Jurist Is Faulted for Joining Facebook Group Calling for Recall of District Attorney Gascón, Posting Comments Expressing Views
By a MetNews Staff Writer
Los Angeles Superior Court Judge Michael J. O’Gara yesterday drew a public admonishment from the Commission on Judicial Performance stemming, in part, from his public opposition to District Attorney George Gascón.
O’Gara was a deputy district attorney for 17 years before ascending to the bench following his election in 2008 to an open seat.
The commission also took issue with tweets sent out by O’Gara, a Republican, which, it said, “appeared to reflect strong political points of view.”
MICHAEL J. O’GARA
Los Angeles Superior Cout Judge
Bar on Enhancements
Gascón was sworn in as district attorney on Dec. 7, 2020. On that date, he issued several “special directives,” including a command to deputies not to allege any enhancements and to dismiss those that were alleged under his predecessor, Jackie Lacey.
Three days later, O’Gara joined a Facebook group calling for the recall of Gascón. Other judges have also joined that group, which now has in excess of 43,300 members.
Among O’Gara’s posts was one in which he noted that Gascón “took an oath to uphold and defend the constitution of the state of California,” commenting:
“He is blatantly violating Section 28(f)(4) in dismissal of any prior enhancements.”
That section of the California Constitution says:
“ Use of Prior Convictions. Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding. When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.”
(On Feb. 8, Los Angeles Superior Court Judge James Chalfant issued a preliminary injunctions barring enforcement of key provisions of the directives, saying: “Legislating by fiat, Respondent Gascón issued a series of special directives that all but repealed California’s sentencing enhancement laws and commanded his employees—Los Angeles County…prosecutors sworn to uphold and enforce the law—to violate numerous statutory mandates and refrain from performing their duties under the law.”)
The commission attributed to O’Gara the following post which, it appears from the Facebook page, was actually posted by the group’s administrator, Heather Carbone:
“I don’t know about the rest of you, but every election I am guilty of not paying attention to the Judges running. Now, I definitely will, especially after Gascón’s own staff is talking about ‘flipping the bench’ etc. Some of the judges are fighting Gascóns directives and we need them to stay. They are heroes.”
(The remark about “flipping the bench”—that is, voting out of office those judges who decline to adhere to Gascón’s policies—was made by Tiffiny Blacknell, a deputy public defender hired by Gascón. She has referred to Los Angeles police officers as “barbarians,” called for abolishment of prisons, and boasted of her participation in the Rodney King riots.) O’Gara also “liked” (indicated agreement with) other comments antagonistic toward Gascón.
The commission said of O’Gara’s participation in the recall effort:
“The commission determined that Judge O’Gara’s Facebook activity gave the appearance of bias against the Los Angeles County District Attorney. The judge was an active participant in a group with more than 16,000 members, formed to oppose an elected official, giving the appearance that he endorsed the group’s stated goals and activity. Judge O’Gara posted remarks expressing a partisan viewpoint, and ‘liked’ other users’ comments expressing similarly partisan viewpoints.
“The commission found that the judge’s defense that he did not intend his social media activity to act as an endorsement of any specific partisan positions was not vindicating. “Likes” are, on their face, indicia that a person likes content. Further, Facebook is a forum with over one billion active monthly users, each of whom may, if they wish, screenshot or share content generated by another user.”
The opinion/order added:
“Once Judge O’Gara commented on a Facebook post, he effectively distributed material to an unlimited number of persons, over whose actions he had no control. Additionally, because Judge O’Gara heard cases prosecuted by the district attorney’s office at the same time he participated in the group, Judge O’Gara’s Facebook activity constituted making public comments about pending or impending proceedings in a court.”
It noted that O’Gara has withdrawn from the Facebook group.
One former high-level prosecutor counseled yesterday: “Facebook has caused a lot of problems for good people. It would be best for judicial officers who have warranted criticisms of George Gascón and his radical policies to make their comments on the record and in the context of cases that comes before them. There is certainly plenty of opportunity to strongly criticize Gascón almost every day any criminal court is in session.”
The commission said of the tweets:
“Judge O’Gara’s social media activity gave the appearance of bias. He posted undignified, indecorous remarks in response to public figures, and appeared to espouse partisan and controversial viewpoints.
“The commission found that the judge’s defense that he did not intend his social media activity to act as an endorsement of any specific partisan positions or controversial viewpoints was not vindicating. “Likes” are, on their face, indicia that a person likes content. In addition to the judge’s original tweets, the Twitter content Judge O’Gara liked” reflected the appearance of bias, regardless of his intent. Further, Twitter is a forum with over three hundred million active monthly users, each of whom may, if they wish, screenshot or share content generated by another user. Once Judge O’Gara tweeted or re-tweeted content, he effectively distributed material to an unlimited number of persons, over whose actions he had no control. That Judge O’Gara’s followers on Twitter included the official account for the City of Glendale, at least one Los Angeles deputy district attorney, and multiple private attorneys, compounded the harm done by his social media activity.”
The opinion notes that the judge has deactivated his Twitter account.
Voting in favor of a public admonishment were the commission’s chair, Trinity Superior Court Judge Michael B. Harper, attorney Victor E. Salazar, and Michael A. Moodian, Eduardo De La Riva, Kay Cooperman Jue, and Beatriz E. Tapia. Court of Appeal Justice William S. Dato of the Fourth District’s Div. One, Superior Court Judge Lisa B. Lench, attorney Rickey Ivie, and Richard Simpson favored a private admonishment.
Los Angeles Superior Court Judge Michael J. O’Gara yesterday drew a public admonishment from the Commission on Judicial Performance for engaging in exchanges on Twitter such as the one above, reproduced in the CJP’s “decision and order.”
Former Judge’s Assessment
Commenting yesterday on the partial relinquishment of First Amendment rights by those who go on the bench, retired Los Angeles Superior Court Judge Phillip J. Argento (now on inactive State Bar status) said:
“Judges are not totally lacking in First Amendment rights. But they give up a lot of them when they become bound by the Code of Judicial Conduct which limits the scope of free speech by judges for the purpose of advancing the reality and the appearance of an impartial judiciary.”
He related that when O’Gara ran for the Superior Court, he endorsed him, remarking that “he was one of the best deputy district attorneys to appear in my court.” Argento noted that endorsing judicial candidates is “a First Amendment exercise” expressly permitted by the Code of Judicial Ethics.
The former judge recounted his displeasure when then-U.S. Supreme Court Justice Ruth Bader Ginsberg (now deceased) in 2016 criticized then-presidential candidate Donald Trump, saying that “she had stepped out of her judicial role and raised the issue of her impartiality,” and rightly drew criticism in a Washington Post editorial.
He continued: “She later expressed public regret. Her public regret mitigated the wrong she had done to the judiciary. Judge O’Gara has appropriately expressed regret for his conduct. “I felt Chief Justice [John] Roberts was correct when he rebuked President Trump, saying, ‘We do not have Obama judges or Trump judges, Bush judges or Clinton judges,’ and ‘What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.’ He said, ‘That independent judiciary is something we should all be thankful for.’ Amen, I say. Of course, judges are human beings, but judges should aspire to impartiality every day and be grateful that they have been called to serve as judges.
“Judges can vote; they can make modest political contributions pursuant to the code. They can express their opinions privately on candidates for legislative and executive office and even publicly for judicial candidates. But as long as they are legally judges, judges should remain laser focused on the law and publicly stay out of the political fray including the effort to recall District Attorney George Gascon.”
Judge Michael O’Gara joined the “Recall George Gascón” Facebook group, drawing criticism Tuesday from the Commission on Judicial Performance.
The California Supreme Court’s Committee on Judicial Ethics Opinions on April said in an expedited advisory opinion:
“[J]judges must be mindful of how the public may perceive social media activity and refrain from any online statements or communications that call into question the impartiality of the judiciary….
“When posting comments online, judges must carefully consider the canons and the potential hazards of social media to strike a balance between the restrictions on judicial conduct and the expression of personal opinions.”
The committee went on to advise:
“A judge’s online statements and social media posts are particularly likely to draw heightened attention when a judge is engaging in discourse on controversial subjects or current events….Thus, the committee advises judges to assume that any statements they make on social media are public statements, potentially subject to scrutiny, and to use discretion and heightened caution when online.”
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