Thursday, April 19, 2001
More About a Barb-Spewing Jurist, Charles S. Burnell
By ROGER M. GRACE
Though long forgotten, Charles S. Burnell was a judge of the Los Angeles Superior Court, long in tenure, short of fuse. His oppressiveness and his continual in-court utterance of insults is immortalized in opinions contained in the Official Reports.
Burnell was born Sept. 21, 1874 in Elko, Nevada. His family moved to San Francisco, and Burnell attended schools there. He obtained his bachelor’s degree from Stanford in 1895 and a master’s degree from that university the following year. He was admitted to the bar in January, 1897, practicing first in San Francisco, and then Los Angeles.
W.W. Robinson related in his book, "Lawyers of Los Angeles," published by the Los Angeles County Bar Assn. in 1959, that Burnell, as a lawyer, had drafted a complaint in a divorce case entirely in verse (and won the case). As a judge, he would not have tolerated such shenanigans.
Burnell served as the city attorney of Los Angeles from 1919 until he assumed office (through appointment) as a judge of the Los Angeles Superior Court on Jan. 3, 1921. While serving on that court, he obtained a doctorate in law from Loyola University in 1927. Burnell married in 1936.
His judicial service extended until his death, on June 23, 1949.
Yesterday, I drew attention to some opinions of the appellate courts taking Burnell to task for his injudicious comments. Here follows a discussion of Burnell in some opinions in the 1940s.
Burnell was affirmed in Smith v. Coleman (1941) 46 Cal.App.2d 507, a medical malpractice case tried without a jury. However, the opinion, penned by Justice (later Presiding Justice) Parker Wood, does reflect Burnell’s lack of self restraint. Note that Burnell, a Republican, slipped in some political commentary:
Defendants charge that certain remarks of the trial judge made at the conclusion of the trial show bias and prejudice on his part. These remarks were to the effect that defendants, whom the judge referred to as "butchers and bunglers," were either committing perjury or were suffering from a loss of memory; and that Dr. Cass, an expert witness for defendants, "was doing all he could to cover up his professional brethren." In reference to the firm for which plaintiff was employed the judge said: "If the concern were to fail—and if Roosevelt remains in office much longer everybody will fail—then he may be looking for another job." The action was tried before the court without a jury and it was the duty of the judge to pass upon the credibility of the witnesses and to determine the facts from the evidence. The judge had the right to announce the mental processes by which he determined the credibility of the witnesses and by which he arrived at his conclusions. A new trial cannot be demanded upon the ground that the judge in exercising this right may have exceeded the bounds of propriety.
In People v. Williams (1942) 55 Cal.App.2d 696, rape convictions of two men were reversed based on Burnell blurting out insults in front of the jury. After the defense lawyer referred to a defendant as "the gentleman on the right," this discussion ensued:
The Court: I think the word "gentlemen" is not only unnecessary, but inappropriate to these men.
Mr. [Leo] Zide: I object to that. I think it is error and very prejudicial.
The Court: All right, you can have whatever objection you please. The jury will pay no attention to that, but the word "gentlemen," I think, is very inappropriate.
Mr. Zide: It applies to everybody in the courtroom.
The Court: I can think of a better one for them.
Mr. Zide: I object again—
The Court: You have made your objection.
Mr. Zide: Your Honor, I object to the last statement—
The Court: You can object all you want to.
Mr. Zide: —on the ground it is prejudicial.
The Court: I don’t think the word is appropriate.
Mr. Zide: May I object again?
The Court: Let’s hear no more from you, or you will get in trouble.
The Court of Appeal declared:
"The statement of the judge, made in the presence of the jury and before the rendition of a verdict, that defendants were not gentlemen and that he could think of a better name for them, could hardly fail to indicate to the jury that the judge was firmly convinced of their guilt."
The opinion, authored by Justice Marshall F. McComb, made note:
"A number of cases have been brought to our attention, in which the same trial judge who presided over the instant case also presided, and in which the defendants bitterly complained of the judge’s misconduct."
The opinion in Lady v. Worthingham (1943) 57 Cal.App.2d 557 was also authored by McComb. The jurist (who was later to become a member of the state Supreme Court) found that Burnell’s insulting remarks to the plaintiff provided no basis for a reversal. Nonetheless, an excerpt from the transcript quoted in the opinion does show what lawyers and litigants had to endure in Burnell’s courtroom.
William Ellis Lady was before Burnell as both a lawyer and a litigant. He was suing a former client on a promissory note. This discussion took place:
Mr. Lady: May I suggest —
The Court: You may not suggest anything, but answer the questions. You are here as a witness.
The Witness: I would like to suggest—I would like to address the court.
The Court: All right; go ahead.
Mr. Lady: Now, if the court please, if your Honor is taking that attitude, you indicate there is something wrong with us before we get an opportunity to complete the evidence. I ask your Honor to disqualify yourself.
The Court: I repeat the statement, you made a technical objection. You are supposed to be a lawyer. Your duty to your client is that of the very greatest type of fiduciary relation. An honest lawyer, I would think, would be willing to answer every question to every fact before the court. However, you have made the objection.
Mr. Lady: Does your Honor mean to say I am a dishonest lawyer?
The Court: Mr. Bailiff, would you make this man sit down?
Mr. McCloskey: Will you take the stand?
Mr. Lady: Would you mind —
The Court: Another word from you and you are going to be sentenced to jail for contempt. You answer the questions. You are a witness, and that is all.
The California Supreme Court’s majority in Lund v. Pacific Elec. Ry. Co. (1944) 25 Cal.2d 287 declined to consider the appellant’s allegations of judicial misconduct on Burnell’s part because objections to his remarks were not made at trial. In a dissent, Justice Jesse Carter opined:
"In addition to the instructions in all instances being made in the most favorable light to defendant’s case, and at times being prejudicial to plaintiffs, it appears upon the face of the record that the trial judge throughout the trial maintained an attitude antagonistic to the presentation of plaintiffs’ case and freely and out of turn made remarks in the presence of the jury, in the light of which, I am convinced that the plaintiffs did not have a fair trial."
He went on to say:
"In my opinion the misconduct of the trial judge in this case was the controlling factor in influencing the jury to return a verdict in favor of the defendant. To hold that plaintiffs cannot now raise the question of misconduct because no objections were made to the remarks of the trial court during the trial is requiring plaintiffs to do an obviously idle act, because it is obvious from a study of the record that had plaintiffs’ counsel objected to the facetious and caustic remarks of the trial judge he would simply have invited further abuse and intimidation."
In 1948, allegations of misconduct on the part of Burnell were examined in five appellate opinions—which I’ll discuss tomorrow.
Even after his death
the following year, Burnell’s conduct was the subject of judicial examination.
In Metzenbaum v. Metzenbaum (1950) 96 Cal.App.2d 197, McComb found
that comments by Burnell were not objected to at trial and, if note had been
made of them, were not so prejudicial as to be uncurable through proper instruction.
The gibes included an insinuation that the plaintiff’s counsel was not much
of a lawyer and a remark that a witness "took a nice little nap on the witness
stand when he wasn’t testifying."
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