“We want to think of the law as kind of interchangeable and they just apply the law to the facts, but that’s not what all judges are doing,” said Northwestern University Law professor Laura Beth Nielsen, who conducted the research.
In another Cornell Law School study of implicit bias among trial court judges, researchers presented several hypothetical cases and found that judges, like most people, have implicit biases that can affect their judgement. The study also found that judges can suppress those unconscious biases.
What may be research fodder for academics is palpable for attorneys, plaintiffs and defendants when they walk into a courtroom.
“It is…intimidating. It is infuriating. It is not shocking,” said Felicia Espinosa, describing what it feels like to be the only Latina attorney in court. She works in Fresno, where she’s one of roughly 2,200 attorneys in the county for a population of nearly 1 million, according to data from the California State Bar.
“I’m both dealing with my own internal feelings and thinking about my client and how it impacts them,” said Espinosa, advocacy director for Roots and Rebound, which offers legal aid for people who were once in jail or prison.
Along the hour drive from Sacramento to Colusa, rows of nut trees and farmland line Lone Star Road leading into town. Dotted with rice fields, almond trees and small farmworker communities, this small county grows about $1 billion worth of food a year.
The town’s square has the feel of an old Western town with a touch of the plantation. That’s not an exaggeration: The towering courthouse, built in 1861, reflects the county’s heritage from the “ANTE-BELLUM SOUTH AND STATES RIGHTS SYMPATHIES DURING THE CIVIL WAR,” according to a plaque added to the building in 1976. It stood in for a Deep South courthouse in the 1962 classic film “To Kill a Mockingbird.”
Every week hundreds of people file into the courthouse for traffic court, land titles and the like. A couple of blocks away, outfitted with metal detectors and x-ray machines, the Annex is where many criminal cases are heard.
From morning to afternoon in these COVID-affected days, dozens of mask-wearing litigants and their supporters wait in small wooden chairs, distanced by more chairs and plastic partitions, for their chance to address the court.
Case by case, individuals rise to speak. Often their eyes dart around, looking for the court interpreter who dashes over to translate the legal jargon into Spanish.
“¿Podría repetir la pregunta? No entiendo lo que quieres decir,” one defendant implores the judge through interpreter Juanita Ulloa — asking if a question could be repeated because he didn’t understand it.
Just beyond Ulloa, photos hang along the wall, marking a time in history when the bench was filled with white men. Things have changed a little since then. Colusa County welcomed its first woman judge in 2010, an appointment by then-Gov. Arnold Schwarzenegger. But the bench has not caught up to the county’s demographics.
“I’ve always noticed that there were always white judges, white lawyers,” said Jessica Lopez, 32, of Williams, at the Colusa Annex to fight what she termed “a few” pending cases.
Of course it’s impossible to diversify the bench unless there are qualified Latino attorneys in these areas willing to trade in their briefcases for gavels.
In a state where Latinos make up 40% of the population — outnumbering all other groups — only 7% of California’s practicing attorneys are Latino.
Beyond its metropolitan areas, large swaths of California have too few attorneys to represent their population size. This has fueled attorney deserts where clients and attorneys have to travel miles and miles for meetings and court proceedings.
The State Bar Association data doesn’t break down the number of practicing attorneys in an area by race or ethnicity, making it impossible to pinpoint gaps where lawyers of color — and thus potential judges — are in short supply. Several Latino attorneys would not speak to CalMatters on-the-record because they’re only “a few of us,” said one Latino attorney who often appears in several different counties.
“That’s obviously a problem,” said Pruitt, the UC Davis law professor. “It is probably related to the fact that there’s a deficit of attorneys and probably a deficit of Latinx attorneys in those areas. A lot of law students are just not interested in going and working in rural California.”
It’s around noon when criminal defense attorney Roberto Marquez parks and heads inside a Colusa courtroom, positioning himself in the back and pacing back and forth between his client and the prosecutor.
As soon as he finishes addressing the court on behalf of his client, Marquez grabs his things and heads out the door — on to his next stop.
“Today, I’m in Colusa County, this morning I was in Yuba, and tomorrow, I’ll be who knows where,” Marquez explains later, his cell phone connection sputtering as he travels the rural roads to his next meeting. For more than 30 years, he has traveled as north as Butte County and as south as Sacramento County defending clients. He says he used to think about becoming a judge, but that now is a distant memory and he no longer feels a desire for judicial robes, having grown to love traveling a wide territory as a criminal defense attorney.
He’s also not convinced more Latino judges would affect his cases.
“I don’t need (judges) to be Hispanic, white, Brown, Black or whatever,” said Marquez. “I just need them to be smart and follow the law, and I feel like I practice in front of some smart, fair-minded judges.”
Most Superior Court judges first get the job because the governor appoints them after a sitting judge retires. The requirements: have at least 10 years’ experience practicing law, and submit a formal application.
Last year, 14% of state judicial candidates applicants were Latino. Deciding to leave practicing for judging is a difficult decision that can take a decade’s worth of planning, and some worry about a lack of Latino attorneys to back-fill them if they become judges.
For decades, judicial applicants had to know someone who knew someone to pitch themselves to regional Judicial Selection Advisory Committees, all composed of local attorneys and judges. These committees, the conduit to the governor’s office, have the power to make or break a judicial appointment.
The committee members were secret under former governors Arnold Schwarzenegger and Jerry Brown.
“It was an obstacle course,” said Judge Juan Ulloa, a judge in Imperial County, who once applied for a judicial appointment. “It was very political, very secret. People were able to make anonymous comments.”