Metropolitan News-Enterprise


Friday, January 22, 2010


Page 1


Supreme Court Reinstates Valley Lawyer’s Stalking Conviction


By STEVEN M. ELLIS, Staff Writer


The California Supreme Court yesterday reversed an appellate court decision throwing out a suspended Sherman Oaks attorney’s convictions for stalking, burglary and solicitation to commit kidnapping over her campaign against the foster parents caring for her daughter.

Ruling that the mere appearance of bias by a judge does not require recusal under the federal Constitution’s Due Process Clause, the high court’s justices unanimously reinstated the convictions of Marilyn Kaye Freeman, sentenced to six years in prison.

The Fourth District reversed Freeman’s convictions in 2007, ruling that her trial was tainted by the specter of bias because the presiding trial judge had previously disqualified himself at a bail hearing because of his friendship with another judge Freeman was accused of stalking.

When those suspicions later were determined to be unfounded, the presiding judge for the criminal courts in downtown San Diego reinstated Superior Court Judge Robert O’Neill to preside over the case, despite Freeman’s protests.

The Fourth District’s Div. One, in an opinion by Judith L. Haller, held that the circumstances of this case required O’Neill to recuse himself and that his failure to do so violated Freeman’s due process rights.

But the California Supreme Court, in an opinion by Justice Carlos Moreno, said the case did not present the “extreme facts” that would require judicial disqualification on due process grounds in light of the U.S. Supreme Court’s opinion last year in Caperton v. A.T. Massey Coal Co., Inc. 129 S.Ct. 2252.

Federal Precedent

While Freeman’s appeal was pending, the court in Caperton ruled that due process was violated by a West Virginia high court justice’s refusal to recuse himself from a case involving a $50 million damage award against a coal company whose chairman had spent $3 million in support of the justice’s election campaign. The justice in that case cast the deciding vote overturning the award, and the U.S. Supreme Court held that, under the “extreme facts” of the case, “the probability of actual bias rises to an unconstitutional level.”

Moreno wrote that an “exhaustive review” of Caperton compelled the conclusion that “while a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient. Instead, based on an objective assessment of the circumstances in the particular case, there must exist ‘the probability of actual bias on the part of the judge or decisionmaker [that] is too high to be constitutionally tolerable.’”

State Statutes

The justice said that where only the appearance of bias was at issue, a litigant’s recourse is to seek disqualification under state statutes. He also opined that most disputes over disqualification would be resolved without resorting to the Constitution because the codes of judicial conduct provide more protection than due process requires.

Noting that Freeman waived her statutory disqualification challenges when she withdrew them in proceedings before O’Neill and his presiding judge, Moreno wrote:

“In this case, defendant had a statutory remedy to challenge Judge O’Neill’s refusal to disqualify himself and failed to pursue it. Having forfeited that remedy, she cannot simply fall back on the narrower due process protection without making the heightened showing of a probability, rather than the mere appearance, of actual bias to prevail.”

Exceptional Facts

Moreno also rejected Freeman’s claim that O’Neill’s acceptance of her case after he had once recused himself presented the kind of exceptional facts that demonstrated a due process problem.

“At most, Judge O’Neill’s decision to accept reassignment of defendant’s case may have violated the judicial disqualification statutes that limit the actions that may be taken by a disqualified judge…,” he wrote. “But, without more, this does not constitute the kind of showing that would justify a finding that defendant’s due process rights were violated.”

Freeman’s attorney, Carl M. Hancock of San Diego, had not yet reviewed the opinion and declined comment. Representatives of the Attorney General’s Office could not be reached for comment.

Freeman was placed on interim suspension from the State Bar as a result of her convictions. She also agreed last year to accept a public reproval for failing to return monies paid by clients she could no longer represent once she was incarcerated.

The case is People v. Freeman, 10 S.O.S. 235.


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