JoAnne McCracken

, The Recorder

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COURT: Santa Clara County Superior

ASSIGNMENT: Drug court

ELECTED: June 2010; appointed by Governor Arnold Schwarzenegger later that year

LAW SCHOOL: Santa Clara University School of Law

PREVIOUS EMPLOYMENT: Santa Clara County district attorney's office (1989 to 2010)

AGE: 51

PLACE OF BIRTH: Oakland

POLITICAL AFFILIATION: Democrat

CLE: Character evidence

Q: What do you enjoy most about being a judge?

A: That answer might vary depending on the position that I had at the time, but overall it's a great job, and there are a lot of things about it that are enjoyable. It's intellectually challenging, the cases that you get — the subject matter is interesting. What I love about being a drug court judge, which is where I am assigned now, is I really feel like you have an opportunity to help people — some of them aren't interested in making changes in their life, but many of them want to make big changes in their lives, and they just don't have the tools to do that. If they're able to effect the changes, it's enormous — the consequences, the benefits to them. If they can accomplish these changes, if you can participate in that in any way and help them, they suddenly have a whole new life ahead of them. Those success stories, people who come in and they've accomplished sobriety or become clean after years of being a drug addict — it's so heartwarming. Nothing feels better than that. So that is something that is very enjoyable about it. I enjoy many, many aspects about being a judge.

Q: Looking ahead to other assignments you'll ultimately have, what do you look forward to?

A: I enjoy the law, I enjoy the intellectual part of it, I enjoy interacting with attorneys. I like the trial process and the trials I've conducted, whether they've been felonies or misdemeanors, it's always something that's fun to rule on those issues and make decisions about cases. I really like all of it.

Q: What is it that you like the least about being a judge?

A: People warned me beforehand that this is an isolating position — you're isolated as a judge. I thought, 'Well, I'm outgoing, I'm friendly, I'm sure I won't have that same experience.' But it truly is something that is different, because you can't interact with attorneys in the same way as you could when you were a lawyer yourself. You're over here by yourself, and you don't have as much opportunity as you did when you were in a big office to walk down the hall and chat with someone if you wanted to. It's just not the same. That's one aspect of it that I don't like as much as being a lawyer. But the collegiality among the bench is wonderful, and my colleagues are wonderful.

Q: I imagine that isolation is particularly tough when you've spent your whole career here and you know a lot of the people here — how do you handle that?

A: I'm still friendly with people, and I still have good relationships with people. It's just not quite the same, you can't interact with people in quite the same way as you could before, because you don't want to make either side feel uncomfortable, so just have to take a step back. That's the way that it is, and you just have your other friendships that you spend your time with.

Q: Do you have any standing orders that attorneys coming into your court should know about?

A: No. Most people know the general things that apply — be courteous to each other, that type of thing. If I'm going to do a jury trial, then I discuss in advance with the parties [that] I prefer that you mark exhibits on the record rather than pre-marking them, things like that. We discuss those in advance.

Q: Do you impose time limits on attorneys during trials?

A: During jury trials, I suggest to the attorneys that the voir dire that they do — because the court's voir dire is so thorough — I generally suggest about 20 minutes, and I ask the attorneys if that time frame seems appropriate to them. In every case they've said yes, it does. I tell the lawyers that sometimes it happens, and I know this from when I was a lawyer, that one particular potential juror will occupy your time by telling you some big story, or use an inordinate amount of the 20 minutes, and you don't want to interrupt the person and seem impolite if you're the lawyer. So I tell the attorneys if you find the 20 minutes isn't enough, just approach the bench and let me know that you need a little bit more time. Whatever time I give to that side, I give the same amount to the other side. I don't impose time limits on closing argument or anything like that, and I haven't found any reason to do that. One of the ways I pick a jury is I use a very large additional pack, instead of a six-pack or a 12-pack, I use as much as we possibly can. I find the lawyers like that because it makes the jury selection more efficient. Even with a large additional pack, the attorneys manage to get all of their questions done in 20 minutes, so that's great.

Q: Do you decide motions based solely on briefs, or do you prefer that attorneys argue them?

A: I do prefer attorneys argue them. That was one of the things that was interesting to me when I became a judge. As an attorney you prepare your brief and you come in and argue it, and you couldn't tell because the judge was usually stoney-faced — "Am I getting anywhere with the argument, is he or she seeing my point of view?" But I have found as a judge, oral argument is really something that's a useful tool, because it can highlight something that was in the papers that you read — it can give it new significance or special significance when the attorneys are arguing it. So I find it very helpful. One of the things that I've found with some new attorneys with oral argument is they sometimes go really fast, because they feel like, "Oh, the judge has read my papers, this is kind of the fluff part of it that, I sort of need to go through the motions of making an oral argument." And they race through their arguments not allowing the listener, in other words the judge, to digest what they're saying. So I find sometimes I tell attorneys, "Slow down, I want to take that point in." Or if I talk to attorneys afterwards, after the case is over, I might suggest to them, "Go a little slower in your arguments, it helps the judge."

Q: How do you handle it if an attorney becomes hostile during an argument?

A: If anyone conducts themselves inappropriately, I point that out. It depends on the circumstances. If someone is becoming inappropriate and there is a client there or a jury there, I want to take steps not to cause them any embarrassment in front of their client or in front of the jury. Generally, I'll ask them to approach the bench and make a suggestion to them that their tone of voice is disrespectful, or your tone of voice is not appropriate toward your opponent, or whatever it is, if I can.

Q: How has technology impacted jury trials?

A: It's really different now from when I first started practicing law. Back in that day, we would have big pieces of butcher paper, and we'd use heavy felt pens and write all our charts and come in with these handwritten charts. Eventually, there was a chart maker where you could type it up on an old-fashioned word processor — people didn't even really use computers back then — type up this chart and then blow it up on the chart maker, and that was considered really fancy when you had this. I watch what lawyers do now, and it's incredible to me — they have PowerPoint presentations that are effective, and that have excerpts of the 911 call embedded in the PowerPoint that they play at the appropriate point. All of the exhibits are put up in plain view by the projector for the jury to see. It makes it a much more effective way to present the evidence than back in the day when we were holding up a little Polaroid picture in front of the jury and walking back and front of each of the 12 jurors holding up this small photo. That part is nice. The downside of that is jurors have come to expect that, because they see it on television, they know that that's something that's done. So when you see an attorney who attempts to present some evidence and brings a little 8 1/2 by 11 photograph, and they're asking the witness, "Put an x where you were first standing, now put a y where you moved to," and no one can see what they're doing; I can't see it, jurors can't see it — it's a completely ineffective way to present the evidence. Later on, in closing argument, where they're saying, "See this x here, that was where this was happening," the jury has forgotten the testimony. So I think it's just yet another way that receiving evidence by jurors has improved because of technology.

Q: Do you think there is any disparity in the amount of money you have to spend — has technology worsened the playing field, made it more uneven in terms of if you don't have as much money to defend yourself, you can't use technology as well?

A: I haven't seen that. I would see self-represented litigants when I was conducting jury trials in south county. The well-prepared litigant would come in on an unlawful detainer trial, for example, and they'd come in with their photographs — there was no high-tech there, they were just giving me photos and examples of what happened, and their statements and so forth. There was one trier of fact, so it was a completely effective way of presenting the evidence, so I didn't see any disadvantage there. When you look at the cases now, whether you're an indigent defendant or the people, both sides are using the technology, it's the same. So I haven't seen how it decreases access to the criminal justice system or anything like that.

Q: In your experience, how can attorneys help the court promote settlement of a dispute?

A: Well, I think that it's important to have an open mind when you're discussing a case with the judge and the judge is giving you an assessment about the strengths and weaknesses of your case, and the judge is trying to facilitate whatever a settlement might be. Keep an open mind. I understand that people don't want to show their hand to the other side, and so that's fine, you can reserve what your closing argument's going to be. But at least keep an open mind about what one side or the other is saying about the evidence. I have found that attorneys for the most part are very reasonable in approaching settlement, and sometimes it's just a case where there's just no option. Most of the cases that seem to go to trial, there is just no option — for example, a direct consequence of the conviction to the defendant is going to be so significant that the defendant says, "Well, there's nothing I can do to settle the case, I just have to take it to trial and take my chances because whatever this consequence is going to be is too significant for some other reason." Or the DA says, given what the case and the strength of the evidence, there's nothing I can do, it's kind of an open-and-shut case, and the defendant wants something less than I'm offering and that's just the way it is. It's fairly easy to ferret out those cases that are going to settle versus the ones that are not going to. You spend a little time with the lawyers, maybe 10 minutes, and it's clear — this is a case that can settle. Sometimes that's the case that takes a little while to talk with the attorneys, and then they go and talk to the parties and then they come back in — it might take a little while, but you can see this is a case that will probably settle. Other cases you see it's a case that there's not much of a possibility, we might as well try it.

Q: What advice do you have to offer new attorneys?

A: I would say for new attorneys, one of the most important things to do is to really be prepared, and to just put a lot of thought into the approach you're going to take in the case, the position you're going to take. One of the things I've found, it's unfortunate what happens, but a new lawyer will make a fairly significant mistake, or will take a position that they would not have taken if they had more experience. And it's simply because they were on the spot and they have to answer a question, something's been put to them by the other side, or the court might ask them a question, and they're on the spot, and instead of saying what they could say, "Your honor, can we take a recess," or "I'd like to consider that," if you're not prepared to move forward on a particular issue. Instead they'll take a particular position just really out of — "I have to answer this, I have to do something now" — and not really know the area they're treading into. I have had attorneys say later, "When I did this or that on a case, I had no idea, I had never heard of that before." Yet they made the decision because they were new. When you think about the practice of criminal law, there is so much jargon we use, there are so many things that if you're a newcomer without much experience, it's hard to handle all of that and know what to do. Be as prepared as you possibly can on any case.

Q: Do you see any kinds of things that young lawyers coming out of law schools these days have in common in terms of their preparation, anything that law schools have maybe dropped the ball on compared to when you came out of law school and were starting out?

A: I am actually really impressed with the quality of advocacy that I see with new lawyers. During the summer and also the fall semester, we had a lot of certified law clerks that would come in and either conduct prelims or motions to suppress evidence, or whatever they had in front of me, with a supervising lawyer, and I listened to some of the advocacy by some of these — they're not even lawyers yet — and I thought, "Wow, you're doing a great job." It's really just the standard advice when you're a new lawyer, make sure you know what you're talking about, don't be afraid to admit that there is something you're unfamiliar with. Simply say, "Oh, your honor, I'm not familiar with that penal code section," or "I'm not familiar with this question the court's asked," and ask for some time to look into it or may I brief the court, whatever it is. Be really precise in your legal research. Make sure that when you include a case that it's good law, and there is not any other case that would prohibit your citing that case. And in your advocacy make sure you've thought about these issues. You just can't come in and wing it in court when you're new. If anyone's going to wing it, you've got to have a lot of years of experience under your belt.

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