Copyright 1992 The Time Inc. Magazine Company

Time

March 9, 1992, U.S. Edition

SECTION: INTERVIEW; Pg. 12

LENGTH: 1486 words

HEADLINE: A Judge Whose Ideas Nearly Got Him Killed;

HOWARD BROADMAN works in a small California town, but his innovative sentences have made him one of the most controversial jurists in the nation

BYLINE: By JANICE CASTRO

VISALIA;

Howard Broadman

BODY:

Q. In just three years on the superior-court bench here in Visalia [a town of 80,000 situated 181 miles north of Los Angeles], you've got into a lot of trouble because of your so-called creative sentencing. You've made defendants quit smoking, attend Alcoholics Anonymous meetings or see a psychiatrist as conditions of probation. You ordered a thief to wear a T shirt proclaiming he was on probation. You told a man who beat his ex-wife to leave town. You sentenced a man who assaulted someone to donate his car to a shelter for battered women. Isn't this eye-for-an-eye justice?

A. I thought it was poetic justice.


Q. Where does poetic justice stop? In some countries they cut off your hand if you steal.

A. We don't do that. Yes, these sentences are coercive. But so is going to prison. Which is more coercive -- losing your car or going to prison? Understand, none of these defendants have to accept these terms and conditions of probation. You can say, "Judge, I don't accept those conditions. Give me your best shot."


Q. One guy who didn't like what you were doing walked into your courtroom last year and tried to shoot you in the head. Why?

A. He was upset about the Norplant decision.


Q. That was your most notorious case. Darlene Johnson, the defendant, pleaded guilty to beating her children brutally. You could have sent her to state prison for four years. Instead, you now stand accused of violating her constitutional rights by requiring her to use Norplant, a form of birth control that is implanted in the arm.

A. Wait. I didn't require her to use it.


Q. It was part of her sentence.

A. I told her about it at the sentencing hearing and asked her if she wanted it. She said she did. She was pregnant, and she said she didn't want to have any more children. I told her that the state would pay for it if I included it in my sentencing order. She talked it over with her lawyer and agreed to that.


Q. Even so, she soon changed her mind. She says you violated her reproductive rights. Her lawyer and many legal experts say she couldn't really make a free choice under the circumstances, since you had it in your power to put her in state prison for four years.

A. Would it have been better simply to lock her up? In my heart, I felt it was compassionate. She was flunking parenting. She needed help. She needed to take care of the child she was bearing and to complete the conditions of her probation. I thought if there was less stress on her, if she did not have still another child right away, that she might be able to do all these things. I kept her in the community. I sentenced her to 365 days in the county jail, and parenting classes and mental-health counseling. I thought it would help her.


Q. How do you answer people who say you violated her right to privacy?

A. I say they're right. That's what courts do. Courts balance one right against another. And I was balancing her rights against the rights of her children.


Q. She is now appealing the case.

A. Yes. Everyone has the right to appeal my decisions. Several are doing so.


Q. Some law professors think that you are excessively creative, that you are a publicity hound who thinks he's smarter than everybody else.

A. I know I'm not smarter than everybody else. And face it, nobody in their right mind would seek the kind of lacerating publicity this Norplant decision has generated. This happened to me. Like being shot at happened to me.


Q. Why did this man try to kill you?

A. Because he felt that my Norplant decision was wrong. He passionately opposes birth control.


Q. Was he rational?

A. Either he was insane or he is a great hero. I mean, who acts on his beliefs? Everyone talks tough, but if he truly believed that I was killing babies, he was a brave enough man to stand up and try to kill me and suffer the consequences. I have seen the videotape of his confession, where he talked about planning the murder. He wanted the death penalty. He prepared for this. He had shot at a target hundreds of times.


Q. So you're at the bench, and you see this guy sitting there in the courtroom.

A. I hadn't really taken note of him. I was hearing a simple case, dividing up property in a divorce. He stood up and pointed a .357 at my head and pulled the trigger. And he missed.


Q. How close was he?

A. Nineteen feet. I ducked underneath the bench and waited for him to come around the corner and shoot at me again. A lot was going through my head very, very fast. I thought I was dying. I was feeling for the blood, and I couldn't find the blood. Then I saw the bullet hole in the wall above me and realized that he'd missed. I couldn't decide what to do, whether to beg or fight.


Q. Didn't you hear the scuffling when the bailiff rushed in and grabbed the guy?

A. No. So much was going on so fast. Then I stood up and saw him. He was flabbergasted that I was alive. He came for me. He wasn't cuffed.


Q. And you took a swing at him?

A. I took a lot of swings at him! It was chaos. This man had tried to kill me. I came around the bench, and he was coming for me, and I was punching him, and he was hitting me, and people were trying to pull us apart. Some people say I showed bad judgment. They think that a judge shouldn't get mad when somebody tries to kill him.


Q. You recently put an abused wife in jail. Why did you punish the victim?

A. She refused to testify against her husband, who had beaten her. I did not want to put her in jail. My judge friends told me, "Howard, you've got to get her out of jail."


Q. So why did you do it?

A. She violated a direct order of the court. I had to make a judgment call. She made her stand, I made my stand. It was a one-day case, and while it was going on, I had her held in my private holding cell at the courthouse. I had the bailiff stay with her and bring her a nice sandwich. The jury convicted her husband. And then I let her out.


Q. Didn't you have any alternatives?

A. I could have fined her. But she was poor.


Q. You didn't fine her because it would have been a hardship. Instead you put her in jail. Wasn't that pretty harsh?

A. Look, society needs to know that we take spousal abuse very seriously. And if you are a victim, you should know that we expect you to testify. Now if I say to this woman, "That's O.K., Ma'am, stay away. Who gives a rip?" then what am I really saying to all the other battered women? That their husbands can get away with this. Anarchy is the worst-case scenario. The judiciary is the salvation of a free society. Not me. The system.


Q. Yet you have also argued that the system is broken.

A. But it's still the best thing we have. The system must work.


Q. What led you to depart from simple prison sentences and start to tailor these custom-made sentences?

A. I was a municipal-court judge for two years, and I got to know the defendants on a first-name basis, they came in so often. I decided that this isn't working.


Q. But where do you get these ideas for sentences?

A. I don't know. When you are a judge, there is no bank of ideas. You cannot go to your friends and ask them what they think you should do. That would be wholly unethical. I sit and read the cases and read what other judges have done in similar situations and try to think of what is fair and reasonable and what makes sense. Sometimes I'll think of the answer while I'm driving in my car.


Q. Given the fact that so many of your decisions are original, even quirky . . .

A. Most of my decisions are mainstream stuff. But whenever I do something different, they say, "Oh, there he goes again."


Q. What impact does that reputation have on your future as a judge?

A. I don't really care. But I know that it has doomed me from being elevated to the court of appeals.


Q. Why?


A. I'm too controversial. There are plenty of competent, bright, solid judges who are not controversial. But I don't have any political or judicial aspirations. I'm just trying to do the best job I can. I'm happy. I'm 41 years old. Life is too short. In nine or 10 years, I'd like to retire from the bench.

Q. And do what?

A. Maybe go back to school. Maybe teach. This semester I'm taking an art-history course. I like having the time to do things I enjoy. When I was a lawyer, I was a junkie for work. I would see clients on Sundays. And my wife and I have talked about joining the Peace Corps after our children are older. They're 13 and 11 now. The house will be paid off by then. How much money do you need?


Q. Before you were a judge, you had a very lucrative practice as a divorce lawyer.

A. We call it family law.


Q. Did you ever handle criminal cases?

A. No. So I didn't come to the criminal-justice system with any prejudices.


Q. Or any experience.

A. That's 100% correct. But you could also say I came with a clean slate.