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CJP Says It Has Power to Sanction a Judge For Pre-Bench Brady Violation As DDA
However, It Says Allegation of Such Misconduct by Orange County Judge Not Shown by Examiner
By a MetNews Staff Writer
The Commission on Judicial Performance declared yesterday that it has the authority to discipline a judge who, before going on the bench, failed as a prosecutor to turn over exculpatory information to the defense, but found that Orange Superior Court Judge Michael F. Murray has not been shown to have committed such misconduct.
Three special masters appointed by the California Supreme Court—Court of Appeal Justices Judith Ashmann-Gerst of this district’s Div. Two and Patricia D. Benke, then of the Fourth District’s Div. One (now retired) and San Joaquin Superior Court Judge George J. Abdallah Jr.—said in a July 14, 2022 report that the examiner (prosecutor) did not prove the allegations by clear and convincing evidence.
In the Jan. 5 notice of charges, the commission told Murray that “[i]n failing to disclose exculpatory evidence, about which you had actual knowledge, you violated your continuing duty to disclose evidence favorable to the accused that is material either to guilt or punishment, pretrial” under the U.S. Supreme Court’s 1963 decision in Brady v. Maryland “and post-trial” under the high court’s 1976 ruling Imbler v. Pachtman and other authority.
Master’s View Rejected
While agreeing with the masters that the allegations were not proven, the commission disagreed with their assertion that a prosecutor who commits a Brady violation may only be sanctioned in the criminal proceeding to which the violation relates. It said:
“After an attorney becomes a judge, the State Bar loses jurisdiction to investigate alleged misconduct or issue discipline. Evaluation of any alleged misconduct that occurred while the judge was an attorney then falls within the jurisdiction of the commission. The commission may censure or remove a judge for pre-bench misconduct that took place within six years of the commencement of the judge’s current term….
“When an attorney is found to have committed ethical violations prior to becoming a judge, it negatively affects the public’s confidence in. and perception of, the judiciary. The purpose of a commission disciplinary proceeding is the protection of the public, the enforcement of rigorous standards of judicial conduct, and the maintenance of public confidence in the integrity and independence of the judicial system. As such, it is the commission’s responsibility and mandate to investigate and discipline judges for pre-bench misconduct, including pre-bench prosecutorial misconduct, where appropriate. We conclude that in order to fulfill the commission’s mandate, under certain circumstances, it may be necessary and proper for the commission to discipline a judge who committed a Brady violation while serving as a prosecutor. Those circumstances are not presented here.”
Commission’s Mandate
The commission on to say:
“While we agree with the masters that the requirements and purpose of Brady may sometimes make it an ‘inapt vehicle’ for judicial discipline, there are occasions when a Brady violation may also constitute pre-bench misconduct when the individual prosecutor personally committed a Brady violation in bad faith, prior to taking the bench….In those circumstances, we would not hesitate to impose discipline in order to fulfill our mandate to protect the public, enforce rigorous standards of judicial conduct, and maintain public confidence in the integrity and independence of the judicial system.”
The commission ordered the proceedings dismissed.
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