The Coastal Post - May, 1998

Marin As I See It

The New Kid On The Block

By Sanford I. Gossman

There's a new judge in the courthouse. Another Republican, appointed in October of last year by Pete Wilson. His name is William T. McGivern, Jr. And he is disappointing. This guy is scary, folks.

In February, McGivern, who has little experience practicing California civil law (another 20-plus-year veteran of being a federal prosecutor) was assigned to hear a Small Claims action I filed. But first he heard routine motions in civil cases. A competent judge does the job in 90 minutes or less. It took McGivern six hours! Is it because he is thorough? No, it is because he is dense! I watched in disbelief as various attorneys explained to him why they were there. It often took two, three, four, even five times until McGivern finally started to "get it." Everyone around me in the gallery "got it" way before McGivern did.

Then it was time for my very simple case. I expected it would require under 10 minutes. In May, I was involved in a vehicular incident. In June, the adjuster for the insurance carrier of the other driver sent me a letter in which, without admitting liability, his company agreed to repair my vehicle and provide me with a rental car while it was in the shop. I accepted the proposal, thus giving it the legal status of a contract. But, while the repairs were being made, I was left to find my own alternate transportation. So, I sued the insurance company.

As the law clearly provides, I wanted either performance of the contract or the value of it: $251.30. I read the single sentence on the Small Claims Complaint to Judge McGivern that stated the basis of the suit. McGivern asked seemingly hundreds of questions, many of them repeats. They included asking the adjuster if the insurance policy included a provision to provide a rental car. The adjuster explained that it didn't, but that providing a rental car was the standard practice in the industry as part of settling a liability claim.

Then McGivern asked me questions about my injuries, the cost of my medical care, time lost from work, and loss of income. I asked him why he was asking me about these things. He said because he was "not going to settle the matter piecemeal." I reminded him what the case before him was about, and that, as the plaintiff, it was me who decided what issues were before the court, not him! I told him that if he did not limit his decision to the single issue on the Complaint I was going to dismiss the case and leave. He backed off. Then, after more repetition and 90 minutes of discussion overall, McGivern ruled against me, citing the absence of a rental-car provision in the insurance policy.

With such stellar performance, I am dismayed that McGivern was assigned to replace retired Judge Gary Thomas until a replacement is elected in June. The position put him in charge of the Horace Kelly sanity trial, the high-profile case that is being reported worldwide. The purpose is to have a jury determine if Mr. Kelly is sane enough to be executed. At first, McGivern refused to postpone the execution until the end of the trial, saying that he didn't have the authority. A few days later he changed his mind. As bad, the People have all the money they need to provide expert testimony regarding the mental state of Mr. Kelly. But McGivern refuses to authorize public funds to provide Mr. Kelly's defense team with experts of their own.

On April 15th, I attended the trial for the first time. Because I am hearing-impaired, I arranged for an assistive listening device to be brought to the courtroom. The paperwork allows me to specify where I want the microphone placed, because the law holds that the disabled person determines the details of the accommodation of their disability. I had a copy made and gave it to the judge. The device arrived immediately. Yet, it took McGivern 30 minutes to have the device turned-on and he refused to place the microphone where I had indicated it must be placed to be effective. This violated my civil rights pursuant to the Americans With Disabilities Act of 1990, a federal offense. I protested. He told me to shut up. Then he asked if he was going to hear anything more from me. I told him "Only if you continue to violate my civil rights." He immediately had me ejected from the courtroom.

On the same day, a nice lady brought cookies for the jurors to enjoy. McGivern ordered her out of the courthouse and issued an order that no one could talk to the jurors while they were inside the courthouse. It is my opinion that the order is illegal because it prohibits Constitutionally-protected activity. So, two business days later, I filed a lawsuit against McGivern at the First District Court of Appeal asking to have the order stricken.

It took McGivern three weeks to seat 12 jurors and the alternates. Yet, when the defense team asked for three days to review 150 pages of medical and psychological records about Mr. Kelly that they received several weeks late from the Department of Corrections, McGivern gave them only two days, seemingly not caring if Mr. Kelly had the best possible defense to being executed at the conclusion of the trial.

Judges are supposed to be knowledgeable of the law, conduct their judicial business according to the law, insure that the rights of people in the courtroom are not violated, and be polite to all persons who address the court. It is clear that Judge McGivern either doesn't know about these things or that he simply doesn't care.

On June 2nd Judge McGivern will try to get elected to his appointed position. Fortunately, there is someone running against him. Vote for her, an intelligent, experienced, highly-regarded Democrat. Marin County is all too quickly becoming a police state. We don't need judges like McGivern to hasten the process.

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