Tuesday, February 17, 2004
JUDICIAL ELECTIONS: Superior Court Office No. 95
Oki Opponents Claim Judge’s Action Showed Indifference to Consequences
By DAVID WATSON, Staff Writer
Los Angeles Superior Court Judge Dan Oki’s three opponents say there are other issues in their effort to unseat him, but they agree that one issue dominates: the judge’s action in ordering Commissioner Jeffrey M. Harkavy to stop arraigning in-custody defendants in downtown’s Div. 30 at 4:30 p.m. on Wednesday, May 28, 2003.
Much of what happened that day is not in dispute.
Tuesdays are normally Div. 30’s busy day, with arrestees from the weekend nearing the two-court-day limit within which they must be arraigned. Wednesdays after a Monday holiday—May 26 was Memorial Day—are even busier.
Harkavy was not going to be able to arraign everyone by 4:30 p.m., the “normal” end of the court day. But staying late was actually normal for Harkavy and the lawyers and staff assigned to Div. 30, and had been for a long time. On at least one occasion, Harkavy—who commutes by rail—had spent the night in the Criminal Courts Building after missing his last train.
Oki, then Criminal Courts supervising judge, had been involved in ongoing efforts to resolve the problem. The courts were facing a severe budget crunch and the late hours in Div. 30 were resulting in costly overtime for court staff.
Oki, through Judge David Wesley, who was then assistant supervising judge and has since replaced Oki as supervising judge, ordered Harkavy to stop arraigning defendants at 4:30. That left more than 60 arrestees from the weekend.
Harkavy ordered them to return to court the next day. Most of them remained in custody, held on other charges, warrants, or for probation violations.
Some 26 were released. One of them—Jerrell Patrick—is charged with a subsequent murder.
The releases focused public attention on the longstanding problem of late hours in Div. 30, and administrative changes were soon made that have largely resolved it.
Harkavy, Wesley and Oki say they believed that all the defendants would be held until the next day. Arrangements had been made with the Los Angeles Police Department to rearrest those who could not be kept in custody for other reasons, they say.
Oki’s opponents—Deputy District Attorneys Marc Debbaudt and Hilary Rhonan and Encino lawyer Eugene Salute—are skeptical. If Oki did not anticipate the releases, they say, he should have.
In a letter to the MetNews published Jan. 14, the three called his action “completely intemperate” and declared:
“[W]e are shocked that Judge Oki believes that a defendant can be rearrested whenever the police feel like it for a matter in which that defendant is expressly released by the court....We believe Oki knew and simply did not care.”
Debbaudt, a prosecutor for 15 years and a deputy public defender for three years before that, calls it “unprecedented that an individual would make an administrative decision that releases criminal defendants.”
He challenges Oki’s assertion that there was any legal basis for rearresting defendants after Harkavy ordered them to return the following day. Rearrest, he says, usually occurs only after charges are dismissed and refiled, and then the new arrest is technically on a new case.
“I have no idea what he’s talking about,” Debbaudt says. “I don’t think legally you can just willy-nilly arrest anybody who’s been released.”
Rhonan, a prosecutor for nine years, says that Harkavy’s actions amounted to ordering the defendants released on their own recognizance.
“When you order somebody to come back to court they are for all practical purposes on OR,” she says. “You cannot arrest someone who’s on OR before they haven’t come back. So it wouldn’t have been possible for them to have been rearrested when they walked out the door.”
Salute, who has done volunteer temporary judging for the Superior Court since 1996 but concedes he is “not a criminal law expert,” agrees with Debbaudt and Rhonan.
“My recollection is that police do not have the power to rearrest unless the case is dismissed,” he says. He calls Oki’s explanation “somewhat flawed.”
Oki says he did not anticipate that defendants would be released and would not have issued his order if he had.
“Had I known that it would result in this sequence of events that ultimately allowed the release of anyone considered dangerous, I would have found some other way to resolve the problem,” he says.
The judge says that what Harkavy did was not the equivalent of releasing the defendants on their own recognizance.
“The court did not set bail or grant OR,” he declares.
Oki points out that Penal Code Sec. 825, which requires a defendant be “taken before the magistrate—within 48 hours after his or her arrest, excluding Sundays and holidays,” does not explicitly require release if a defendant is not arraigned. The Sheriff’s Department could have simply held the defendants who could not be arraigned and returned them to court the following day, he says.
“That’s what I had assumed would occur,” he explains.
The judge also points to a July report about the events of that day prepared by the Sheriff’s Department which asserts that the deputy sheriffs, the Los Angeles Police Department’s liaison officer, Harkavy and the deputy district attorney assigned to Div. 30 had jointly “determined that the best course of action would be for the Sheriff’s Department to release the defendants and that LAPD subsequently re-arrest those individuals.”
According to that account, the Los Angeles City Attorney’s Office vetoed the plan, instructing the liaison officer not to proceed with the planned rearrests.
In the wake of the May events Wesley replaced Oki as supervising judge and Oki decided against making a widely anticipated run for the post of assistant presiding judge. The court’s APJ is elected by the judges, and after a two-year term usually advances without opposition to become presiding judge.
The change in criminal courts leadership had been planned long before the releases occurred, Oki explains, but he concedes his decision not to stand for APJ was influenced by the bad publicity the releases generated.
“I’ve had my fill of court management positions” for now, Oki says, though he does not rule out a future run for APJ.
Instead of seeking the support of his colleagues for a leadership role, Oki has been forced to seek their aid in an effort to retain his seat on the bench.
Steven Ipsen, president of the Association of Deputy District Attorneys, placed an ad in a legal newspaper shortly before the candidates’ filing deadline soliciting opposition to Oki, Wesley, and three other judges. Debbaudt, Rhonan and Salute swiftly joined the Oki race.
The three say the May events galvanized their interest, but all say there are broader issues of court administration involved in the campaign.
Debbaudt says Oki represents the “Pomonification” of the downtown courts, noting that Oki, Wesley and Presiding Judge Robert Dukes were all at one time assigned to the Pomona court in the Superior Court’s East District. There, he asserts, they developed a style of court administration that infringes on areas of courtroom and case management traditionally left to the discretion of individual judges.
It is a style that places “efficiency above justice” and follows the mantra, “Get in and get out as fast as you can,” Debbaudt says.
Rhonan agrees that the releases were the product of a top-down management philosophy that characterizes court management under Dukes. Judges who have resisted it have found themselves transferred to less important or less desirable assignments, she says.
“I suspect there are judges who are just as displeased with Judge Oki’s conduct as I am,” she says.
Salute calls Oki’s decision a product of “arrogance,” adding that it reflects a concern with budgetary priorities that he says has gotten out of hand.
“There isn’t a dollar of that budget that’s worth anybody’s life,” he declares.
The three have succeeded in prodding Oki into a vigorous campaign. Reports for the period ending Jan. 17 showed Oki had raised $79,721 and spent $45,531—though unlike Wesley, who also faces opposition, he did not choose to spend the $65,000 for a statement to be included in the ballot pamphlet—and at least two major fundraising events have taken place since.
But whether the issues they raise are potent enough to force the judge into a runoff, let along unseat him, remains an open question. Each of the challengers faces major handicaps.
Debbaudt is a veteran prosecutor who has handled gang and murder trials and won a “well qualified” rating—as did Oki—from the Los Angeles County Bar Association’s Judicial Elections Evaluation Committee. But he has disdained fundraising, saying he believes it would be impossible for him to raise enough to reach a significant number of voters in a countywide race and that raising “a little bit of money doesn’t seem to make sense.”
Raised by a single parent in the Sacramento area, Debbaudt attended a school operated by a religious order and for a time planned to join the order himself. Instead, after a trip to visit his sister during which his Volkswagen van broke down, he took a job with Hanna-Barbera Productions in North Hollywood and stayed there for five years.
A graduate of UC Santa Barbara, he attended Loyola Law School’s night program while working for the animation studio and after graduating did plaintiffs’ personal injury cases for about two years before becoming a deputy public defender.
His move to the prosecution side came about four years later, in 1989. A highlight of his prosecutorial career, he says, was his six years in the Abolish Chronic Truancy Division, the last two spent as deputy-in-charge.
“That’s probably the best thing I’ve ever done in my life,” Debbaudt says of the program. Prosecutors find, he observes, that most criminals share the experience of school failure, and the program—since drastically scaled back under District Attorney Steve Cooley—sought to intervene at a stage before violent criminal behavior has developed.
Debbaudt, who has been married for 20 years and has a 15-year-old son and a 12-year-old daughter, now works as a calendar deputy in the San Fernando Court, near his home.
He concedes his bid for countywide office has opened his eyes to political realities he never encountered as a prosecutor.
“I had no idea that democracy has a price,” he says.
At points he sounds resigned about his chances of forcing Oki into a November runoff.
“I believe we already won this race” by calling attention to the issues involved, he contends, adding:
“Winning wasn’t what it was about.”
Female prosecutors are considered by many who follow judicial elections to be formidable candidates, but Rhonan will have to overcome having been rated “not qualified” by the County Bar panel. That rating, she contends, was the product of a flawed and corrupt process.
She was penalized, she asserts, for being “a woman who is daring to run against an incumbent judge.”
Both Rhonan and Salute—who was also rated “not qualified”—sought indigency waivers that would have allowed them to have candidate statements printed in the ballot pamphlet without paying the printing costs in advance.
The LACBA panel attacked her for the tactic, she says, with some members likening her to the criminals she prosecutes as part of the district attorney’s welfare fraud unit.
With no resources on hand to pay the $65,000 and with no clear standards articulated by elections officials, Rhonan says she felt it was not unreasonable for her to seek the waiver.
Officials denied it, saying Rhonan failed to complete the required paperwork. She retorts that she was unwilling to provide personal information that might become part of a public record and that the Registrar’s Office failed to return her phone calls seeking a resolution to the dilemma.
Like Debbaudt, Rhonan came to the law through a night program after a different career choice. She grew up in New York and Miami, she recounts, and became a truck driver, piloting 18-wheelers through “parts of this country I hope to never see again.”
After earning a degree in psychology, she found a new career as a nuclear medicine technician in Miami and Wisconsin, eventually working her way to the West Coast. But she says she found that in the medical field, “if you’re not a physician you don’t get any respect,” and she attended law school at Western State University in Fullerton.
After earning her law degree, Rhonan spent four years as a Superior Court research attorney and was an Orange deputy city attorney for a similar period before joining the District Attorney’s Office nine years ago.
Rhonan says she will put about $4,000 of her own money in the campaign. Her reports show she raised less than $2,000 for the period ending Jan. 17, including a $1,500 loan from a political action committee headed by Ipsen.
Like Debbaudt, Rhonan says she will consider her effort a success whether or not Oki is forced into a runoff. It has focused public attention on the courts and the administrative issues raised by the May releases, she declares.
“It’s up to the voters to decide what they want,” she comments.
If Debbaudt and Rhonan seem at times pessimistic about their chances, Salute frankly concedes the race was over for him when an Orange Superior Court judge granted Oki’s request for an order barring Salute from being listed as “Temporary Judge” on the ballot.
Salute explains that he has served as a volunteer temporary judge for the Superior Court for the last eight years, sometimes as frequently as four or five times per month. He says he believes he could have mounted an effective campaign had he been able to let voters know about that experience.
His ballot statement indigency application was a part of that campaign strategy, he says, asserting that county elections officials informed him it would not be improper for him to seek the waiver as a means of delaying a final decision about paying the $65,000 until he learned how the courts would rule on his ballot designation.
A graduate of UC Berkeley and Berkeley’s Hastings College of the Law, Salute has been in private practice since 1965. This is his third bid for judicial office, he points out—in 1978 he ran against Los Angeles Municipal Court Judge Elwyn Bennet and in 1982 he opposed Superior Court Judge Leopoldo Sanchez, who had been censured for giving bondsmen presigned bail orders.
Sanchez eventually lost his seat, but not to Salute.
Like Rhonan, Salute is harshly critical of the County Bar panel’s decision to rate him “not qualified” for judicial office. The letter informing him of the rating cited the indigency application, his effort to win a ballot designation of “Temporary Judge,” and his failure to reveal that he holds a private investigator’s license, he says.
“I gave them reasonable explanations for all three of them,” the attorney declares. “They just didn’t want to accept it.”
He noted that the question in response to which the panel suggested he should have revealed the licensure asked about operating a business. He does not operate a private investigator business, Salute says.
Oki’s campaign efforts dwarf those of his opponents. He has hired Fred Huebscher, a consultant with substantial experience in judicial races, to run the effort.
At a West Covina forum for judicial candidates on Sunday sponsored by the League of Women Voters, Rhonan and Debbaudt distributed Xerox copies of material from their Web sites, www.hilaryforjudge.com and www.marc4judge.com.
Oki did not attend the forum, but copies of his slick, stylish color campaign mailer appeared on the literature table. The mailer shows the judge in his robes against a soft-focus background photograph of a law book and a gavel, and does not list a Web address.
A Jan. 20 Disney Hall fundraiser, which reportedly brought in $15,000 for Oki and Wesley, drew many fellow jurists and prominent attorneys. Even Cooley—who has endorsed Wesley, but is not backing anyone in Oki’s race—was there.
Reports show that about 230 judicial officers have made contributions to Oki’s campaign, and his mailer includes a photograph of his parents at an internment camp during World War II and endorsements from Sheriff Lee Baca, County Supervisors Yvonne Burke and Mike Antonovich, and Dukes.
A graduate of Stanford Law School, Oki—who says he could spend as much a $150,000 on the race if forced into a runoff—rejects attempts to characterize him as obsessed with budgetary matters and efficiency statistics.
“I wouldn’t call myself a bean counter,” Oki says. “In an operation of this size I think it’s necessary to look at statistics and seek trends.”
Oki has chaired the court’s Personnel and Budget Committee for the past two years, and he makes no apologies for his concern about budgetary issues. At the time of the May events, he says, the court was facing a fiscal crisis severe enough to threaten layoffs of court staff.
But Oki says he never believed his efforts to resolve the overtime crisis in Div. 30 would lead to defendants being released. He adds that he still does not believe it should have.
Oki says he has been gratified by the support he has received from his colleagues. Many of them, he notes, are concerned that it would set a “bad precedent” if a judge were to be unseated based on a single administrative act.
“That may be our strongest argument,” the judge says.
Oki was appointed to the Citrus Municipal Court by then-Gov. Pete Wilson in 1992 and served as the court’s presiding judge the next year. Wilson named him to the Superior Court in 1997.
Before becoming a judge, Oki was in private practice in Covina and West Covina. He still lives in West Covina.
His wife teaches second grade at a nearby school. They have a son, 25, and a daughter, 21.
Oki says he grew up in a Republican household but “wasn’t very political” as an attorney. He attributes his appointment to the bench to the intervention of a retired Los Angeles Sheriff’s Department chief he met though a slip and fall case he tried in Pomona which involved one of the former chief’s relatives.
They became friends, and the man—who was a law enforcement liaison for Wilson—pushed for his appointment, Oki recalls.
Oki says he is not taking his challengers lightly, despite their limited means. Facing multiple opponents, he says, he is not counting on winning without a runoff.
“I have to assume that [a runoff] is a strong possibility,” he comments, adding:
“I intend to spend what it takes to be sure I’m in it.”
Copyright 2004, Metropolitan News Company