good bench here in the Southern District
of California. But when I first started
being a lawyer, I would be so outraged in
my tone, when the judges who were on
our bench were simply doing what was
reasonable and fair.
Q: Any particular incident stand out?
A: I remember a motion to suppress.
The motion to suppress was denied,
and I began to quote William Pitt to the
judge: “‘The poorest man may in his
cottage bid defiance to all the forces of
the Crown. It may be frail; its roof may
shake; the wind may blow through it.
The storm may enter but the King of
England dare not enter. All of his force
dare not cross the threshold of the
ruined tenement!’ So to, in this case,
the entry into the trunk of Jose Antonio
Esquivel contravenes the fundamental
principle of individual autonomy
protected by the Fourth Amendment!”
Q: And his reaction?
A: The judge began to blow his nose
Q: I thought he would be impressed that
you could quote William Pitt verbatim.
A: Not so.
Q: What did your father do?
A: He was a personnel manager at a
small manufacturing concern. My father
was not a bad person. I suppose my
place in the birth order and the things
that I saw that happened made me feel
that he was being unfair. He was unfair,
I thought, to my mother, to my siblings. I
just didn’t like that.
All my life, I’ve hated bullies. So often,
you see certain things happening in court,
especially where I come from, where we
represented people from Mexico, many
of whom were poor, many of whom were
illiterate, who were hauled into federal
court on charges, and most of whom were
motivated by simple economic necessity.
So it inspired me to do things, in standing
up, that I think was the right thing to do,
but may have been fueled by an excessive
zeal and somewhat less dispassionate
analysis than was called for.
Q: Where were you born and raised?
A: Louisville, Kentucky. I went to Columbia
College in New York. Then I went to
Harvard Law School.
Q: How did you wind up in San Diego?
A: I wanted to work for a public defender’s
office, and I had an interview. I left Boston,
where there was a foot of snow on the
ground, and landed in San Diego. When
I got off the plane, it was a balmy 68
degrees. The palm trees were being kissed
by a gentle breeze, and I said to myself,
“This is where God wants me to serve His
Q: Was that with the Federal Defenders
of San Diego?
A: Yes. I worked there for six and a half
years, and became, for the last 18 months,
their chief trial attorney: assigning
cases and working on supervision of
the other lawyers and helping with the
administration of the office. The executive
director ran the office, and he is just a
fantastic man: John Cleary. He has really
dedicated his life to knowledge and to
improving both himself and the world.
At age 50, he started to learn Russian.
Then when he was in his 60s, he taught
a comparative criminal procedure course
at Moscow State University. Now, he’s
in China for his study of the Chinese
language, and he’s starting to teach a
Q: What did you learn from him?
A: He was just an ideal boss. Before he
took over the office, there were two or three
appeals in the space of a year. He took
over, and it increased by a factor of 10. He
increased the emphasis on advocacy, on
professionalism, on appropriately zealous
representation of people who needed
zealous representation. He would always
support his staff.
Q: You’ve taken 160 cases to verdict. How
many do you do a year now?
A: Some years, I don’t do any. Other years,
five or six. Unfortunately, in both civil and
criminal cases, there’s a tendency for fewer
cases to actually go to trial. I think that is a
A: First, because it’s important for the
country, for the society, for the polity,
to have these issues aired in open court
and decided by a jury. Second, in order to
determine or gauge what is an appropriate
settlement in a case, you have to have
tried similar cases in the past so you can
understand what is the likely outcome.
Third, it’s a terrible thing, and it’s very
demoralizing for lawyers, especially young
lawyers, not to be able to slug it out, to
fight a case, to litigate the case. To actually
understand the dynamic of presenting
your case. To be forced to translate what
you want to say into what makes sense.
To speak in such a way that it is clear and
appropriately convincing to people who
make the decision.
Q: We hear this a lot. “More and more
cases are settling. Fewer cases are going
to trial. It can be a danger to the justice
A: It is a danger. Not can be. Is.
Q: What can be done to reverse this
A: First, lawyers have to realize that it’s
important to try cases. Even if you lose a
case, it’s all right. There are prosecutors
who will say this: Sometimes it’s better to
lose a case than to sell it away too cheaply.
Q: That’s tough if somebody’s freedom is
on the line, I guess.
A: But your freedom is never on the line.
It’s always an issue of… Do you take four
years to avoid eight? Do you take 10 to
Q: Earlier, you talked about the difficulty
of Mexicans getting a fair shot in the
justice system. Do you think that’s still
A: I think that people from Mexico are
coming into their own. On the other hand,
you look at the population that we have
here in California. There is a danger that
the disproportionate distribution of wealth,
which is a national problem, is aggravated
here in California. Because you also have
a population of people, many of whom are
undocumented and who cannot properly