Friday, September 30, 2016
CJP Publicly Scolds Judge Clarke for Juror Comments
By KENNETH OFGANG, Staff Writer
The Commission on Judicial Performance yesterday publicly admonished Los Angeles Superior Court Judge Edmund W. Clarke Jr. for comments made to and about potential jurors during jury selection.
The commission said Clarke’s comments to four venire members were “discourteous and undignified,” and that he had acted improperly in requiring one of them—who had criticized her treatment by the courtroom clerk—to remain in the hallway after excusing her from service in that trial. Charges related to a fifth prospective juror were rejected, in accordance with the findings of a panel of special masters.
The judge’s attorney said he would seek review by the state Supreme Court.
The commission disagreed with a panel of special masters, who found that Clarke’s comments to one panelist constituted improper action—the least serious level of misconduct under the CJP’s rules—but that there was no other misconduct.
“For many members of the public, jury duty is their only direct contact with the court system,” the commission said. “When a judge engages in a pattern of discourteous and undignified treatment of jurors, public confidence in the integrity and impartiality of the judicial system is eroded.”
The commission noted that Clarke had previously received private discipline for making similarly inappropriate remarks to a pro per defendant. The combination of the current findings and the prior discipline “convinces us that a public admonishment is the appropriate discipline.”
The charges stemmed from a four-defendant, gang-related murder case. One of the potential jurors contended on her juror questionnaire that she suffered from anxiety, and she told the judge that his clerk had made comments that offended her and others on the panel, including making fun of her reason for asking to be excused.
Clarke dressed the woman down in the courtroom, defending the clerk, and asked the venire member to remain outside the courtroom. This action, the judge and his lawyers argued to the commission, was not improper, because she would have had to report back to the jury room in any event, and the judge claimed he had a duty to further inquire into her claims regarding the clerk.
The commission, however, said Clarke failed to display the decorum that the public expects of a judge. Clarke’s treatment of the woman was “disparaging and retaliatory” and was not an appropriate response to her “simply voicing a complaint about how a clerk was treating jurors.”
Anger and Retaliation
The CJP also rejected Clarke’s justification for having the woman wait in the hall. There was clear and convincing evidence, the commission found, that the judge acted “out of anger and in retaliation for her having criticized his clerk.”
This was willful misconduct, the CJP found, rejecting the argument made by the Alliance of California Judges in an amicus brief that Clarke had a duty to defend a challenge to the clerk’s “competence.” As a citizen, the commission said, the woman had the right to question the performance of a public servant.
With the respect to the other matters, the commission found that Clarke:
•Was discourteous in suggesting that a potential juror was exaggerating her difficulties with the English language, and that this constituted improper action;
•That he engaged in prejudicial misconduct by joking about the financial circumstances of a potential juror, to the point of revealing how little money she said in his questionnaire he had in his bank account, conduct that the commission found not to be humorous, but rather to be “manifestly discourteous and undignified”;
•That he was similarly discourteous to a another juror, noting that the $33 in his bank account was a “little bit more than the other gal”; and that this constituted prejudicial misconduct; and
•That the judge did not engage in misconduct by making a humorous comment about a film project that a potential juror explained she was engaged in. The remark about the film being “PG” “might have been better left unsaid,” the commission commented, but was not grounds for discipline.
Edith Matthai, who represented Clarke along with San Francisco attorney Kathleen Ewins, said in a statement:
“The Commission’s decision to substitute its judgment for that of the special masters, who heard the testimony, saw the witnesses and weighed the evidence is unfortunate. The commission acknowledges that it made most of its factual findings based on the transcript and rejects the conclusions of the masters who based their conclusions on far more than the printed words.
The decision chills the spontaneous and human interaction that is a part of jury selection.”
Copyright 2016, Metropolitan News Company