‘I have come to focus on what I can do’: Federal judge won’t be silenced by rare disease
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SAN DIEGO — First-time visitors to Courtroom 15B are usually taken aback when U.S. District Judge Barry “Ted” Moskowitz begins to speak.
Diagnosed with a rare neuromuscular disease nearly a decade ago, the longtime judge’s speech has become increasingly slurred, making him difficult to understand.
But then the computer monitors placed strategically around the courtroom spark to life. In real time, the carefully considered questions and rulings that Moskowitz is known for march across the screen, his words transcribed with surprising speed by a court reporter for all to read.
It may be unconventional, but he has made it work.
The arrangement has allowed Moskowitz, 68, to remain on the bench, pushing back at a disease that is trying to silence him.
He waves off his disability with his characteristic humor and a tip of the hat to his faithful staff and colleagues. “I get by with a little help from my friends,” he likes to say.
“That’s his humility speaking,” friend and fellow Judge Jeffrey Miller said in a recent interview.
“Moskowitz’s greatest gift has been his spirit — the indomitability of the human spirit and the grace to confront a rare neuromuscular condition has been an inspiration to everyone who works with him or has had the chance to spend time with him,” Miller said.
Moskowitz, who grew up in New Jersey, dreamed of being a rabbi. But his father convinced him to go to law school.
He graduated from Rutgers School of Law, where he was classmates with the future Sen. Elizabeth Warren and FBI Director Louis Freeh.
Moskowitz was eventually drawn to Southern California by a mentor — and a murder.
As an assistant U.S. attorney back east, Moskowitz had been prosecuting a case involving 21 tons of hashish on a freighter when one of the suspects’ lawyers was shot dead in the parking garage of his Los Angeles law office. Moskowitz was sent west to investigate.
“I thought everyone was crazy out here,” he half joked during a recent interview in his chambers overlooking San Diego Bay.
A few years later, a mentor from New Jersey, Bill Braniff, joined the U.S. Attorney’s Office in San Diego and lured him south with reports of balmy, year-round sailing weather.
It wasn’t just Braniff’s legal mind that inspired Moskowitz.
When asked by the San Diego County Bar Association to name a moment that continues to inspire him, Moskowitz pointed to the memory of Braniff “paralyzed from the waist down and moving around in a wheelchair while trying a case before a jury.”
After only a year as a federal prosecutor in San Diego, Moskowitz was appointed as a federal magistrate judge in 1986. Ten years later he was nominated by President Bill Clinton to be a district judge.
He earned the nickname “Midnight Moskowitz” for his willingness to stay late into the night — or into the next day in at least one instance — to resolve cases. He also became known for bringing moments of much needed levity to the courtroom. Like the time he ordered two squabbling patent attorneys to watch “Ace Ventura: Pet Detective” over the weekend and provide a full report on Monday, which they did. But the humor was lost on them.
“They didn’t get it,” Moskowitz said.
It was in 2007, when he was jogging, that he first felt something strange with his legs. Later, his coordination came into question while he was taking dance lessons with his wife in preparation for their daughter’s wedding. “My wife just thought I wasn’t paying attention,” he laughed. “I just couldn’t get it.”
He was diagnosed with primary lateral sclerosis, a condition that affects the nerve cells that control voluntary muscles, causing weakness and stiffness. Only 500 to 1,000 people a year are diagnosed with the condition in the U.S. While it has some similarities to amyotrophic lateral sclerosis, otherwise known as ALS or Lou Gehrig’s disease, it is not fatal.
For that, Moskowitz says, he feels lucky.
By 2010, he needed a walker. The speech problems came on more gradually.
He was named chief judge of the Southern District of California in 2012, a seven-year term that is basically two jobs in one: oversee the administration of the court covering San Diego and Imperial counties, all while maintaining a full court docket.
In that role, Moskowitz coordinated the move into the new federal courthouse — a courthouse without enough courtrooms or chambers — and helped negotiate the naming of that courthouse, a challenge in Washington, D.C., that turned out to be full of partisan landmines.
When the downtown childcare center that served many court and federal employees was shutting down, Moskowitz led the effort to relocate it to federal property. The daycare is named in honor of him.
There were government shutdowns and a “fiscal cliff.”
One of the court’s biggest challenges came last year, when the Trump administration’s zero-tolerance policy to criminally prosecute all illegal entry cases flooded the court with misdemeanors. At the same time, the court was short both district and magistrate judges.
Moskowitz recently referred to it as “the most difficult time in the history of our district.”
Moskowitz convened a committee from all sides of the system to come up with a solution, and a special streamlined court was instituted for the illegal entry cases. The program has been criticized by the defense bar for its fast pace and threat to due process, and the court has since adjusted by no longer taking same-day guilty pleas.
All this, and his motor skills and speech were slowly deteriorating.
“I have come to focus on what I can do and not dwell on what I cannot,” the judge explained.
There is a formal mechanism to have a judge removed from the bench in cases of mental or physical disability that renders him or her unable to discharge the duties of office. Examples include substance abuse, the inability to stay awake during proceedings or cognitive impairment.
None of those situations apply to Moskowitz.
His chambers and the bench were modified for a wheelchair. And court reporter James Pence began to transcribe hearings in real time so attorneys, litigants, defendants, jurors and the public can follow along.
“He understands me more than anyone,” the judge chuckled, “even more than my wife.”
The setup appears to work well, although there have been a couple times when the large computer screen meant for the viewing public was not turned on when the hearing began, making the proceedings mostly undecipherable until the court was notified and the monitor revived.
Moskowitz also uses a type-and-talk computer software that speaks his words in a digital voice. He uses it during jury trials to deliver standard instructions. He also makes sure jurors have printed copies of the materials.
During public addresses, he often has someone else read his written remarks for him.
Those who spend time with the judge develop a keen ear for his speech patterns, and his staffers often help translate for him in meetings or on other official business.
“One of the hard parts is when people don’t understand me, they just smile instead of communicate and ask what it was I said,” Moskowitz explained. “They don’t want to insult me by asking me to repeat myself.”
Few judges have faced similar obstacles.
One notable example is recently retired San Diego Superior Court Judge David Szumowski, who was blinded while serving in Vietnam. Clerks helped him read files before court and staffers would sit next to him on the bench, whispering important information in his ear. His guide dog would settle at his feet.
And in the U.S. 9th Circuit Court of Appeals, Judge Ronald Gould, diagnosed with multiple sclerosis and in an electric wheelchair, uses voice-activated typing software and is allowed to appear in court by video when hearings are outside his home base of Seattle.
Still, disabled judges and attorneys remain “grossly underrepresented” in the U.S. legal system, said Peter Lynch, a catastrophe litigator. He is not disabled but saw the need to start a Disability Interest Group at the San Diego County Bar Association.
“There is implicit bias about this issue. They don’t make the cut. They may look good on paper, but when they show up to the interview, they don’t look like anyone else,” Lynch said. “I think it’s tragic. We need people to pay attention in positions of power.”
Lynch said Moskowitz has emerged a “bright shining example of what can be done with the appropriate accommodations.”
If there was any doubt that Moskowitz would finish his term as chief judge, it was put to rest last month when he passed the chief’s gavel to U.S. District Court Judge Larry Burns right on schedule.
“He did it. You never know what you’re made of until faced with a challenge like that,” Judge Miller said. “Not only did he prove it to himself, in my view he was an inspiration for all of us.”
On Jan. 23, Moskowitz went on senior status, a semi-retirement that allows qualified judges to remain on the bench but take a reduced caseload. He plans to whittle his by half.
Before, his wife of 46 years often had to make two dinners: one for her and a late one for him.
Now: “I’ll try to be home by 6,” Moskowitz said. “That’ll be good.”
Twitter: @kristinadavis