Tuesday, March 8, 2016
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Judge Clarke Denies He Demeaned Possible Jurors
By KENNETH OFGANG, Staff Writer
A Los Angeles Superior Court judge yesterday forcefully denied allegations by the Commission on Judicial Performance that he demeaned potential jurors who were seeking to be excused from sitting in a four-defendant, gang-related murder case.
Judge Edmund W. Clarke Jr. told the three special masters acting as factfinders in the case that while he “walked into” needless complications by making extraneous comments that he thought were humorous, he did not use a mocking tone or raise his voice, or otherwise act in a manner that would have made a reasonable person uncomfortable.
An attorney for Clarke, Kathleen M. Ewins of Long & Levit in San Francisco, had earlier told the masters that Clarke acted reasonably in regard to the matters alleged by the commission, including with respect to what appears to be the most serious charge, that he detained and intimidated a potential juror because she had criticized his courtroom clerk.
Requiring the venire member, Sarah Newton, to remain near the courtroom until he had time to address her complaint “wasn’t detention,” Ewins said, because even if he had excused her, she would still have to report back to the jury assembly room for possible assignment. Clarke, the attorney said, had no choice under the circumstances but to have Newton wait in the vicinity until he could investigate her complaint.
Newton, an actress and blogger, claimed that the clerk had made comments that offended her and others on the panel, including making fun of her for asking to be excused because she suffered from anxiety.
Ewins explained that Clarke had chosen to ask for a formal evidentiary hearing, rather than accept the public admonishment proposed by the commission, because the wording of the CJP’s proposed order was “inaccurate” and “unduly harsh.” The commission’s proposed disposition of the matter could not be accepted by a judge “who believes in the American system of justice as much as Judge Clarke does,” she said.
Commission attorneys waived their right to make an opening statement.
Clarke admitted in his testimony that Newton’s comments made him upset.
“She was under my skin,” he told the panel. “I walked into a problem.”
But he was unapologetic about what he said was the need to address Newton’s complaints.
“There are many things I could have done,” he said, but he “had to assess whether there could be any validity to what she was saying.”
Asked by commission trial counsel Mark Lizarraga why he didn’t advise her to take her complaints to the court’s executive office, he said he saw “no point” in doing so because he determined she had “no credible complaint.
Clarke said he “had the impression [Newton] was doing improv with me,” and that the claim of anxiety was invented because Newton wanted to get out of jury duty “as fast as she could.”
Questioned by Lizarraga as to what qualified him to make those kinds of judgments, Clarke said “judges read body language, and this body language wasn’t consistent with anxiety.” Newton was looking straight him and commenting directly, in a clear voice, and wasn’t stuttering or shifting in her movements, he said.
He added that he was familiar with anxiety disorder as a result of having tried medical malpractice cases involving mental health professionals before he was appointed to the bench. Newton, he said, did not claim to be suffering from any such disorder, only from a generalized anxiety.
Newton insisted in her testimony that she did, in fact, suffer from anxiety, particularly when she learned that the trial would likely last six weeks. She also faulted Clarke’s clerk, saying she heightened her discomfort by speaking loudly when addressing the panel in the hallway where it assembled.
But under cross-examination by an attorney for Clarke, Edith Matthai of Robie & Matthai, Newton acknowledged that there was a good deal of noise in the hallway. But she insisted that the clerk yelled at her while she was “in the middle of an anxiety attack” and used a “snarky” tone, causing a number of others to comment on the clerk’s rudeness.
The judge, she added, turned her anxiety into “a public joke.”
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