Justice Crosby About to Sheathe His Liberal Pen

Justice Thomas F. Crosby Jr., he of the disarming, bright-red bow tie perched above his black robe, still basks in the anomalous story of his court’s creation.

That was 18 years ago. Departing Democratic Gov. Jerry Brown had foisted four liberal nominees upon conservative Orange County to sit as its first Court of Appeal. And not much could Republican Gov.-elect George Deukmejian do about it.

Deukmejian, then the attorney general who sat on the judicial appointments commission, was the lone vote against them. He asked each of the four nominees their views on the death penalty. Politely, but defiantly, all four told him it was none of his business.

Crosby, 60, the last of those four independent spirits still remaining on Orange County’s appellate bench, will retire in mid-May.

When he does, the Santa Ana division of the Court of Appeal will lose its most liberal member. By his own assessment, Crosby was reversed by the state Supreme Court under former Chief Justice Malcolm Lucas (1987-1996), a Deukmejian appointee, more than any appellate court justice in the state.

“There’s actually a perverse thrill to that,� Crosby said. “Maybe I was doing something right.�

The court may also be losing its most gifted writer.

Among his colleagues, Crosby is known as “the Quill.� He routinely quotes Shakespeare or Dr. Samuel Johnson or even TV’s Dobie Gillis when it suits the occasion. Legal jargon is kept to a minimum.

When the court upheld the conviction of David Brown, who persuaded his daughter and sister-in-law to murder his wife, Crosby stated: “The Bard of Avon wrote no darker tragedy than this.�

Crosby on overzealous police officers who posed as florists while serving a search warrant: “Perhaps they have been watching too much television.�

And only Crosby would say in a decision upholding lap dancing, “That’s the rub of it.�

Crosby’s favorite lecture to his research staff is that appellate decisions should be so easy to read that “the average Sports Illustrated fan� can understand them.

Often cases bring out his caustic wit as well as his fervent civil libertarianism.

In a minor drug case, police had entered a motel resident’s room on the pretext of having discovered a cold 12-pack of beer on the man’s front stoop.

“A sin, perhaps, in some quarters,� Crosby wrote in support of the decision to overturn the conviction, “but a far cry from the FBI’s ‘Most Wanted List.’ �

Crosby once berated a trial judge for suggesting that a homeless man in Santa Ana could have moved on somewhere else: “A person with no reasonable alternative . . . need not travel in search of streets and other public places where he can catch his 40 winks.�

Homelessness ignited Crosby’s passions. He wrote the 1994 opinion overturning Santa Ana’s anti-camping ordinance, which forced scores of homeless out of the city. Crosby calls the opinion the most significant of his career. A close second, he said, was his 1994 opinion that the Boy Scouts could not expel a young man just because he was an atheist.

The Lucas court overturned both decisions.

Justice William W. Bedsworth, who typifies the conservative wing among Crosby’s appellate colleagues, laughs that when he was a prosecutor, “I disagreed with Court of Appeal opinions many times, and they were all written by Crosby.�

But Crosby is so brilliant, Bedsworth laments, that “when Tom retires, it will be like losing Willie Mays.

“Tom has the lowest righteous-indignation threshold of any judge I’ve ever seen. Items that are no more than speed bumps to me bring a passionate response from Tom.�

Many of Crosby’s biting opinions are directed at judges and lawyers.

A favorite target has been conservative Superior Court Judge Robert Fitzgerald, who has a penchant for lecturing defendants when he sentences them.

“We have no doubt he is flippant by nature,� Crosby wrote of Fitzgerald. “This trait creates extra work for this court.�

Fitzgerald, still on the Superior Court bench, says with a smile that he never took it personally.

“It’s simply the difference between a conservative and a liberal . . .� Fitzgerald said. “My comments have been inappropriate at times. But that’s just my style.�

For all his love for the job, Crosby muses about how close it came to never happening.

With an undergraduate degree at Stanford (1962) and a law degree from the University of California’s Boalt Hall (1965), Crosby was already practicing law when he headed to Peru for two years in the Peace Corps in 1968. (“The greatest two years of my life because of the people,� he said. “But I had a Jeep, so I had it better than others.�)

Crosby, who lives with his second wife near Tustin, has been an avid painter, traveler and golfer--when there’s time. But his primary interest is his two sons, who are in business together and, he says, “just marvelous.�

A former prosecutor himself, Crosby had been on the Superior Court bench just two years when fate propelled him to the Court of Appeal. He had once been Assemblyman Richard Robinson’s lawyer, and Robinson had great influence with Jerry Brown. If Brown hadn’t acted so quickly before Deukmejian took over, Crosby mused, “we would have had quite a different appellate court, wouldn’t you say?�

Now, however, Crosby says he’s ready for change.

“The stress over the years is incredible. I just never could leave these cases at the office. I lose sleep. I’m in the shower thinking about arcane statutes. One case worried me so much I sent a fax from Rome [while on vacation] telling my colleagues I’d changed my position.�

The difficult cases, Crosby said, aren’t those where public wrath is inevitable--those rare occasions when the court overturns a murder conviction or sides with a child molester’s lawyer.

“The hard ones, both civil and criminal, are those where there just really aren’t any answers,� he said.

The Santa Ana court has grown to six justices, and this year two more will be added to meet the heavy caseload. Crosby points to his newest colleagues--Eileen C. Moore and Kathleen E. O’Leary--as strong evidence that local civil liberties will be protected without him.

The three other original court members all moved on to more lucrative careers--John K. Trotter and Edward J. Wallin to private mediation, Sheila P. Sonenshine to business. But Crosby says big money doesn’t motivate him. He’d like to teach and yearns to extend his writing. He’s working on a book about a notorious criminal but won’t say more for now.

About those early days, Crosby is proud the group stood up to Deukmejian. His only regret, he said, is that they were so delicate about it.

“I took the high road. I wish now I’d told him what I really thought of him.�

Crosby still has four civil cases pending before he leaves the bench. Last week in his final criminal case, Crosby wrote the 84-page opinion when the court voted unanimously to uphold the murder conviction of lawyer-biker Thomas Maniscalco. In 1980, Maniscalco had led a pack of followers to the home of a former drug partner, where they killed all three people in the house.

The opinion was typical Crosby. He led with “Dramatis personae,� the first words of a theater playbill. He then listed all the main participants in playbill fashion (Daniel “Shame� Duffy and Robert “Crazy Bobby� Robbins) and said the case featured “some of society’s worst characters as witnesses.�

The opinion’s closing was less dramatic, but it reflected Crosby’s philosophy as a reviewer of a lower court’s work: “It may not have been a perfect trial. But Maniscalco was only entitled to a fair one. He got that.�