Monday, July 25, 2016
Page 8
PERSPECTIVES (Column)
Percy Anderson: Is He Fit to Be a Judge?
By ROGER M. GRACE
A factor in the case of United States of America v. Leroy Baca is mental instability.
No, I’m not referring to the former Los Angeles County sheriff, who is charged with lying to federal investigators, and is in the early stages of Alzheimer’s disease. I’m talking about the judge in the case, Percy Anderson.
Anderson is the judge who last Monday rejected the plea bargain under which Baca could have been incarcerated for anywhere between zero days to six months. That, Anderson snorted, was not enough punishment. His remarks indicated that he wanted to hold Baca accountable for crimes with which he was not charged and, in fact, of which investigators had exonerated him.
Baca will return to court a week from today and will have the opportunity to withdraw his guilty plea, entered in February, pursuant to the plea bargain. It’s fairly predictable he’ll do that, rather than submit to Anderson’s anticipated imposition of a sentence of five years in prison, which he meted out to former Undersheriff Paul Tanaka.
The difference between Baca and Tanaka is that the former merely disclaimed knowledge in an interview with investigators of two matters, his false statements in no way prejudicing the federal government’s probe of Los Angeles County jail conditions, while Tanaka, who controlled day-to-day operations of the department, willfully and materially obstructed justice.
It is doubtful that many judges in the Central District other than Anderson, if any of them, would have scotched the plea arrangement denounced by Anderson.
Anderson is obviously a man with acute psychological problems. This can be gleaned from comments posted by those who identify themselves as attorneys on The Robing Room website—which ranks Anderson as the fifth worst U.S. District Court judge in the nation (behind Hon. William D. Keller, Manuel L. Real and Otis D. Wright II, who also sit in the Central District of California, and Ivan L.R. Lemelle, of the Eastern District of Louisiana).
Eliminating comments from persons designated as “Others” (non-attorneys), as well as three from lawyers—one who speculates as to Anderson’s sexual orientation, another who conjectures as to conduct of the judge’s parents, and a third who slams President George W. Bush’s judicial appointments, in general—below is what is being said about Anderson during the period of 2012-15, going from the most to least recent. (There are no comments, yet, from members of the bar in 2016.)
Criminal Defense Lawyer
He is a former AUSA [assistant United States attorney] who clearly takes sides with the government. If your client is a criminal defendant, do not expect a fair trial in front of this judge. He’s not even subtle about his rulings. On top of everything else, and perhaps his worst quality, is his lack of judicial temperament. In short, he’s a punk and a bully.
Criminal Defense Lawyer
This judge is an arrogant bully with no regard for his role as an impartial human element of justice. He is more interested in asserting power than administering effective justice. He harms both the public and those before him. He should be impeached for his blatant attempts to hinder justice, particularly with habeas corpus motions. He’s a hall monitor.
Civil Litigation - Private
I’ve been a litigator in state and federal courts for 37 years. Without question, Judge Anderson is the most offensive, laziest, most arrogant, insulting and imbalanced judge that I have ever had the misfortune to stand before. As other comments have suggested, if there is any chance of bailing out before this guy gets his fangs into you, seize the opportunity. Why has the CDCA [Central District of California] attracted so many of these types? Judge Anderson deserves his ranking as one of the worst federal judges in the U.S.
Civil Litigation - Private
I have appeared before hundreds of judges. Judge Anderson is the creepiest, dumbest, most biased, ignorant, egomaniacal and pompous judge I have ever been before. He truly is a disgrace to the federal bench. The only contribution that he could make to improve the federal judiciary would be to retire. The worst judge, bar none.
Civil Litigation - Private
I have never posted about a judge before. After my experience with Judge Anderson, I found this site just because I wanted people to know about this wreck of a judge. Lo and behold...I found a group of attorneys with the same experience.
I have been a civil litigator for 20 years. I have been in front of hundreds of judges. I thought Judge Manny Real was the worst federal judge ever...maybe not. Judge Anderson is a piece of work. He is openly contemptuous and rude. He fires off crazy OSC orders just to pressure parties. He “spins” the facts to suit his purposes. He and Kim Jong-un should party together.
Criminal Defense Lawyer
Yes, efficient. Mussolini made the trains run on time. No one likes any of his rulings. It is not for an incompetent judge to penalize attorneys whom he thinks are incompetent: it’s like the kettle calling the pot black. No good lawyer would like a judge like this. Good lawyers like ethical judges, not dishonest ones, just like StarKist Tuna likes tunas who taste good, and not tunas with good taste. Sorry Charlie.
Civil Litigation - Private
Judge Anderson is the most efficient judge in the Central District. I don’t like all of his rulings, but he keeps his rocket docket moving and penalizes incompetent attorneys. Lots of lawyers think they have the right stuff, but very few actually do. Judge Anderson makes sure that the ones that don’t, know that they don’t. And he lets them know real fast. Get out of the way for us good lawyers!
Civil Litigation - Private
I don’t know what everyone is so worked up about. Judge Anderson simply calls them as he sees them and isn’t afraid to make difficult and potentially unpopular decisions.
Prosecutor
Guy has no idea what reality is just makes up his mind before the trial and goes with his feelings. Do not bother to present your case he already has decided. Change him if you can.
Civil Litigation - Private
Detached from reality. Imposes impossible schedule that serves no justice. Lacks patience which often clous [sic] his judgment. Pray a lot if you have a case assigned to him.
Civil Litigation – Private
Judge Anderson is intelligent and willing to make the tough decision. He is decisive and moves cases along quickly. Judge Anderson is not afraid to dismiss cases or grant summary judgment when warranted, thereby saving both sides a great deal of time and money.
Criminal Defense Lawyer
This judge is ignorant, arrogant, rude, and wholly unqualified to be a judge. He is fully pro-government and extremely hostile to civil rights plaintiffs. He is Los Angeles’ Clarence Thomas though, unfortunately, he does speak, often, and very rudely. Dismiss your case and go to state court, as many do.
Civil Litigation - Private
Judge Anderson is extremely opinionated and rude. However, on a critical motion, he had every reason to treat me poorly, but was extremely fair. I don’t like his disposition, but he is extremely fair.
One person identified as “Court Staff” says:
“This man is overrated in terms of his abilities, and he practically radiates arrogance, hostility, disrespect and anger for no particular reason. He is just as miserable to court staff as he is to attorneys and litigants. He is a disgrace to the bench.”
In postings prior to 2012, attorneys remark that Anderson is “so crazy,” “a strange man,” “disgusting,” “a very angry and unhappy person,” “rash, ill tempered,” “[a]n unpleasant fellow,” “mean and unprofessional,” “simply stupid…pompous,” “arrogant, aloof, lazy,” “ruthless, mean, and demeaning,” “[e]xtremely arrogant towards criminal defense attorneys,” “a self-centered and extremely arrogant rule fetishist who has no interest in doing justice,” “[e]asily angered,” “the Darth Vader of the Federal Bench,” and “mean as a snake,” and who “[s]eems to be mentally unbalanced.”
A comment from a civil practitioner reflects on the judge’s mindset. She writes:
“I was counsel for a party in civil case before Judge Anderson. We were at the Rule 26 Scheduling Conference (so very early in the case) and I wanted the trial date to be set two months later than the defendant wanted - as I explained to the Judge, I was pregnant and the trial date that the Defendant insisted on was actually my due date for giving birth. Judge Anderson said in a very discourteous tone, ‘well, your client will just have to get another lawyer’ and set the trial date for my due date.”
A criminal defense attorney offers this view:
“I’ll bet when he was a kid he used to enjoy pulling the wings off of flies and cooking ants with a magnifying glass. He still does this to attorneys appearing before him.”
Another criminal defense attorney suggests:
“Needs anger management counseling and should be monitored by the circuit.”
A prosecutor complains: “On several occasions, I have seen him look at his clerks to make sure they are grinning while he makes his rude comments,” to which a civil practitioner responds:
“I have also witnessed his looking over at his grinning clerks as he makes unnecessary, sarcastic and rude comments to attorneys.”
Any judge, even the ablest, is apt to draw brickbats, now and then, from an attorney against whom he or she has ruled. But the negative comments on Anderson are, by virtue of the numerousness of them and the consistency of the allegations, in my view credible. The picture that is painted is that of a mean-spirited doofus who simply does not belong on the bench.
Anderson’s utter dereliction of his duties was brought to light by the usually milquetoast Los Angeles Daily Journal, a legal trade paper that generally shies away from placing any judge in unfavorable light, other than reporting disciplinary actions or reversals. It made an exception for Anderson.
The banner headline on Page One of its July 28, 2011 edition reads: “Habeas petitions stall on district judge’s desk.” The article, by Gabe Friedman, begins:
“Omer Harland Gallion was serving a life sentence in prison for murder when he saw a rare ray of hope. A federal magistrate judge had concluded Gallion should have a new trial or be released.”
That was in 2004, the article recites, reporting that Anderson dismissed the petition in 2010 only after being informed by Gallion’s lawyer that his client had died in prison, at the age of 80. Friedman observes:
“Inaction has become a pattern for Anderson,” adding:
“At least two other inmates have waited more than five and eight years respectively for Anderson’s ruling on magistrate judge reports recommending they be released.”
The article notes that the magistrate judge who recommended Gallion’s release was Jeffrey W. Johnson (without advising that Johnson has, since 2009, been a justice of this district’s state Court of Appeal).
After Johnson made his recommendation in February 2004, and Anderson did not act on it, the petitioner’s attorney sent a letter to Anderson inquiring as to the status of the matter, the article says. Friedman recounts that Anderson responded by citing a local rule proscribing communications with judges and scolding, in a May minute order:
“The letter is ordered returned to counsel and counsel is admonished that any further violations will result in the imposition of sanctions.”
An Aug. 21, 2011 piece in the Los Angeles Times picks up on the Daily Journal story, and adds this information:
“A Times review of Anderson’s record found that 565 habeas cases, excluding death row appeals, have been assigned to the judge during his nine years on the bench. He accepted the reviewing magistrate’s recommendations to grant relief in two cases assigned early in his tenure and dealt relatively quickly in denying or dismissing the rest of those in which he has issued rulings. That swift dispatch of denials contrasts with the three long-delayed rulings on recommended grants that were brought to public attention last month by the Daily Journal, a legal publication.”
Questions remain as to why Anderson delayed for multiple years in acting in the three matters and whether he is at all amenable to granting even the worthiest of a petition for a writ of habeas corpus.
Herman Adkins spent 12 years in prison for a 1986 rape (and robbery) he didn’t commit. His innocence was eventually established, and he was freed, based on DNA evidence.
Claiming misconduct on the part of a deputy sheriff, he sued Riverside County for his wrongful conviction. According to news reports, Anderson initially dismissed the action, but the Ninth U.S. Circuit Court of Appeals reinstated it in September 2005.
The judge made a pre-trial ruling on Aug. 17, 2006, that that the DNA evidence would be barred. The Ninth Circuit, responding to an emergency motion, on Aug. 22 countermanded Anderson. The order—by then-Chief Judge Mary M. Schroeder (now a senior judge) and Judges Stephen Reinhardt and Kim M. Wardlaw—declares:
“Evidence of actual innocence is both relevant and not subject to exclusion….”
Trial commenced; the jury was deadlocked; Anderson on Sept. 13 declared a mistrial notwithstanding that jurors wanted to continue deliberating.
That same day, the Ninth Circuit barred Anderson from presiding over further proceedings in the case. The order—signed by the same trio previously acting in the case—says that in light of Anderson’s “cumulative actions in this case, which has a long, bitter and controversial history, his impartiality might be questioned.” It proclaims:
“It will be in the interests of the district judge as well as the parties, and it will preserve the appearance of justice, if any future trial in this matter is conducted by another judge.”
Atkins prevailed at his second trial, gaining a $2 million award.
The Ninth Circuit reversed the conviction of Stuart Wolff, erstwhile chief executive of Homestore Inc., an online real estate listings company, who had been involved in a corporate fraud involving $67 million. On Jan. 14, 2008, the appeals court held that Anderson should not have presided in the case.
Anderson owned stock in Time Warner Inc.’s America Online (“AOL”), which had been implicated in some of Homestore’s activities...to the extent that Wolff’s lawyers characterized AOL as “a potential unindicted co-conspirator in this case.”
An unpublished memorandum opinion—signed by Wardlaw, Circuit Judge Ferdinand Fernandez and Senior District Judge Richard Mills for the Central District of Illinois—observes:
“In this case, the judge’s rulings could potentially have had a financial impact on AOL.”
Anderson did disclose his ownership of AOL stock, though not with particularity as to the extent of his holdings. He disqualified himself from ruling on a single motion, but declined to recuse himself from the case.
“Based on our review of the record,” the opinion says, “we conclude that Judge Anderson’s ownership of AOL stock constituted a ‘financial interest in the subject matter in controversy,’ ” in violation of the federal disqualification statute.
It finds that “Judge [John F.] Walter abused his discretion by denying Wolff’s motion to disqualify Judge Anderson.”
Anderson had sentenced Wolff to 15 years in prison. On remand, then-Judge Gary Feess (now retired), found reasonable a plea bargain calling for a sentence of three to five years, and ordered a commitment for 4.5 years.
Perhaps Baca’s lawyer will be able to gain a disqualification of Anderson based on his quest to sentence Baca based on attributing to him all criminal misdeeds committed by those under him, notwithstanding Baca’s lack of complicity in, or even knowledge of, the activity.
President Harry Truman’s motto that “The buck stops here” was a statement as to accountability in a political context, not a legal pronouncement as to vicarious criminal liability.
While it is not likely that Anderson will be caused to step aside, surely the cause of justice would compel it.
Some would say that Anderson is a “horse’s ass.” That would, of course, be outrageously insulting.
…To horses, that is.
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