Judge faces election after unpopular decision

The community’s anger with the judge was vocal and passionate. But it probably would have faded away as just another tragic story in a tough-luck town along the freeway between Los Angeles and Las Vegas.

VICTORVILLE, Calif. _ The judge didn’t believe the father was a threat and denied the mother’s plea to keep him away from their 9-month-old son. It was a seemingly routine ruling in a busy family law court called on too often to referee passionate fights between broken young families over the care of babies.

“My suspicion is that you’re lying,” Judge Robert Lemkau told Katie Tagle, 23.

Ten days later, her 25-year-old ex-boyfriend Stephen Garcia shot and killed their baby son and himself and the case was routine no more. A public frenzy ensued.

The community’s anger with the judge was vocal and passionate. But it probably would have faded away as just another tragic story in a tough-luck town along the freeway between Los Angeles and Las Vegas.

But this is California _ one of 33 states that elects judges in some form _ and it’s Lemkau’s misfortune that his seat is before voters June 8. The judge takes little solace that a growing number of legal scholars are arguing that electing judges rather than appointing them is unseemly and corrupting.

That’s because a challenger for his job has emerged amid the controversy and the clamor lives on in the local newspapers, talk radio and the blogosphere. Academic white papers discussing the evils of judicial elections are of no help to Lemkau, who continues to weather intense criticism. About 100 demonstrators picketed his court Monday with signs calling the former prosecutor of crimes against children a “baby killer.”

“It occurred at the worst possible time for my candidacy,” said Lemkau, who had expected to run unopposed like the 29 other uncontested judicial seats on the June 8 ballot in San Bernardino County.

Lemkau’s election opponent jumped into the race after the Jan. 31 murder-suicide and is making it the focal point of his campaign, arguing that the judge’s ruling against Tagle was legally wrong and his demeanor ethically questionable.

“His treatment of Katie was horrific,” said James Hosking, a local prosecutor challenging the judge. “Judge Lemkau’s ruling in the Tagle case was indefensible.”

In particular, Hosking said Lemkau may have violated judicial ethics requiring judges to treat litigants with respect when he said he suspected Tagle was lying.

Hosking said he would have ruled in favor of Tagle until it could be determined which parent was telling the truth.

Lemkau, in his first interview since the controversy erupted, told The Associated Press he regretted calling Tagle a liar and was “crushed” as a father and grandfather by the murder-suicide. He said he couldn’t sleep for a week after hearing the news.

“The worst nightmare of a judge,” he said, “is to deny a restraining order and there are catastrophic results.”

Nonetheless, he stands by his decision “based on the evidence before me” and argues further that a contrary ruling that day wouldn’t have stopped Garcia.

“If you are a homicidal, suicidal psychopath, you are not going to be persuaded by a restraining order,” the judge said. “It’s not like I released a psychopath onto the street _ he was already on the street.”

It’s said that criminal court is full of the worst people on their best behavior while family court attracts good people at their worst. Family law court is among the most contentious branches of the judicial system and Lemkau routinely upsets dozens of litigants weekly with his rulings.

“Everyone lies in family law court,” said divorce lawyer Guy Herreman, who has appeared before Lemkau and respects the jurist as fair. “That’s just the facts of life.”

At the heart of Lemkau’s ruling are two e-mails sent by “John Hancock” and labeled “Necessary Evil” that told a long, rambling story of a father who killed himself and his 9-month-old son after his ex-girlfriend failed to reconcile with him. Tagle told the judge Garcia sent the e-mails and meant to carry out the plan. Garcia denied it.

Amid the he-said, she-said argument before him, Lemkau decided Garcia could retain partial custody of his son _ especially since another judge on Jan. 12 found that Garcia wasn’t a threat.

“All I had were the e-mails,” Lemkau said. “The source of the e-mails was indeterminate.”

Tagle last saw her baby on Jan. 28 when she handed him over to Garcia in a Victorville parking lot.

In the days before his death, Garcia posted a flurry of desperate messages on the Web to Tagle, along with pictures of him and Wyatt and video clips of the baby at a younger age.

“Are we really going to do this? I want my (expletive) family back, come back before it’s too late. Please? Anything?” Garcia wrote before posting a photo gallery of himself with his son.

In the wee hours of Jan. 31, Garcia and the baby were found dead on an isolated mountain trail about 80 miles northeast of Los Angeles.

In a prepared statement the judge read March 3 in a courtroom beefed up with extra security, he apologized for calling Tagle a liar. The apology backfired when the grieving mother rejected it as insincere.

“He didn’t even look me in the eye,” said Tagle, who wore the same blue dress to court March 3 that she wore to her baby’s funeral. The baby’s ashes are now a centerpiece in the Yucca Valley family home Tagle shares with her parents and 4-year-old son, who was told his brother is now “living with the angels.”

Emotions are so raw and Tagle so angry that she rejected a request from Garcia’s parents to share some of the baby’s ashes. Garcia’s parents wanted to mix them in with their son’s remains.

“It’s the only way I can keep my baby safe now,” she said.

Tagle is also backing the judge’s opponent in the election.

“I don’t want to be pitied. I don’t want money. I just want to be heard,” she said. “I don’t want this to happen again. I don’t want him to make a wrong decision again.”

It’s precisely these public uproars over unpopular decisions that opponents of electing judges in contested races argue are unfair.

Retired U.S. Supreme Court Justice Sandra Day O’Connor and others are campaigning to change the selection-process in the states that elect judges, arguing that campaign donors are often lawyers who appear routinely before the candidate-judges. They also say judges should be free to make unpopular decisions without having to worry about ballot box repercussions.

“If the judge followed the law, it is simply wrong to punish him for that,” said Northwestern University law professor Stephen Presser, a leading scholar on electing judges. “When you start electing judges, they start playing to public sympathies.”

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