McConnell Confirmed to Fourth District Court of Appeal

Thursday, October 4, 2001

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McConnell Confirmed to Fourth District Court of Appeal

Panel Rejects Corruption Charge After JNE Member Calls It ‘A Lot of Noise’

By KENNETH OFGANG, Staff Writer/Appellate Courts

Judith McConnell was confirmed and sworn in yesterday as a justice of the Fourth District Court of Appeal’s Div. One.

The jurist, elevated from the San Diego Superior Court, received a unanimous vote of approval from the Commission on Judicial Appointments after more than 90 minutes of testimony.

McConnell was praised by fellow jurists as courageous, honest and hardworking judge who was well-regarded and would serve with distinction on the San Diego-based court. But she was also vigorously attacked by a San Diego lawyer unhappy with the judge’s rulings in a lawsuit involving celebrity author Deepak Chopra.

Carla DiMare of Rancho Santa Fe, who represents Chopra, was the only speaker to oppose McConnell at the hearing or to write a letter in opposition.

DiMare called McConnell “a corrupt judge” who was part of “a cabal of dishonest judges”—one that included three former members of her court who were sentenced to federal prison—and who was “controlled by Gray Cary,” the firm that represented her opposition in one of the Chopra suits.

DiMare’s charges were disputed by William Edlund, a San Francisco lawyer who led the Commission on Judicial Nominees Evaluation’s investigation when it considered McConnell for possible elevation two years ago.

The claims were thoroughly investigated by the commission before it found them groundless and gave the judge a “well-qualified” rating, the former JNE chair said.

“We didn’t find any fire, we didn’t find any smoke, we didn’t even find any hot air,” Edlund said. “We just found a lot of noise.”

DiMare testified in a tense atmosphere that may have been exacerbated by the events of Sept. 11 and resultant concerns about court security.

Not fewer than 14 law-enforcement officers, some in plainclothes and some in uniform, were in the Ronald Reagan Building’s courtroom while she addressed the commission, which includes Chief Justice Ronald M. George, Attorney General Bill Lockyer, and Presiding Justice Daniel Kremer of the court on which McConnell will now serve.

DiMare claimed McConnell has been investigated by the FBI and was a target of the investigation which resulted in Judges G. Dennis Adams and James Malkus being convicted of fraud and racketeering, and Judge Bruce Greer resigning and entering a guilty plea.

The judges were found to have accepted improper gifts from Patrick Frega, a prominent trial lawyer who was convicted along with Adams and Malkus.

George accused DiMare of seeking to impose on McConnell a “guilt by association” standard. The chief justice noted that he was on the high court and voted to remove Adams from office, and said McConnell—who was assistant presiding judge under Greer—had never been implicated in the scandal.

Lockyer added that he had checked with the FBI as recently as a month ago, and that DiMare’s claim that McConnell had been the subject of “a joint state and federal investigation” into corruption charges were unsubstantiated.

Kathryn Karcher, a Gray Cary partner and chair of the State Bar Committee on Appellate Courts, said claims that McConnell had been in league with Greer, and that the assignment of the Chopra cases to her was in some way related to the gifts scandal, was a “new, strained, and incredible theory” that had been raised for the first time while the appeal of a McConnell ruling against DiMare’s client was pending.

The charge came out of the “death throes” of an appeal that a three-justice panel, including Kremer, rejected.

Karcher, who emphasized that she was speaking only for herself and not for her firm or the appellate courts committee, said that McConnell was the type of judge appellate practitioners appreciate. She added that she didn’t know the judge apart from her work, and that she had concluded after checking around that McConnell did not have any personal friendships within her law firm.

Support for McConnell also came from Div. One Justice Richard Huffman, who said he had followed McConnell’s career closely. He recalled her early days on the San Diego Municipal Court, when she “didn’t know a criminal case from a pickup truck” but went on to succeed through “enormous energy, talent, and keen intellect.”

Huffman called the corruption allegations “outrageous” and “scurrilous.” He was also the only witness to allude to a past controversy, when McConnell was criticised for having allowed a teenager to live with his late father’s male lover over the objections of the boy’s mother.

That ruling outraged religious conservatives and is believed to have been a factor in the Senate declining to take up McConnell’s nomination to the federal bench after Republicans took control of the Senate in 1994.

McConnell, he said, “made decisions that were important, that were correct, that were not always popular.”

Also testifying for the judge were San Diego Superior Court Presiding Judge Wayne Peterson and San Diego attorney Judith Copeland, a former JNE chair testifying on her own behalf.

A statement by Lynn Schenk, a former San Diego-area congresswoman who is now the governor’s chief of staff and a longtime McConnell friend, was read her absence.