Metropolitan News-Enterprise


Thursday, January 6, 2005


Page 1


Judge Chided for Jailing Defendants Who Lacked Notice of Hearings


By KENNETH OFGANG, Staff Writer/Appellate Courts


The Commission on Judicial Performance publicly admonished Kern Superior Court Judge Stephen P. Gildner yesterday, saying he had improperly issued bench warrants for three defendants without allowing them to explain why they did not appear at the scheduled date and time.

Gildner failed to promote public confidence in the integrity and impartiality of the judiciary, and violated his ethical duty to allow every litigant the “full right to be heard according to law,” the commission said in a 10-0 decision.

The commission disclosed that it had heard argument in the matter last month, after Gildner—represented by Edith R. Matthai of the Los Angeles firm of Robie & Matthai—waived his right to formal proceedings and contested the proposed discipline in a confidential appearance before the commission pursuant to CJP Rule 116. 

The CJP found that Gildner, a judge since 1990, mishandled a pair of March 2001 cases in which the Public Defender’s Office had moved to withdraw due to a conflict of interest.

The first case involved a defendant named Richard Jimenez, who was scheduled to appear for a pre-preliminary hearing conference. That conference was scheduled for 9 a.m. on March 7, but the Public Defender’s Office requested an 8:30 a.m. hearing that day on its motion to withdraw.

Warrant Issued

When the defendant did not appear by 8:45, the judge—over the objections of the deputy public defender, who questioned whether the defendant had been notified of the earlier hearing time—ordered that bail be forfeited and a warrant issued. Jimenez, the commission found, arrived while the 9 a.m. calendar was being called and was taken into custody.

“Judge Gildner told the bailiff to put the matter over; when defense counsel asked that the matter be recalled that day, Judge Gildner refused,” the commission explained.

In a second matter, that of Pablo Ramirez, the defendant did not appear for a hearing on the public defender’s motion, held six days before a pre-preliminary hearing conference at which Ramirez had been ordered to appear. The deputy public defender asked that the matter be put over for the day the defendant was ordered to appear, but Gildner again insisted on ordering bail forfeiture and arrest, and did not allow the defendant to explain, when he appeared as ordered on the later date, that he had not been told to come to court for the earlier hearing, the commission found.

The CJP rejected the judge’s explanation that he had to act as he did because the defendants would otherwise be unrepresented for a time or would be represented by conflicted counsel, either of which would violate the Sixth Amendment.

“Judge Gildner is an experienced jurist and former prosecutor with many years of experience in the field of criminal law,” the commission wrote. “There was nothing that suggested either defendant had notice.  Under such circumstances, the warrants could not issue...No reasonable or reasonably competent judge would assume or conclude otherwise.”

The judge could have addressed his Sixth Amendment concerns by simply continuing the hearings with notice to the defendants, the commission said, adding that Gildner’s actions were at odds with his expressed concern for the defendants’ constitutional rights and that he appeared to be “callous and punitive” in refusing to allow the defendants to explain themselves.

Third Matter

The commission also found Gildner at fault in connection with a December 2003 matter involving a defendant named Curtis Moore who claimed he was a few minutes late because he had gone to the wrong courtroom. Gildner revoked his bail, and he spent two days in jail before another appearing before another judge to have his trial date set.

“Judge Gildner’s refusal under the circumstances to allow Mr. Moore to present evidence that his late appearance was unintentional or that mitigating circumstances existed constituted misconduct,” the commission said.

The commission acknowledged, with respect to all three matters, that no law requires a judge to grant an immediate hearing when a defendant is late to court. But Gildner’s conduct, the commission said, was arbitrary and capricious under the circumstances “and creates the appearance of substantial unfairness.”

The commission also criticized Gildner for a now-discontinued practice of telling defendants at pre-preliminary hearing conferences that they would never again receive as lenient a plea offer as that which was available at that time.

  A judge or prosecutor may treat a defendant’s willingness to plead guilty at an early stage of the proceedings as a mitigating factor, generally justifying a more lenient plea offer than might be available later, the commission acknowledged. But Gildner’s statement was inaccurate—the judge acknowledged that some defendants were given plea offers at later stages that were even more lenient—and brought the court’s integrity into question, the commission said.


Gildner, 54, was a Kern County deputy district attorney from 1979 to 1981 and from 1983 to 1988. He was in private practice in Corona from 1977 to 1979 and in Bakersfield from 1981 to 1983 and from 1988 until then-Gov. George Deukmejian appointed him to the Superior Court two years later.

The CJP is chaired by Third District Court of Appeal Justice Vance W. Raye. Los Angeles attorney Marshall B. Grossman is vice chairman, and the other members are Orange Superior Court Judge Frederick P. Horn, San Francisco attorney Michael A. Kahn, Santa Clara Superior Court Judge RisÎ Jones Pichon, and public members  Crystal Lui, Patricia Miller, Jose C. Miramontes, Penny Perez, and Barbara Schraeger.

There is one vacancy because the governor has not replaced a public member who resigned and whose term expires next month.


Copyright 2005, Metropolitan News Company