Tuesday, March 16, 2010
A California judge has a tough haul for re-election after his decision refusing to grant a protective order ends in tragedy.
The judge didn't believe the father was a threat and denied the mother's plea to keep him away from their 9-month-old son. It was a seemingly routine ruling in a busy family law court called on too often to referee passionate fights between broken young families over the care of babies.
"My suspicion is that you're lying," Judge Robert Lemkau told Katie Tagle, 23.
Ten days later, her 25-year-old ex-boyfriend Stephen Garcia shot and killed their baby son and himself and the case was routine no more. A public frenzy ensued.
"His treatment of Katie was horrific," said James Hosking, a local prosecutor challenging the judge. "Judge Lemkau's ruling in the Tagle case was indefensible."
In particular, Hosking said Lemkau may have violated judicial ethics requiring judges to treat litigants with respect when he said he suspected Tagle was lying.
Hosking said he would have ruled in favor of Tagle until it could be determined which parent was telling the truth.
Lemkau, in his first interview since the controversy erupted, told The Associated Press he regretted calling Tagle a liar and was "crushed" as a father and grandfather by the murder-suicide. He said he couldn't sleep for a week after hearing the news.
"The worst nightmare of a judge," he said, "is to deny a restraining order and there are catastrophic results."
Nonetheless, he stands by his decision "based on the evidence before me" and argues further that a contrary ruling that day wouldn't have stopped Garcia.
"Everyone lies in family law court," said divorce lawyer Guy Herreman, who has appeared before Lemkau and respects the jurist as fair. "That's just the facts of life."
At the heart of Lemkau's ruling are two e-mails sent by "John Hancock" and labeled "Necessary Evil" that told a long, rambling story of a father who killed himself and his 9-month-old son after his ex-girlfriend failed to reconcile with him. Tagle told the judge Garcia sent the e-mails and meant to carry out the plan. Garcia denied it.
Amid the he-said, she-said argument before him, Lemkau decided Garcia could retain partial custody of his son - especially since another judge on Jan. 12 found that Garcia wasn't a threat.
"All I had were the e-mails," Lemkau said. "The source of the e-mails was indeterminate."
Tagle last saw her baby on Jan. 28 when she handed him over to Garcia in a Victorville parking lot.
The case has sparked renewed scholarly debate about the propriety of electing judges.
It's precisely these public uproars over unpopular decisions that opponents of electing judges in contested races argue are unfair.
Retired U.S. Supreme Court Justice Sandra Day O'Connor and others are campaigning to change the selection-process in the states that elect judges, arguing that campaign donors are often lawyers who appear routinely before the candidate-judges. They also say judges should be free to make unpopular decisions without having to worry about ballot box repercussions.
"If the judge followed the law, it is simply wrong to punish him for that," said Northwestern University law professor Stephen Presser, a leading scholar on electing judges. "When you start electing judges, they start playing to public sympathies."
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