Judicial elections are… a thing. California, like most states, relies on the voting public to decide who sits on the bench in a large portion of our judiciary. As you might guess, this can be problematic. One common piece of advice for picking which judicial candidate to vote for is to pick the one you haven’t seen make headlines, because most of the time they make headlines it’s because they have been caught doing something very bad.

In 2015, John Oliver and his team at HBO dedicated a main segment of their show to laying out some prickly issues surround our system of electing judges, and it is worth a watch:

The job of a judge is to act as a referee in the courtroom, ensuring that attorneys obey the necessary rules and procedures in order to guarantee the right to a fair trial. What happens if we elect an attorney who themselves bends those rules? How can we expect them to uphold the law from the bench?

A Los Angeles County Deputy District Attorney who is now asking you to give him a seat on the Los Angeles County Superior Court has been found to have violated discovery rules, had a case overturned for egregious misconduct, and fabricated evidence in the middle of trial.

That DA’s name is Adan Montalban, and he MUST NOT be the next Judge of the Superior Court in office number 145.

“That was it? I didn’t hear it.”

During a 2015 trial, Montalban was caught fabricating evidence. Without advising the defense attorneys, he inserted an additional and damning statement into a transcript of an audio recording… a statement which, on listening to the tape, neither the judge nor the defense attorneys could hear.

Judge Robert J. Perry gave Montalban an out, saying that he believed his actions to be a result of “more incompetency than intentional intent to deceive.” Any DA who presents this level of “incompetency” and a lack of respect for the rules and legal procedures is a danger to the judicial system and to the public.

Here’s how the judge later summarized the situation of the late discovery before eventually granting a mistrial:

UPON THE PLAYING OF THE PORTION OF THE TAPE THAT THE COURT JUST READ, [THE DEFENSE] RAISED AN OBJECTION SAYING THAT, HEY, I DIDN’T SEE THAT IN THE TRANSCRIPT, THE TAPE I GOT MONTHS AGO. AND NOW IT HAS COME OUT THAT IT WAS NOT IN THE TRANSCRIPT. THIS IS SOMETHING THAT WAS ADDED DURING TRIAL WITHOUT NOTICE TO THE DEFENSE BY MR. MONTALBAN.

When challenged on this by the other DA in the trial, Judge Perry responded:

HE’S ACCUSING YOU OF ADDING SOMETHING, YOU, THE PROSECUTION TEAM OF ADDING SOMETHING THAT ISN’T EVEN ON THE TAPE. DON’T YOU GET IT? LET’S PLAY THE TAPE.

After listening to the section of tape in question, the discussion continues:

[JUDGE PERRY]: I DIDN’T HEAR IT THAT TIME.

[DEFENSE ATTORNEY] GRAYSON: FOR THE RECORD, THE ONLY THING I HEARD WAS “THAT’S CRAZY.”

[JUDGE PERRY]: THAT WAS IT? I DIDN’T HEAR IT.

[DEFENSE ATTORNEY] KALLEN: I DIDN’T HEAR A WORD.

[JUDGE PERRY]: DOESN’T THAT MAKE IT EVEN WORSE FOR YOUR POSITION?

MR. MONTALBAN: NO.

[JUDGE PERRY]: IT DOESN’T?

MR. MONTALBAN: NOT AT ALL, YOUR HONOR. THAT’S — NOT AT ALL.

[JUDGE PERRY]: I WOULD STRONGLY DISAGREE, SIR. YOU PLAY A TAPE, YOU CAN’T — AND THE DISCUSSION CANNOT BE HEARD.

The exchange continues:

[JUDGE PERRY]: I’M SAYING YOU COME IN HERE AND YOU BASICALLY SAY, THIS IS WHAT THE TAPE SAYS. TRUST ME.

MR. MONTALBAN: THAT’S NOT WHAT I’M SAYING.

[JUDGE PERRY]: BECAUSE YOU FOLKS DON’T HAVE HEADPHONES, YOU HAVE TO TRUST THE PROSECUTOR WHO HAS SURPRISED THE DEFENSE IN THE MIDDLE OF TRIAL WITH THIS INCREDIBLY DAMNING STATEMENT.

Judge Perry concluded that:

I’M [GRANTING A MISTRIAL] BECAUSE YOU, SIR, MISLED THE DEFENSE, YOU PLAYED BASICALLY A SECRET TAPE RECORDING, WHICH I BELIEVE IS A SECRET TAPE RECORDING, AND YOU HAVE RUNG A BELL THAT CANNOT BE UNRUNG.

Prosecutorial Misconduct

In overturning the conviction in case PA083280, the Court of Appeal said: “we conclude that the prosecutor [Montalban] committed misconduct” and that “…the misconduct is the likely explanation for the conviction…” and concluded that “in the absence of this misconduct, it is reasonably probable the result would have been more favorable to [defendant] Gatlin.”

The nature of his misconduct? In his closing argument he repeatedly misstated the law, distorted the jury instructions, and insulted the defense attorney. Misconduct of this sort is often considered “harmless error” by appeals courts — a simple mistake or a rhetorical excess in a closing argument isn’t considered likely to impact a result. In this case, however, his statements were so clearly false and so extensive that the appellate court found that his closing arguments poisoned the entire case.

The Court of Appeal laid out the reasoning behind this conclusion as follows:

We conclude that the prosecutor committed misconduct by misstating the law regarding what the jury was required to decide (reasonableness of Gatlin’s conduct rather than whether the prosecutor proved the elements of the charged crimes), and by denigrating defense counsel and insinuating he was being deceptive. Given that the prosecutor’s improper statements were the last thing the jury heard before deliberating, there is a reasonable likelihood the jury applied the prosecutor’s statements in an objectionable manner. Because the prosecutor’s case was built on debatable inferences of Gatlin’s knowledge and intent, the misconduct is the likely explanation for the conviction for the March 21, 2015, robbery. We conclude that in the absence of this misconduct, it is reasonably probable the result would have been more favorable to Gatlin.

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Aside from worrying endorsements from Nancy Grace, Dr. Drew Pinsky, and law enforcement unions, Slaten seems fine. He has experience serving as a Temporary Judge for the Los Angeles Superior Court multiple times in recent years, so he knows what he is doing. He also has an actual campaign page where he says the right things and lists his endorsements, unlike Montalban. Troy Slaten is the obvious choice in this race.