Friday, February 11, 2005
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Masters Told They Should Find Ross Lied in Discipline Hearing Testimony
By DAVID WATSON, Staff Writer
The special masters considering misconduct charges against Los Angeles Superior Court Judge Kevin Ross should find not only that Ross violated canons of judicial ethics, but that he lied in his testimony before them to cover it up, a lawyer for the Commission on Judicial Performance told the panel yesterday.
Trial Counsel Jack Coyle, in harshly worded arguments in the courtroom at the downtown Reagan Building, said Ross “wasn’t telling the truth” in the versions of events he gave during his testimony at a four-day hearing that concluded Nov. 18.
“Honesty is a minimum qualification for any judge,” Coyle declared. “I think it’s fair to say Judge Ross lied to us and he should not be allowed to get away with it.”
Ross’ testimony that he was in a production company trailer when he signed arbitration awards in connection with his performance as a judge in a pilot for a courtroom television series was “unbelievable,” Coyle contended. Ross testified, he noted, that the documents were among many given to him to sign during the filming and that he did not clearly understand what they were.
Ross has claimed he was unaware that he was violating judicial ethics rules by serving as an arbitrator. The format for the proposed “Mobile Court” series called for actual small claims litigants to permit a television jurist to rule on their disputes at the locations where the underlying events occurred.
“He made up this story about being in the make-up trailer,” Coyle declared, pointing out that the date next to Ross’ signature on the arbitration forms appeared to be in his own handwriting and was the Monday following the weekend filming.
But Coyle conceded he did not notice the discrepancy in the dates during the November hearing and failed to cross-examine Ross about it.
Ross, Coyle contended, also told “layers of lies” in an effort to deflect responsibility for his misdeeds in jailing an alleged traffic offender who he believed had presented false documents in support of her claim a ticket was issued to another driver with the same name.
Ross testified, Coyle said, that Debra Fuentes gave him insurance documents that were the basis for his decision to charge her with violating a Vehicle Code Sec. 16030(a), which criminalizes presenting false evidence of financial responsibility. But he claimed that he returned them to her.
“There never were any insurance documents,” Coyle argued. Ross, he claimed, invented that story after realizing that the code section only applied to such documents.
Ross’ lawyer, Long Beach attorney Edward P. George Jr., conceded to the masters that the judge was guilty of misconduct in agreeing to arbitrate disputes as part of the television pilot and his handling of the Fuentes matter. But he argued the misconduct was only prejudicial, not willful.
And he said the CJP had failed to establish other alleged violations by the requisite standard of clear and convincing evidence.
Ross is also charged with ex parte contact with a defendant, disregarding the rights of two defendants to be represented by counsel, two unauthorized absences from court, and commenting on pending cases during appearances on the public television program “Life and Times Tonight.”
George argued that only conduct occurring in court can be deemed willful under the standards for disciplining judges. The “Mobile Court” filming did not.
The lawyer conceded that a judge lacks power, on his own initiative, to add charges against a defendant who appears before him. But he said the Fuentes case came to the CJP’s attention only because Ross himself realized his mistake and sought the help of Site Judge David Sotelo in rectifying it.
“This is a case that Judge Ross said from the get-go that he made a mess of,” the lawyer conceded. “It is not a case where Judge Ross did something wrong and tried to hide it.”
Ross’ admission of error and attempts to rectify the mistake were mitigating factors the masters could consider in deciding whether the misconduct was willful or merely prejudicial, George said—an interpretation of that distinction with which Coyle sharply disagreed.
The three masters—San Bernardino Superior Court Judge Michael Smith, Fourth District Court of Appeal Justice Judith Haller, and Ventura Superior Court Judge Vincent J. O’Neill Jr.—queried both lawyers repeatedly about the charges involving the four “Life and Times” appearances.
Ross was a frequent guest on the KCET program. In the questioned segments he discussed the options he faced in the case of a juvenile court defendant who appeared before him, the issues involved in a sexually violent predator case then before the state Supreme Court, and issues raised by the prosecution of police officers for crimes.
George noted that while Canon 3B(9) of the Code of Judicial Conduct declares that a judge “shall not make any public comment about a pending or impending proceeding in any court,” it also contains exceptions which allow “explaining for public information the procedures of the court” and “discussing in legal education programs and materials, cases and issues pending in appellate courts.”
George and Coyle clashed over whether those exceptions should be construed broadly or narrowly, where the line between discussing “procedure” and discussing “substance” is to be drawn, and whether “legal education” means educating the public about the legal system or, as O’Neill put it, just “judges teaching judges or judges teaching lawyers.”
Haller said there was little if any case law addressing those issues.
KCET, George contended, is an “educational” television station. In answer to a question from O’Neill, the lawyer said similar commentary on CNN or Fox programs would not come within the “education” exception.
George also argued that if the exceptions do not cover the type of comments Ross made during the television broadcasts, then the canon is unconstitutional as applied to such comments.
Haller, who chaired the panel, noted that the masters were to have submitted their findings of fact and conclusions of law to the CJP by Feb. 22. The CJP determines what discipline—if any—is warranted.
But she said it is unlikely they will be able to meet that deadline, adding they will seek an extension.
Copyright 2005, Metropolitan News Company