Metropolitan News-Enterprise


Thursday, September 30, 2004


Page 1


CJP Admonishes Placer Superior Court Judge for Suggesting Potential Jurors Lie During Voir Dire


By DAVID WATSON, Staff Writer


A Placer Superior Court judge violated canons of judicial ethics by encouraging potential jurors to lie about their possible racial bias during jury selection, the Commission on Judicial Performance said in publicly admonishing him yesterday.

While accepting the conclusion of a panel of special masters that Judge Joseph W. O’Flaherty acted in a good faith attempt to avoid seating biased jurors, the CJP said his actions in two cases nonetheless merited discipline.

The CJP said the masters’ conclusion was “not beyond discussion.” Noting that the criminal convictions in the two cases were reversed, with appellate jurists describing O’Flaherty’s actions as “grave error,” “astonishing,” and “shocking,” the CJP declared:

“At some point, a judge’s obliviousness to the consequences of the means to a given end may override, as a matter of law, a judge’s statement of subjective good intent.”

One of the cases involved an African American defendant, while in the other the defendant was Iranian. Placer County jury panels are overwhelmingly white.

In the first case, O’Flaherty told jurors that if they harbored a racial bias they were uncomfortable admitting, it would be all right for them to “lie” and make up another reason to avoid serving. In the second, the judge 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.

O’Flaherty conceded at the hearing held before the special masters that his actions were wrong and expressed regret over them. But the Associated Press reported yesterday that, in an interview, the judge asserted his statements did not constitute misconduct.

“I do not feel in any way that it brought down the image of the judiciary,” the news agency quoted the judge as saying. “Quite the contrary. It was an effective way to protect these defendants’ rights.”

Voir dire in the two cases occurred within a period of three months in 1999 and 2000, and O’Flaherty claimed those were the only times he employed the technique. The Third District Court of Appeal rulings reversing the resulting convictions—People v. Mello (2002) 97 Cal.App.4th 511 and People v. Abbaszadeh (2003) 106 Cal.App.4th 642—were only handed down years later.

But the CJP rejected O’Flaherty’s contention that he could not be subjected to discipline because he was guilty only of making a good faith error of law.

While “mere legal error” cannot be a basis for discipline under Oberholzer v. Commission on Judicial Performance (1999) 20 Cal.4th 371, the CJP conceded, it asserted that O’Flaherty “did not make any discrete ruling or decision that was legally incorrect.”

“Rather,” the CJP concluded, “he gave a series of improper directives to the various jury panel members in two separate cases; he engaged in a repeated course of improper conduct. That broad-based wrongful conduct—subjects Judge O’Flaherty to our jurisdiction.”

The CJP added:

“Judge O’Flaherty’s actions constitute misconduct because, as soundly denounced by the Court of Appeal, they manifest, at least, an intentional disregard of the law, a disregard of fundamental rights and an abuse of judicial authority, any and all of which warrant discipline, including under the ‘legal error plus’ standard of Oberholzer.

Nor, the CJP said, should O’Flaherty have learned for the first time when Mello was handed down that his actions were improper. The Mello court, the CJP pointed out, noted that in People v. Holt (1997) 15 Cal.4th 619 the state high court had warned judges they should “closely follow the language and formulae for voir dire recommended by the Judicial Council in the Standards to ensure that all appropriate areas of inquiry are covered in an appropriate manner.”

The CJP went on to observe:

“Judge O’Flaherty repeatedly told the jury panelists to violate their oath, alarmingly unaware of the broader impact those instructions almost necessarily would have on the defendants’ constitutional rights—.Such serious inattention constitutes an intentional disregard of the law.”

The CJP also rejected O’Flaherty’s contention that, in view of the two appellate opinions and the publicity they generated in Placer County, discipline was unnecessary. It declared:

“[W]e conclude there was conduct that was inconsistent with canon 2A, requiring judges to ‘respect and comply with the law’ and to ‘act at all times in a manner that promotes public confidence in the integrity’ of the judiciary, as well as canon 1, imposing a similar obligation on a judge to uphold the integrity of the judiciary.

“In our view, therefore, it is necessary for this commission publicly to express its views that the instructions to lie, however well intended, are incompatible with fundamental principles of the administration of justice. They constitute unjudicial conduct that is prejudicial to public esteem for the judicial office, and improper conduct by a judge that reflects an intentional disregard of the law, a disregard for fundamental rights and an abuse of judicial authority. This is different from the appellate court’s rulings concerning the defendants’ constitutional rights in the underlying prosecutions.”

The CJP is composed of 11 members, including a Court of Appeal justice, two superior court judges, and two attorneys. There is currently one vacancy.

The appellate jurist, Justice Vance W. Raye of the Third District Court of Appeal, did not participate in yesterday’s ruling, nor did one of the non-lawyer members, Patricia Miller. The remaining members—Orange Superior Court Judge Frederick P. Horn, Santa Clara Superior Court Judge RisÎ Jones Pichon, attorneys Marshall B. Grossman and Michael A. Kahn, and public members Crystal Lui, Jose C. Miramontes, Penny Perez, and Barbara Schraeger voted in favor of the discipline imposed.

The special masters, appointed by the Supreme Court, were First District Court of Appeal Justice Sandra Lynn Margulies, Glenn Superior Court Judge Donald Cole Byrd, and Sacramento Superior Court Judge Michael T. Garcia. With the exception of one part of a single sentence, suggesting that O’Flaherty had reason to suspect “concerns about jury bias were causing minority defendants to plead guilty” in Placer County, the CJP adopted the masters’ factual findings and legal conclusions in their entirety.

The testimony the masters’ heard did not support finding that O’Flaherty had a legitimate concern about defendants pleading guilty due to perceived jury bias at the time of his actions, the CJP said, since the only possible instance of such a plea the judge cited took place either after the first of the two cases in which he gave the controversial instructions or after both of them.

O’Flaherty’s lawyer, James A. Murphy of Murphy, Pearson, Bradley and Feeney in San Francisco, did not return a call seeking comment yesterday. But he 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.

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.

In reversing the second conviction of the two convictions, 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, 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.”


Copyright 2004, Metropolitan News Company