Metropolitan News-Enterprise


Thursday, December 28, 2006


Page 1


Appeals Court Slaps Trial Judge for Calling It ‘Kangaroo Court’


By a MetNews Staff Writer


The Third District Court of Appeal yesterday sent a criminal case back to the San Joaquin Superior Court for resentencing, and in the process chastised the trial judge for referring to the appeals panel as a “kangaroo court.”

The Court of Appeal found that the remark by retired San Joaquin Superior Court Judge K. Peter Saiers, who continues to hear cases occasionally, was “perjorative” and violated the Canons of Judicial Ethics, which require all judges to uphold the integrity of the judiciary.

The defendant, Donald L. Zackery, was originally charged with assault with a deadly weapon—an automobile—on a peace officer, evading an officer with damage to property, and drunk or drugged driving, with two “strike” priors. His attorney negotiated an arrangement in which he would plead no contest to the assault and to evading a pursuing officer, one of the two strikes would be dismissed, and he would be sentenced as a second-strike offender to six years in prison.

During a change of plea hearing, Saiers asked the prosecutor:

“You’re going to dismiss Count Two”—the original evading-with-damage-to-property charge—“aren’t you?”

When the prosecutor responded, “No, it’s a strike case,” Saiers replied:

“Oh, that’s right. You can’t offend the kangaroos up there in kangaroo court,” the record showed.

Justice Richard Sims III, writing for the Third District, said:

“We will give Judge Saiers the benefit of the doubt and assume he was referring to this court, not the Supreme Court.”

But then Sims wrote:

“Reading a little between the lines, it appears that Judge Saiers’s ‘kangaroo court’ remark was provoked by his frustration at not being able to dispose of a pending case in a way he thought sensible. It would appear that, in his eyes, this court was a naive, ivory-tower, obstructionist, oblivious to the realworld problems of trial courts faced with staggering caseloads.

“This view is not accurate.”

Oath Cited

Sims explained:

“As former trial judges, we have all experienced the stressful crush of pending cases. We are also aware of the desperate plight of the San Joaquin County Superior Court, which, until recently, had not been allocated a new judicial position in two decades, despite significant population increases and rising caseloads.”

The justice continued:

“But trial judges must understand this overarching fact about the Court of Appeal: despite our awareness of and sympathy for your plight, we have no warrant to disregard the law. Rather, we have all taken an oath to enforce it.”

Sims concluded:

“And so, if a trial judge violates the law, even in the name of short-term efficiency, matters are simply made worse. Things have to be done again. More lawyers must be hired, more judges involved, more transportation of prisoners, etc. All at taxpayer expense. It is more expensive to do things twice than to do them once correctly.

The truth of the matteris that Judge K. Peter Saiers has wasted taxpayers’ dollars.”

‘Replete With Error’

Following Zackery’s change of plea and sentencing, the Court of Appeal appointed Sacramento attorney William Davies as appellate counsel. Davies filed a Wende brief informing the court that he found no arguable issues in favor of Zackery, and requested the court to review the record and determine whether there were any arguable issues on appeal.

After reviewing supplemental briefs which it requested, the Court of Appeal found the record “replete with error.”

The court struck part of the sentence and remanded the case for resentencing after finding that Saiers sentenced Zackery on a count of which he was not convicted and the trial court clerk unlawfully included in the minutes of Zackery’s sentencing various matters, including a number of fines, that were never orally imposed by Saiers in Zackery’s presence.

Saiers was unavailable for comment. Davies told the MetNews he does not comment on cases.

Presiding Justice Arthur G. Scotland concurred in the opinion. Justice Harry Hull wrote a separate opinion consisting in its entirety of the following:

“I concur in parts I through V of the majority opinion. As to part VI, I agree the trial judge’s comment was a violation of Canon 1 of the California Code of Judicial Ethics.”

The case is People v. Zackery, 06 SOS 6334.


Copyright 2006, Metropolitan News Company