Wednesday, May 11, 2016

Retiring Judge Elden S. Fox Supports David Berger for Judge of the Superior Court


Judge Elden S. Fox and I go back a long time. All the way back to April 1998 when I first appeared in his Beverly Hills courtroom as a Grade I Deputy DA. I served 9 months in his courtroom and learnt more about the solemn duties of a prosecutor in that time, than in all the years I spent in law school. I was lucky to be allowed to try a few cases in his courtroom, including the memorable 8 defendant case of the ‘Fur Free Friday’ protestors of Rodeo Drive and the ‘Vampire of the House of Blues.’

I say “a few cases” because the vast majority of cases would end up with a plea rather than a trial. Oftentimes that was because Judge Fox would undercut my offers and take an open plea - much to the chagrin of my supervisors! Judge Fox does an excellent job of taking a plea. He does it thoroughly, but manages to do it in such a way that it’s almost like he’s having a conversation with the defendant as he explains the rights that must given up before saying “Guilty’ or ‘No Contest.’ Even the most poorly educated defendant understands what’s going on, and it’s a testament to the way Judge Fox shows his respect for all those appearing before him.

Judge Fox always makes a point of surprising you with something from left field, just to make sure you’re on your toes. The one that sticks in my mind, was on the last day of my 9 month assignment when I settled a case and was expecting Judge Fox to commence taking the plea. “Mr. Berger,” he said “you may take the plea.” Never in 9 months had I done that, nor had I seen any other DDA be allowed to do that in his court. As I struggled with a script to do clumsily what he did so gracefully, I could see a wry smile on his face. His way of saying “So you think it’s so easy?”

I left Beverly Hills in 1999, but over the years I returned there when assigned to special units. It was always a pleasure to see Judge Fox and catch up on news. In 2011 I was transferred back to Beverly Hills and was assigned to Judge Fox’s courtroom. Some things had changed - we were handling felonies not misdemeanors, but some things hadn’t changed; Judge Fox still treated all before him with courtesy and respect, and he still undercut my offers!

In 2013 budget cuts forced the closure of the Beverly Hills Courthouse for criminal cases, and we all packed up and moved to the Airport Courthouse. I think it must have been a very hard time for Judge Fox as he had spent so much of his working life in the Beverly Hills Courthouse - first as the Deputy In Charge of the DA’s Office on the 4th floor, and then as a judge on the second floor when he was appointed to the bench in 1991.

It must have been around the time that we all settled into our new ‘home’ at the Airport Courthouse that I sensed that Judge Fox might be considering hanging up his robes. It was also around that time that I realized the thing I most wanted to do with my career was to become a judge; not just any judge, but one as excellent and respected as Judge Fox. Wanting to become a judge is one thing, however, actually being able to do it is another. I spoke to Judge Fox about my ambitions, and to my relief he was enormously supportive. He also told me that he had been thinking of retiring but, would delay his decision until the 2016 election so that I could run for his seat if he decided to retire.

In the past five I have appeared in Judge Fox’s courtroom on a daily basis. He’s seen the way I present preliminary hearings, conduct jury trials, court trials, probation violation hearings and argue motions. Over the years I learned from him how to fairly evaluate a case - assess its strengths and weaknesses, assess the defendant’s criminal history and chances at rehabilitation, and then formulate an offer that is both fair and equitable to both sides. What has become interesting is the way that our offers have become so alike. It’s something that often surprises defense attorneys - that the DA’s offer is more or less the same as the judge’s. In learning so much from him I would like to think that I have demonstrated that I was the right candidate to continue his legacy of being respectful to all, knowledgable in the law, widely experienced, scrupulously fair, fiercely independent, and beholden to none.

And so it was, on Friday afternoon, March 11, 2016, that we both made our way to the County Registrar’s Office in Norwalk. I would file my nominating papers to run for his seat, he would not file his, thereby formally announcing his retirement. There was a torrential downpour as we navigated the 18 miles from the Airport to Norwalk, and the traffic was so bad that at one point it looked like we might not get there in time for the 5pm deadline. How ironic that would have been. Nevertheless, we made it in the nick of time. The drama of the drive perhaps masked the solemnity of the moment; for me perhaps embarking on a new career, for him, signaling the end of his. I cannot tell you how deeply grateful I was to have Judge Fox at my side as I completed the paperwork and formalized the next phase in this long process. It is a credit to his loyalty that even though he was extremely jet-lagged, having only days earlier returned from a long vacation in Asia, he was willing to give up precious hours when he could be resting, to stand by me.

Any hope that waiting until the last moment to file papers might deter other candidates from running for Judge Fox’s seat soon vaporized and it now seems that I’m in a formidable five-way race. It won’t be easy and it’s very likely that this race will go all the way to a runoff election in November between the top two vote-getters in June. I am confident, however, that with your support I will make it to the runoff where I will win.

In concluding this long post, I hope it’s obvious to you that I owe a deep debt of gratitude to Judge Fox for hopefully being the book-ends of my career at the DA’s Office, for being such a fine example of what it takes to be an excellent judge, and for being so supportive of my candidacy. When you cast your votes in the June 7, 2016 election I hope you will remember reading this, and that when you ask yourself “Who better to continue Judge Fox’s legacy?” you will answer that question with a vote for David Berger for Judge of the Superior Court, Office Number 158.