Victorville judge assailed for toddler’s murder at dad’s hand now faces election challengeBy Paul Elias, AP
Saturday, March 13, 2010
Judge faces challenge after child-custody tragedy
VICTORVILLE, Calif. — Katie Tagle pleaded with the judge that her ex-boyfriend had threatened to kill their 9-month-old son and himself if the couple did not reconcile. She wanted the judge to revoke the boyfriend’s custody of the baby with a restraining order.
“I’m going to deny it ma’am,” San Bernardino Superior Court Judge Robert Lemkau said. “My suspicion is that you’re lying.”
Ten days later, Stephen Garcia shot and killed the baby before turning the gun on himself.
The sustained community uproar in this dusty, blue collar town on the edge of the Mojave Desert that followed the Jan. 31 murder-suicide surprised even Lemkau, who is used to making tough decisions during 34 years as a prosecutor and another three years as a judge.
Family law court is among the most contentious branches of the judicial system and Lemkau routinely upsets dozens of litigants daily with his rulings — and a hardened, no-nonsense demeanor that comes with seeing so many sad, broken families fighting over babies.
Lemkau, in his first interview since the controversy erupted, told The Associated Press he was “crushed” as a father and grandfather by the murder-suicide and 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.”
“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.”
But since Lemkau is on the June ballot and a political opponent from the district attorney’s office is exploiting the unpopular decision, the Jan. 21 ruling lives on in the blogosphere, local newspapers and talk radio. Growing demands for Lemkau to resign culminated Monday with 100 demonstrators carrying signs outside Lemkau’s courtroom, calling the former prosecutor of crimes against children a “baby killer.”
Both candidates are scrambling to raise tens of thousands of dollars each for a race that was to be uncontested and held almost no public interest until Lemkau’s ruling. It is now the hottest local race and one of the many contested judicial contests across the country that a growing number of legal scholars led by retired U.S. Supreme Court Justice Sandra Day O’Connor oppose as unseemly and corrupting.
O’Connor and others are campaigning to change the selection-process in California and the 32 other 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.”
The public clamor Lemkau touched off with his Jan. 21 decision shows no signs of abating. In a prepared statement he read March 3 in a courtroom beefed up with extra security, the judge 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 were the same blue dress to court March 3 that she wore to her baby’s cremation and 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 parent wanted to mix them in with their son’s remains, but Tagle said no.
“It’s the only way I can keep my baby safe now,” she said.
Tagle last saw her son alive on Jan. 28 when she handed him over to Garcia in a Victorville parking lot.
Now she is actively trying to remove Lemkau from office.
“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.”
Lemkau’s election opponent James Hosking is a San Bernardino County prosecutor who makes no bones about hammering the subject from now until polls close on June 8 to unseat the judge.
“Judge Lemkau’s ruling in the Tagle case was indefensible,” said Hosking, who said fellow prosecutors urged him to run and that he formally filed to challenge Lemkau on the last day when no other candidates stepped forward.
Over lunch Friday before he was to drive to San Bernadino, Lemkau defended his ruling.
The evidence Tagle showed him consisted of two long e-mails titled “Necessary Evil” written by a “John Hancock” that was a fictionalized account of a father killing himself and his 9-month-old son after his ex-girlfriend refuses to come back.
The ex-boyfriend in a sworn statement and again in front of the judge, denied writing the e-mails even though Tagle insisted that Garcia had posted a similar story to his personal Web site.
Lemkau said that, since he had no way of determining on Jan. 21 who was lying and that Garcia produced photographs showing Tagle drinking while holding the baby, he was not going to cut off custody to the father. He noted that two other judges previously found Garcia wasn’t a threat when they denied similar requests last year.
“All I had were the e-mails,” Lemkau said. “The source of the e-mails was indeterminate.”
He said he does regret calling Tagle a liar. Miguel Gonzalez, the public relations representative the judge hired this week to help with the campaign, is trying to arrange a private meeting between Tagle and Lemkau.
Family law lawyers who have appeared before Lemkau defend his ruling as a decision that could have gone either way in a busy, overly contentious forum.
“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.”
Tags: California, Judicial Elections, North America, United States, Victorville, Violent Crime