Metropolitan News-Enterprise


Wednesday, February 10, 2010


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CJP Charges Placer Jurist With Willful Misconduct




The Commission on Judicial Performance said yesterday it has charged Placer Superior Court Judge Joseph O’Flaherty with willful misconduct, conduct prejudicial to the administration of justice, and improper action.

In a notice of formal proceedings, the commission charged that the judge abused his authority by calling a small claims plaintiff back into court after his case was dismissed and ordering him to stay away from the defense witnesses, even though there were no allegations of harassment made during the hearing.

This will be the judge’s second set of formal proceeding before the commission. O’Flaherty, 64, was publicly admonished in 2004 for telling potential jurors it was acceptable for them to lie in order to avoid serving on juries that would try minority defendants.

In the December 2008 small claims case leading to the current proceeding, O’Flaherty dismissed a suit brought by Scott Herold, a used car dealer, claiming, among other things, that Golden One Credit Union had interfered with his sale of an automobile.

O’Flaherty dismissed the case, and Herold left the courtroom.

As the commission recounted in its notice, made public yesterday:

“Two employees of the credit union appeared on its behalf. During the proceeding, the employees made no allegations that Mr. Herold had harassed or threatened them at the credit union or elsewhere. At the end of the proceeding, you dismissed the case and Mr. Herold left the courtroom. The two credit union employees then expressed concerns that Mr. Herold was ‘going to come after’ them. Based upon these statements, you instructed your bailiff to ‘bring that guy back,’ which the bailiff did. No case was pending against Mr. Herold when you had him brought back to the courtroom.”

What ensued, the commission continued, was a warning that while the judge was “not going to issue a formal restraining order which I have the right to do,” such an order would issue if there was “any contact between you and these three people, in the next few months.” After Herold expressed concern that he was in effect being barred from doing business with Golden One, where he had accounts, the judge—after ascertaining that the credit union had a branch in a different part of Roseville—said he had to stay away from the branch where the witnesses worked.

The minute order stated:

“Golden One is dismissed from action. Plaintiff to have no contact with defendants or restraining order will be issued. Plaintiff to stay away from Santa Clara Drive branch for 90 days.”

The CJP charged that O’Flaherty’s actions “constituted an abuse of authority, embroilment and a denial of the right to notice and the opportunity to be heard, in violation of canon 1 (a judge shall uphold the integrity of the judiciary), canon 2A (a judge shall respect and comply with the law), canon 3B(2) (a judge shall be faithful to the law), and canon 3B(7) (a judge shall accord to every person who has a legal interest in a proceeding the right to be heard).”

O’Flaherty’s attorney, James A. Murphy of San Francisco, said the judge requested formal proceedings, rather than accept a public admonishment as proposed by the commission, because “he wants the entire matter brought out into the open.”

Murphy noted that the proceeding was videotaped, and said “it was clear from what Judge O’Flaherty was telling Mr. Herold he was forewarning him to avoid any contact with the three women”—the two who worked at the credit union plus the prospective purchaser of the car—“otherwise the next step would be their getting a temporary restraining order against him, which would have serious repercussions.”

The videotape, Murphy said, shows that one of the women was crying and expressing fear for her safety, while another expressed concern because Herold knew where she lived. Under the circumstances, including the fact that the proceeding took place on a winter evening, “the judge said he felt he had to do something.”

The attorney also took issue with the court’s characterization of the proceedings. Murphy said he would argue that since there was no final judgment at that point, it was entirely proper for the judge to bring Herold back into the courtroom and take the necessary steps to protect the women.

O’Flaherty’s formal answer to the charges is due Feb. 22. The Supreme Court will then appoint a panel of special masters to hear evidence and make findings, which will then be reviewed by the commission.

In its previous admonishment of O’Flaherty, the commission said the judge mishandled the issue of potential racial bias in two cases, one involving an African American defendant and the other a person of Iranian descent, both of which resulted in convictions being reversed on appeal.

In one case, the judge told panelists that 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.

The commission found that the judge acted in a good faith attempt to avoid seating biased jurors, but declared that “[a]t 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.”


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