by Justice William W. Bedsworth
Many of you are too young to have experienced Tom Crosby. Tom was a force of nature, a spectacular lawyer and judge who flashed, comet-like, across our county’s appellate skies as a member of our first Court of Appeal from 1982 to 2001.
Crosby was first my mentor, then my adversary, then my colleague, and now one of my heroes. If you walked into this movie after “The Quill” made his exit, you missed a lot. (See 116 Cal. App. 4th 1420, 1428-31.)
One of the things he said to me made a lasting impression. He said that one of the hardest parts of the aging process is losing your ability to give people the benefit of the doubt.
You spend decades saying to yourself, “Well, that doesn’t seem to make sense, but they must know what they’re doing,” and “I don’t know; that seems crazy but these guys are experts . . . .”
And then, all of a sudden you’re old, and you realize, “No, what they did really is stupid. I’ve been giving these people the benefit of the doubt all these years and I shouldn’t have been. They’re just morons.”
I’ve been experiencing this a lot lately. I’m willing to chalk some of it up to the you-kids-get-off-my-lawn, old codger crankiness that is age appropriate for me now. But I think there’s more to it. For one thing, I don’t yell at the kids to get off my lawn. I not only don’t mind throwing back the tennis balls they hit onto my deck during streetside batting practice,1 I rather enjoy it. I give them tips.2
So when I say my fellow human beings are disappointing me a lot of late, I don’t think it’s just age. I think they’re doing a lot more now to provide evidentiary support for my conviction that human evolution peaked on July 6, 1965, 3 and we’ve been going downhill ever since. By my calculation, we’re somewhere around 1940 now and our devolution seems to be picking up speed.
So it was oddly reassuring when I ran across a quotation from Winston Churchill last week that indicates Churchill was as unhappy with human beings of the twentieth century as I am with human beings of the twenty-first.
What he said was, “I am fond of pigs. Dogs look up to us. Cats look down on us. Pigs treat us as equals.”
And well they should. At the risk of libeling the entire porcine species, I think pigs have the right idea. We’re equals.
The immediate cause of this rumination is the article in my paper the other day that started with these words: “An Irvine man was arrested Wednesday on suspicion of animal cruelty after he allegedly killed a duckling and injured another after taking them out of a pool in the Rancho San Joaquin community, authorities said.”
Say what? He attacked ducklings?!?!
According to the newspaper, he allegedly waded into a pool, grabbed a couple of ducklings from their mother, pulled them out and beat them—one to death.
I have been reading one to three newspapers a day all my life and I have never, ever, ever read about a *pig* wading into a pool and grabbing ducklings. Duckling crime is apparently beneath even pigs.
But not us humans. There apparently is no floor beneath which we dominant species types will not go.
This is not a benefit-of-the-doubt issue. This is just sheer, unadulterated, how-did-I-end-up-in-the-same-species-with-this-guy cruelty.
I can understand somebody going off about a rooster who woke him up at dawn. And I have a neighbor who describes the lovely house finch song that we hear every day as “incessant.” But what in the world could a duckling do to incite violence?
No, this is just a good reminder of a rule I developed over twenty-five years of practice in the criminal courts, a rule reinforced monthly in the court of appeal: He who expects nothing shall not be disappointed.
Life is easier if you just resign yourself to the fact your fellow man will not live up to your expectations no matter how low you set the bar. Expect nothing of him.4
My favorite illustration of this rule is a case I handled when I was a trial court judge a few decades back. The defendant had committed a revenge arson. His ex-girlfriend had begun seeing another guy, and his response was to set fire to her car.
The car was in a condominium carport at the time and the result was a lot of damage. To my mind, it was a clear state prison offense, and I had made that clear to his attorney.
But his attorney was desperately fighting for county jail time. He was getting nowhere with me so he asked me to order a pre-plea probation report under Penal Code section 1203.7.5
This was a step you took if you were confident your client would come off substantially better than most of the people the Probation Department was seeing. You were betting he would look like a good risk compared to all the other felons and could charm them into a favorable recommendation.
This struck me as a waste of time and money. I was convinced the Probation Department would see the case the same way I did. But defense counsel was determined, and I was impressed by his commitment.
“Your Honor, this was completely out of character for my client.6 The only thing he’s got on his record is a misdemeanor, a petty theft. He deserves a break.”
He then fervently recited for about the third time the catalog of equitable considerations he wanted me to consider in favor of his client.
I caved. “Okay, I’ll refer him to Probation for a pre-plea report but he’s gonna have to come out of it spotless. He’s gonna have to come out of it as clean as a towel fresh out of the dryer. I may still send him to prison, but I’m willing to give him this chance because you feel so strongly about it.”
“I do, Your Honor. Like I say, he’s only got that one petty theft.” So we continued the pre-trial and sent him off to the Probation Department.
Sixty days later, he was back in my court for another pretrial, and I had the benefit of the Probation Department’s evaluation. I also had the most sheepish-looking defense attorney I’d ever seen before me.
Turns out, he was right that his client had only a petty theft on his record. But as the probation department pointed out, it was quite a petty theft.
The defendant had originally been charged with grand theft, but it had been busted down to a petty theft because the prosecution had decided what he stole might have been worth less than five hundred dollars.7
The bare record supported him, but the facts did him in. What he’d stolen were two puppies. He’d gone to a pet fair at a local park, wandered through, grabbed two puppies that he thought were purebred, and ran like hell.
A policeman guarding the fair saw him running and gave chase. The defendant hopped in his car and fled onto a freeway.
A high-speed chase ensued, during which the defendant, in an attempt to end the chase, THREW THE PUPPIES OUT THE CAR WINDOW.
True, all his record showed was the petty theft of the puppies. The other charges against him were dismissed in exchange for his plea. But he got six months, which he righteously deserved. And he was now worse off before me than he had been without the report.
Defense counsel, who had taken his client’s “All I’ve got is a misdemeanor,” at face value, just shook his head. “Lesson learned, Your Honor. Set it for trial.”
My mom used to talk about how society was “going to hell in a handbasket.” Well, the handbasket’s getting pretty damn full, and its destination seems frighteningly clear.
My bet is that there will be more humans there than pigs.
BEDS NOTES
- Surely you’re not too old to remember that you can’t play baseball in the street with a hardball. Asphalt tears the cover right off of it (we used to replace it with black electrical tape), and it does serious damage to stucco and windows. Tennis balls not only travel a satisfyingly long ways but do no damage if that long ways carries them into the neighbor’s property.
- “Get that elbow up.” “Don’t step in the bucket; stride straight at the pitcher.” “Weight back!”
- The day Lyndon Johnson signed the Voting Rights Act.
- Women would raise the bar if we ever let them exercise any power. But we don’t, so “bar” might even be a stretch. Think speed bump.
- You have to speak fluent math to be a criminal lawyer.
- Hope to shout!!
- That was the requisite monetary amount for grand theft then. Now I think it’s $950.
William W. Bedsworth was an Associate Justice of the California Court of Appeal until his retirement in October 2024. He's written this column for over forty years, largely just to get it out of his system. A Criminal Waste of Space won Best Column in California in 2019 from the California Newspaper Publishers Association (CNPA). His last book, Lawyers, Gubs, and Monkeys, can be obtained through Amazon, Barnes and Noble, and Vandeplas Publishing. He can be contacted at heybeds@outlook.com.
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