives me a little bit of pause.
Defendants, at the age of 20, may not be the same people that they’re going to be at 40. There’s a possibility for redemption that happens with sentencing that allow for a future PC 17(b). And so should judges routinely incorporate that potential within a sentencing decision?
The question is more statutory, because if the law permits it, that the judge should always be able to consider that as an option, because certain crimes, they’re designated wobblers from the get-go. And so either it will always have the potential to be 17 (b) or it will never have the potential just on that.
It does depend on whether you send them to prison or county jail, which would affect whether they are ever able to partake in PC 17(b). Is that something that you think about?
I’m not a judge yet, but I do think judges consider that, but I can’t commit to one way or the other because again, that would be violating Canon 5.
Q32: What do you think are the causes of the high rates of minority incarceration?
Martin Zaehringer: Answering this question might create the appearance of political bias or impropriety and be a violation of Canon 5.
Catherine Voelker: I think the answer to that question has so many answers. You could definitely look at areas where there is a high volume of crime and youth who are perhaps unable to get out of certain settings or environments. And later as they age into adulthood. It makes for some difficult choices. Difficult choices they have to make as they grew up and how to get themselves out of a high crime area. I mean, there’s so many factors that go into addressing that particular issue.
You know, just thinking about the cases I’ve handled over the years. You see, unfortunately, some people not able to get out of out of an area where they’re exposed to a gang lifestyle. Gang crime, gang violence, gang culture. And it’s hard to get out of that, if you don’t know anything else and you’re not exposed to anything else. And I think one of the really one of the things that I like about Boys and Girls Club, YMCA, all of those organizations that are trying to positively influence and intervene with youth to get them to realize their potential above and beyond their current circumstances. Those groups do great work encouraging kids to make positive choices and exercise sound judgment for themselves, by staying in school and not succumbing to negative peer pressure. Because, a lot of times in certain communities they may not have the benefits of those positive influences because of whatever the family dynamic is or community dynamic is. And a lot of outreach, I think does go far. You just have to keep doing that outreach because you can affect change.
Q33: Do you believe that there is such a thing is a victimless crime? If so, what defenses would you put in that category?
Martin Zaehringer: Some people would say for instance that prostitution is a victimless crime, but then you get these socio-economic arguments that it’s not; that there’s an impact on society and that somebody is being taken advantage of. And then you get someone such as my wife who likes to say, “I think there are too many laws.”
Catherine Voelker: I see cases where there are identified, named victims with dates of birth where you can say this person has been murdered, raped, kidnapped, or assaulted in some fashion. And you can clearly identify that person as a victim of crime. The other victims of crime may not be so obvious, such as when it’s a DUI case and you have someone who is driving and crashes and damages property – you may not necessarily see a face, a person, on the other end, but somebody’s property has been damaged. So there may not always be a named victim in a charging document. But there are long ranging repercussions to everything we do. Graffiti, vandalism, again, that’s the property damage, somebody whose property is being damaged. Possession of narcotics and paraphernalia. -If you think in terms of “big picture,” about our community as a whole, and issues with crime that are exacerbated and compounded by narcotics and substance abuse, can you really say it is a victim-less crime? Possession of a significant amount of methamphetamine that’s then getting disseminated or spread throughout our community does a lot of damage in a variety of different ways. So, I don’t know that I would say that there’s a victim-less crime. I mean, there may be crimes where you don’t have a face on the other side of the crime directly that you can ascertain with instant specificity. But then you have the consequences to criminal conduct that is so far reaching, it’s hard to say that it’s there’s a victim-less crime.
Q34: Do you feel the war on drugs has been effective or ineffective?
Martin Zaehringer: Fifty years ago when I was in high school, kids were dealing drugs on the school bus. It hasn’t changed. I cannot see how anyone can argue that the war on drugs has been effective.
Catherine Voelker: I think there’s still a significant problem with narcotics.
(Preface for the following immigration-based questions: In 2017, the California chief justice Tani Cantil-Sakauye urged federal authorities not to pursue undocumented immigrants at state courthouses as it creates immigrant populations less likely to report crimes, to come forward as witnesses to crimes and to seek help if they are victims of crimes. Since then, AB 668 “Courthouses: Privilege from civil arrest” was approved by Governor Newson, which clarified the power of judicial officers to prohibit activities that threaten access to courthouses, including by protecting targeted people from arrest at a courthouse. (Article about this new law here.) The bill would provide that no person shall be subject to civil arrest in a courthouse while attending a court proceeding or having legal business in the courthouse. That bill provides that no person should be subject to civil arrest at the courthouse while attending a court proceeding to have a legal business in the courthouse.)
Q35: Do you judge the boundaries of this protection? How far would you extend that boundary of protection?
Martin Zaehringer: If I’m the judge, I want my matter to be heard. I want the cases before me to be fully heard. I want the witnesses, the victims, the parties, the evidence, all to be presented. You end up with these chokepoints in the state where people are going to congregate because they have to. Courthouses are one of the chokepoints. So, it makes it very easy for, in this case, ICE, to send officers to pick someone up at a courthouse. If that happens before the matter is heard in court, then justice has been frustrated.
Catherine Voelker: That is a Canon 5 question. But if your question is just in terms of enforcing the law itself, then I know I can strictly uphold the law. If that’s the law, I will follow the law. But I can’t comment about how I would extend the boundaries because that would violate the judicial canon of ethics.
Does that protection extend to the property lines in terms of protecting people from arrest when they come to the courthouse for some legal procedure or just to the doors of this building?
That’s a good question.
Q36: Do judges have an obligation to assist in preventing deportation of non-citizens when possible, in the interest of keeping families together, by weighing the consequences of various charges?
Martin Zaehringer: A judge cannot be an advocate. As an attorney representing many non-citizen clients, it is always on my mind. What may be a perfectly acceptable disposition in a criminal matter might be disastrous for immigration purposes. Since the Unite States Supreme Court came down with its ruling in Padilla vs. Kentucky, a defendant must be made aware that a guilty plea could have a negative effect upon his immigration status and defense attorneys are commanded to fully inform their clients of the consequences of their guilty plea upon all legal matters, not just the criminal case. But to “assist” in preventing deportation would make the judge an advocate, and that is not the judge’s role.
Catherine Voelker: That’s a Canon 5 question.
Q37: Would you have an obligation to offer programs such as special diversion for defendants who may be young or charged with issues stemming from cultural differences where they didn’t understand that something that they normally do was wrong in America? (References on cultural differences affecting crime here, here,here, )
Martin Zaehringer: (I assume we’re talking criminal law here.) I personally feel that the more alternatives there are to prosecution, the better the system is for the populace. It such programs exist, it would be wrong for the court not to offer such programs. A courtroom is not a fiefdom; the Legislature in its collective wisdom, may create such programs. It is not the court’s role to deny a party access to them.
Catherine Voelker: That is something I think that would be case specific, and judges consider the facts of each case in consideration of whatever lawful options are available in terms of determining an appropriate sentence. I mean, if that’s a program that is available and is an option that a judge can avail themselves of, if it’s appropriate, I would hope that the judge would at least consider all options. They should consider all programs that are available and not refuse to consider it if it’s a lawful sentencing option.
Q38: CA Penal Code 1016.2 and 1016.3 requires that prosecutors consider the avoidance of immigration consequences during the plea bargaining process. Would you actively encourage that, in cases where DACA recipients are charged with DUIs (VC§§ 23152 and 23153), that Cal. VC § 23103.5 (“wet reckless”) be considered to maintain their DACA eligibility? (See explanation of this legal issue here.)
Martin Zaehringer: The District Attorney of Ventura County does not offer “wet reckless” as an alternative plea to a DUI charge. DACA recipients will lose their privilege to DACA relief if they have been convicted of a DUI, as the USCIS has deemed a drunk driving conviction a “serious misdemeanor.”
Catherine Voelker: That would be a Canon 5 question. That’s commenting on a specific sentencing scenario.
Q39: Do judges have an obligation to increase opportunities to erase immigration consequences of old convictions?
Martin Zaehringer: Judges have an obligation to rule justly on matters brought before them. If avenues exist for a person to erase immigration consequences of old convictions, absent some compelling reason not to, I could argue that to deny that request is a form of improper advocacy by the court.
Catherine Voelker: I think that’s probably going to be a Canon 5 question. But when cases return to court under those circumstances, regarding whether or not somebody was advised of their immigration rights, judges have an obligation to follow the law and make the appropriate rulings. But judges can’t go out and proactively solicit for the return of cases to court for further proceedings. But they have to follow the law when it is brought to their attention.
Q40: Do judges have an obligation to actively grant relief in Penal Code 1473.7 situations where a person facing deportation is allowed to vacate convictions if the attorney representing the then defendant failed to warn the defendant that such adverse consequences from their plea bargain?
Martin Zaehringer: The United States Supreme Court was very clear on this issue in Padilla vs. Kentucky. The burden is upon the defendant to prove that the error prejudiced her, but if that burden has been met, then relief should be granted. Understand however, that granting such a motion does not result in a dismissal.
Catherine Voelker: That’s the immigration consequences situation that we just talked about, where, if an individual who pleaded guilty to an offense was not properly advised of the immigration consequences, they could go back to court and seek to have that undone. I am aware of cases where that’s happened.
We understand judges can issue a standard warning in court to the defendant that the conviction under their current case could lead to repercussions for their immigration status.
And that’s something that typically, if there is a plea in a criminal case, the district attorney will advise everybody uniformly on the consequences, both direct and indirect, of their plea in court. You know, whether it’s you’re never allowed to possess firearms or you could be deported and denied naturalization as a result of this offense. Certain advisements are made by the district attorney to make sure the defendant was aware of the consequences before proceeding to enter a guilty plea.
So that is one of that foundational pieces of information that they would get?
Oh, yes. It’s provided to them in writing. On what’s called a plea form. And it’s something that is given to an individual anytime they wish to plead guilty. This is a form that they go over with their attorney. And it is also something we verbally communicate with that individual, in court, on the record, so that there is no misunderstanding as to what their rights are, that they may be giving up the right to own firearms, for example, whether or not they’re going to have to register as an arsonist, sex offender, gang member, things of that nature, because consequences to a guilty plea can be both direct and indirect, above and beyond just incarceration. There could be long term consequences to somebody’s decision to plead guilty to an offense. And you want to make sure that they are making a knowing, intelligent waiver and that they’re not just getting railroaded during this process. So that’s why it’s provided in writing as well as verbally.
And then if needed, the judge will also say, “Are you sure you understand that this is one of the consequences of your plea here today?” And if there’s anything the D.A. overlooked, they can go over that form with the person as well, to make sure that they’re making a knowing and intelligent decision
The following are additional comments between us and Catherine Voelker.
(To Ms. Voelker) So at this point, you’re thinking, “Oh, my God, this is the longest interview in the world!” However, in researching your record, we’ve found two articles from 2011 that were very concerning to us, especially when combined with some of your endorsements. One was about a “honey badger” email incident about holding trial competitions and one was about the reliability of breathalyzers. Do you have any explanation that you’d like to make?
Catherine Voelker: So the breathalyzer equipment – that was equipment from the crime lab that for whatever reason, wasn’t working properly, so they took them out of service, had the equipment reissued after correcting the malfunction. Cases were dismissed in our office as a result of that. If there was independent corroboration, such as a blood draw, where there was independent confirmation of a person’s blood alcohol concentration, then those cases proceeded, because there was other evidence to support those charges. But I know many cases were dismissed as a result because there was insufficient evidence to prove the charges beyond a reasonable doubt.
As far as the email that went out. I know exactly which email you’re talking about. I was the supervisor of the misdemeanor unit at that time. Earlier we had spoken earlier about extremely high case loads, both in the public defender’s office and the district attorney’s office. This was about ten years ago – I had crafted an email that was meant to be funny and tap into pop culture. You know, we’re dealing with a group of young attorneys who are extremely overworked with insane case loads. Well over one hundred each. And I tried to be funny, tap into this pop culture viral honey badger meme – you can find the honey badger videos with a YouTube search; it was very popular a decade ago, but maybe not so much now. So I was trying to motivate people and encourage them to stay strong, stay tough, even though the road seems uphill sometimes in terms of workload and stress levels and it’s challenging. Well, the email fell horribly flat and it was disseminated above and beyond its intended target audience. And when taken in a vacuum, by itself in isolation, it reads horribly. It does. And I will acknowledge that. And I can understand how if that’s the only thing people had to look at, they would certainly come to a wrong opinion about me. But anybody who’s known me throughout the past 15 years, my career here, knows that I would never traverse the rights of somebody accused of an offence for the sake of a stat. That is wrong. It’s appalling to think that. And I am embarrassed that my email led people to think that that would happen, that I would be supporting that, that I would engage in a game to just get some stats, when that’s not justice at all.
I know that the intended recipients of that email had undergone extensive training, as we all do as new DAs. They understood our ethical obligations to only file and go forward on charges that we could prove beyond a reasonable doubt. You never go to trial on something you cannot prove beyond a reasonable doubt. And there was also a policy in place at that time that no case could go to trial unless it was vetted through the supervisor to be sure that it could be proven beyond a reasonable doubt, and that the facts were supported by the law. And if it wasn’t, then the case would be dismissed. And I, in that role as a supervisor, dismissed many cases that could not be proven beyond a reasonable doubt. But the fact of the matter is, I am not funny. I tried to be funny. It didn’t work. And I embarrassed my office in the process. And some members of the community were left with this horrible impression. And it’s something I would love to take back. But some of the best lessons we learn, we have to learn the really, really hard way. And that is to always be mindful of long term consequences of things. Our actions, behaviors, and words can have far reaching and unintended consequences. And that’s a lesson I learned the hard way.
You know, before I even began this process of pursuing a judgeship, I spoke to one of my colleagues in the public defender’s office. Before beginning this election, I had put in my judicial application with Governor Newsom. But before I even did that, I reached out to her because I trust her and her candor. And I wanted to know what my reputation was in the legal community. Because if people think that I am some overaggressive freewheeling prosecutor, then I’ve got no place on the bench. People wouldn’t have trust or faith or confidence in a judge like that. So I asked her to be frank with me and please tell me what is what is my reputation. You know, so that I can honestly proceed or not, because I want people to have faith in me and know that I will follow the law. And then I’m going to take care and be mindful of everybody’s rights.” And she said, it’s been a decade since that email, your reputation is a good one. It’s positive. You’re a person of solid character and integrity. And the integrity aspect is one of the things that became part of my campaign – experience and integrity is what we want in our judges. If I was not in good standing with the defense bar, then I knew I wasn’t going forward in this process. For me, it was important that I have the trust, faith and confidence of everybody, not just prosecutors and law enforcement, but public defenders, too. And her honesty, her candor, meant a lot to me. And I appreciated that. And I’m also grateful you’ve given me this opportunity to share that, because it’s been so long. It’s been 10 years.
But the Internet never forgets.
Yeah, that’s true. And if questions do come up about that, my gosh, I want people to know what I am and what I stand for. And that I’m not just somebody who’s just going to steamroll over the rights of an individual. That was a horrible misimpression left on the Internet forever that I’m thankful to you for giving me an opportunity to talk about it in context.
Ventura County Bar Association Candidate Ratings
The full report is linked here: 2020 JUDICIAL CANDIDATES RATINGS.
|Office No. 2||G. Martin Zaehringer,||Catherine Voelker|
|Overall Rating||Exceptionally Well Qualified for office||Well Qualified|
|Professional Experience||Outstanding||Very Good|
|Judicial Temperament||Outstanding||Very Good|
|Professional Reputation||Outstanding||Very Good|
|Work Ethic/Resource Management.||Outstanding||Outstanding|
This is for the other race. The results are clear.
|Office No. 8||Paul W. Baelly||Steve Pell|
|Overall Rating||Well Qualified||Not Qualified|
|Professional Ability||Very Good||Unsatisfactory|
|Professional Experience||Very Good||Satisfactory|
|Work Ethic/Resource Management.||Very Good||Unsatisfactory|
Originally posted on Indivisible Ventura. Re-posted with permission.
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