CJP Slates Hearing in Proceedings Against Placer Judge

Tuesday, January 27, 2004

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CJP Slates Hearing in Proceedings Against Placer Judge

By a MetNews Staff Writer

The Commission on Judicial Performance has scheduled a hearing before a panel of special masters on charges that a Placer Superior Court judge committed misconduct by suggesting that potential jurors in two cases make up excuses to avoid serving if they felt racial bias against the defendants.

The commission said in a release yesterday that that the Supreme Court had appointed First District Court of Appeal Justice Sandra Lynn Margulies. Glenn Superior Court Judge Donald Cole Byrd, and Sacramento Superior Court Judge Michael T. Garcia to hear the case of Judge Joseph W. O’Flaherty and make appropriate findings.

Once the panel of masters hears evidence, it will have 90 days to report its findings to the commission, which will render a final decision, subject to review by the state Supreme Court.

The hearing will take place March 10 at the Hiram W. Johnson State Building in San Francisco and will begin at 9 a.m.

The commission is represented in the matter by Trial Counsel Jack Coyle and the judge by James A. Murphy and Harlan B. Watkins of Murphy, Pearson, Bradley and Feeney in San Francisco.

Murphy told the MetNews after the commission brought formal proceedings that the judge requested a hearing rather than accept the commission’s offer to stipulate to a public admonishment.

O’Flaherty used the challenged language only twice, Murphy said. In both cases, the resulting convictions were reversed by the Third District Court of Appeal.

In reversing the second conviction, which involved an Iranian defendant, the appeals court said it was providing a copy of its decision to the commission in order for it “to determine whether Judge O’Flaherty’s actions constitute actionable judicial misconduct.”

In both cases—the first involved an African American defendant—O’Flaherty told jurors he would not ask them to openly admit to racial bias. Instead, he advised them to come up with another excuse to avoid service.

In addressing potential jurors for the trial of Joy Ann Mello, subsequently convicted of aiding and abetting the robbery and false imprisonment of a gas station attendant, and of being armed with a firearm in the commission of those offenses, O’Flaherty said jurors who doubted their ability to fairly judge the African American defendant should “lie” by citing “some other reason to get excused.”

Noting that jurors might find it “insulting and embarrassing to raise your hand and say I’m a racist,” the judge commented:

“It doesn’t take a rocket scientist to figure out how to get excused, if you put your mind to it, and I’d rather have you do that than sit on the jury if there’s a problem in this area.”

In the case of Mohammad Ali Abbaszadeh, later convicted of two counts of grand theft by false pretenses and one count of selling securities by means of false statements, O’Flaherty did not suggest that jurors lie, but said they should “do whatever you have to do to get off the jury” if they felt biased against the defendant because of his race.

Murphy said O’Flaherty was “vilified” by the Third District without having an opportunity to defend his conduct. He abandoned the practice as soon as it was condemned in the Mello decision in April of 2002, the attorney said.

The voir dire in Mello’s case occurred in December of 1999, and the Abbaszadeh voir dire in February of 2000.

“Judge O’Flaherty never had an opportunity to be heard in the Third District Court of Appeal, and yet they went ahead and passed judgment on him,” Murphy declared.