The Forgotten Years

Edward R. Jagels Weighs In On Book About Jerry’s Judges

Posted on | September 21, 2010 | 257 Comments

POST UPDATE:  The book is now available through Amazon.

By 1981, Governor Jerry Brown’s appointments to the State Supreme and appellate courts had changed the azimuth of California criminal law and procedure. As this book demonstrates, his appointees, some personally strange or venal and some merely dedicated ideologues, transformed the State’s criminal jurisprudence into something which lawyers in the rest of the nation found almost incomprehensible.

I well remember during that time attending a National District Attorneys Association narcotics conference in Kansas City for prosecutors from throughout the nation. During the group discussions, I would occasionally explain some aspect of judicially created law or procedure imposed by Brown’s judges. My colleagues were shocked, fascinated, and aghast. By the end of the conference, whenever the moment called for some comic relief, they would ask me to “tell a California story!”

While I was happy to amuse my prosecutorial colleagues, it really wasn’t a laughing matter. It seemed that each week a new blockbuster decision would come down from Brown’s judges, depriving the police or the prosecution of a tool they had previously been able to utilize. Evidence admissible in any other court in the country became inadmissible in California. Police techniques or activities perfectly legal in the rest of the nation were held to be illegal in our state. Rules of criminal procedure which attempted to balance the defendant’s rights with those of victims, witnesses and jurors were struck down, all to the benefit of criminals. Thousands upon thousands of serious cases went unsolved or unprosecuted in California. As a result, thousands of people who otherwise would have been protected by the criminal justice system became future victims.

Although the death penalty was not the most important aspect of the Jerry Brown judicial revolution, it was the thing that got the most public attention. Nothing better illustrated the result-oriented fanaticism of Brown’s judges than his Supreme Court appointees’ determination to abolish the death penalty, in fact if not in law. In case after case, Brown’s majority on the Supreme Court combed through the record, discovering reversible error where it did not exist. Perhaps the most notorious vehicle adopted by the Court to insure wholesale reversal of death penalty sentences was its invention of an “intent to kill” requirement in felony murder cases. That is, Brown’s judges ruled that the prosecution was required to prove that a particular defendant intended to kill the victim during the commission of an inherently dangerous felony such as robbery, rape or residential burglary. Obviously, death penalty juries had not been instructed on this “intent to kill” requirement, since it was found nowhere in the statute. Brown’s justices simply invented it out of whole cloth so they would have a rationale for reversing the death sentences.

The Attorney General attempted to save some of these convictions by arguing that in many cases the evidence of intent to kill was so overwhelming that any “error” was harmless, and therefore that the convictions and sentences should be affirmed. Not so, opined Chief Justice Rose Bird, Brown’s most notorious appointee. Even in the case of a Brinks guard shot by the defendant five times in the chest at point blank range, she speculated that perhaps the defendant shot “with the intent to wound the guard – so he would release the money bag.” (People v. Fuentes [1985] 40 Cal. 3d 269).

The damage done to the criminal justice system by Jerry Brown’s judges received enormous attention and culminated in 1986 with the unprecedented election defeat of three of his Supreme Court appointees, Bird, Joseph Grodin, and Cruz Reynoso.

But while the public’s attention was focused on the Brown judges’ anti-public safety crusade, equal damage was being done on the civil side. Governor Brown’s judicial appointees never saw a property right that couldn’t be compromised, a government act that infringed on a citizen’s freedom (unless that act was perpetrated by the police), or a company or corporation that couldn’t be held liable for unlimited punitive damages. The harm to California’s economy created by the Brown judicial system’s anti-business bias far outlasted the Governor’s term in office.

Recently I asked Jerry Brown, now the Attorney General, what sort of judges he would appoint were he to be elected Governor again. He replied that he probably wouldn’t appoint judges of the sort he had chosen the first time around, but that “they won’t be judges that you’ll like either.” Fair enough. It is not a Governor’s job to appoint judges whom prosecutors like, but given Jerry Brown’s history of judicial appointments, as discussed in this volume, it behooves every Californian to make a serious study of his legal philosophy.

Edward R. Jagels
Kern County District Attorney
September 10, 2010


257 Responses to “Edward R. Jagels Weighs In On Book About Jerry’s Judges”

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