December 2015 - Dealing With Doubt

by Justice William W. Bedsworth

The late Tom Crosby was as fine a lawyer—and as fine a man—as I ever knew. A rare combination of soft heart and sharp tongue made him a legendary criminal defense attorney,1 and his career as an associate justice of the Fourth District Court of Appeal was so stellar as to make it difficult to discern where legend left off and out-and-out myth began.

Before he left us to lecture St. Peter on progressive politics, Tom was kind enough to try to teach me to be a better person.2 I learned a lot from him, most of which close observers are still waiting to see implemented.

But one thing becomes clearer to me as I grow older. Tom once told me, “One of the hardest things about the aging process is losing your ability to give people the benefit of the doubt.”

He was absolutely right.

We grow up having people tell us things that make no sense, but turn out to be right. We are told the earth is round even though we can clearly see it is flat. Turns out it’s round. We’re told that if we don’t brush our teeth there will be painful consequences. There are painful and wholly unforeseeable consequences.

We grow older and we learn that while it makes no sense objectively, bouncing a curve ball on an 0-2 pitch seems to work. We learn the girl we made fun of in eighth grade is the one we desperately want to date senior year. We find out the nerd who spent two weeks writing his college essay is getting offers from the colleges we wanted to attend.

We learn the ultimate counterintuitive truth: it really is more satisfying to give than to receive.

We learn that the people who told us these things knew stuff and we should listen to them. We learn, in short, to give people the benefit of the doubt. We start assuming they know things.

That goes on for a long time. When we hear about a government agency doing something that sounds stupid, or a business taking a position that seems clearly counterproductive, we hear ourselves saying, “That sounds crazy, but these people are experts; they must know what they’re doing.”

We do that a lot. The world is a complex place and we can’t possibly understand it all. So we try to understand what we can and give people the benefit of the doubt about the rest.

Except, as we grow older, we find that harder and harder to do. We find ourselves less likely to say, “They must know what they’re doing,” and more likely to say, “These guys are idiots! I’ve been deferring to them for forty years, and they’ve been getting stuff wrong for forty years. Now I realize they’re just idiots. They don’t have the brains God gave a walnut.”

This realization is especially problematic for an appellate court judge. The law requires me to give deference in certain situations to legislators and trial judges. Sometimes I have to give the benefit of the doubt to police officers and businesspeople.

In 2002, I wrote an opinion reversing a conviction for escape from a juvenile facility. In re Antonio F., 98 Cal. App. 4th 1227 (2002). We held that while we couldn’t figure out why the legislature would differentiate between an escape from a detention facility and an escape from a field trip to a museum, that was the way the statute read, and for all we knew, experts on child behavior had a reason for such a distinction. We gave the legislature the benefit of the doubt.

The legislature reversed us in about an hour-and-a-half. They re-wrote the statute so there would be no difference. But that’s typical of the kind of thing you write as a young judge.3 Today I would not give them the benefit of quite that much doubt. And we’d all be the better for it.

It’s even tougher for my trial court colleagues.4 Bandleaders, beekeepers, busdrivers—at one time or another the trial folks are called upon to judge the conduct and testimony of all those people. They are daily required to decide how much “doubt” to give them before they put their hands on their hips and call off the jam.5

At least at this level I don’t have to judge facts; that’s done for me in the court below, and believe me, it’s not as easy as it looks.

But even here, giving people the benefit of the doubt is becoming hugely problematic for me. I picked up The Week magazine and found this: Doritos have withdrawn their “rainbow” corn chips from the market. Critics—including a man identified as “Conservative pundit Ed Straker,” who is taking most of the responsibility for this idea—have attacked the chips as a ‘‘gateway snack designed to lure children into becoming gay.”

Gateway snacks. How do you even come up with an idea like that? Grown human beings in the 21st Century are concerned that corn chips will make their children gay. How do I give that the benefit of the doubt?

Springfield, Missouri, population 170,000 or so, has passed an ordinance updating its indecent exposure laws to require women to cover a greater percentage of their breasts in public. And to require both genders to cover 100% of their buttocks.

Really? We’re still fighting this battle? I thought the Sixties taught us this was a losing fight. Have we learned nothing in the last fifty years?

Folks, go to a beach some time and tell me just what it is you think you’re going to accomplish with this ordinance? Just how is an officer of the law going to determine what percentage of a female breast is being covered by her clothing? “Excuse me, ma’am, but I think you may be close to the line here; would you please remove your top so I can compute the percentage of your breast that’s covered?”

And how many bikinis do you see that cover the entire buttocks? You gonna arrest every girl on the beach?

We’re scared to death about Sharia law being imposed on us but we’re passing laws to require these godless female temptresses to cover themselves? I’m sorry, Springfield, I’m afraid I’m no more impressed by your attempt to design a burka than I am by the Taliban’s. Hard to give you the benefit of the doubt on this one.

A Washington school district lifted its ban on playing tag during recess. School officials in Mercer Island, Washington (a town roughly the size of Laguna Beach) had prohibited the game to ensure students’ “physical and emotional safety.”

Put yourself in the position of the judge who would have had to rule on this if they hadn’t come to their senses. Tag. The school district had banned tag as being dangerous to the physical and emotional safety of children. How much deference are you, as a judge, going to be able to give that school district?

I could give you more examples. Lots more. I had to weed out a half dozen because they looked like they had or might generate lawsuits, and I’m not allowed to comment on pending or impending cases.

But you see the problem. As a younger man, my instinct would have been to give these people the benefit of the doubt. Now I’m more inclined to call them idiots.

I’m not doing that, mind you. I’m just pointing out that my approach to incidents like these has changed as I’ve aged. Any name calling—of them or me—I will leave to you.

I have a cartoon on my desk that shows a man splayed flat on the ground with a space capsule-like object atop him. Another man is standing next to him, explaining, “I have come from the future to warn you that a time machine is going to fall on you.”

Unless you have already reached my age, I have come from your future to warn you of one of the detriments of the aging process you may not have anticipated. Crosby was right: losing your benefit of the doubt abilities is almost as tough as losing your hearing and your jump shot.

Forewarned is forearmed.


  1. We crossed swords many times when I was a prosecutor.
  2. In Crosby’s cosmos, all Wilson appointees needed instruction in that area, and I think he had given up on making me a better lawyer and was settling for this avenue of improvement.
  3. Well, young compared to now.
  4. Everything’s tougher in the trial court. Those folks work for a living.
  5. That’s a roller derby reference. I feel it’s only fair to give people who read me for 800 words a chance to bail out. “Yeah, I was trying, but when he got to the roller derby reference, I had to throw in the towel and just give up. It’s still further than I usually read him.”

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. Look for his third book, Lawyers, Gubs, and Monkeys, in November. He can be contacted at william.bedsworth@jud.ca.gov.