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Judge Connolly Seeks Disqualification of Judge Lowenthal
Connolly Seeks Order Barring Colleague From Continuing to Preside Over Resentencing Sought by a Man Convicted of Murder, Saying Lowenthal Has Evinced Bias; Connolly Was Prosecutor in the Case in 2007
By a MetNews Staff Writer
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PATRICK E. CONNOLLY |
DANIEL J. LOWENTHAL |
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Los Angeles Superior Court judges |
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Los Angeles Superior Court Judge Patrick E. Connolly is seeking the disqualification-for-cause of a colleague on the court, Daniel J. Lowenthal, in connection with a resentencing sought by a man who was convicted in 2007 of first-degree murder under the felony-murder rule, with Connolly, in his pre-bench days, having been the lead prosecutor.
Connolly complains that he’s accused by Lowenthal, in statements he’s made in court, of misconduct as a deputy district attorney by failing to disclose exculpatory evidence to lawyers for defendant Justin Ashley Flint—in particular, a statement in an interview with a co-defendant, the actual shooter, that Flint was not at the murder scene, but was down the street. The judge presiding over that case, Connolly stresses, had ruled that disclosure was not required.
He contends that Lowenthal has inappropriately converted the resentencing proceeding into a hearing on a petition for a writ of habeas corpus, which the defendant did not file.
“Judge Lowenthal has improperly assumed the role of Petitioner’s counsel,” the memorandum of points and authorities in support of the motion, pursuant to Code of Civil Procedure §170.1, asserts.
Recusal is being sought by Connolly in light of the Office of District Attorney having opted not to file its own statement of disqualification. It was, in fact, a deputy district attorney, Mary Murray, who brought the undisclosed exculpatory information to Lowenthal’s attention.
Lowenthal’s Response
In a verified answer filed Wednesday, Lowenthal declared:
“I am not prejudiced or biased against or in favor of any party to this proceeding or their counsel. Nor am I prejudiced or biased against or in favor of Judge Connolly. I do not know Judge Connolly personally, and I do not recall having ever met him. I have no personal opinion regarding Judge Connolly whatsoever. I have no beliefs or opinions regarding Judge Connolly that have or will influence any rulings or actions taken by me in these proceedings.”
He went on to say:
“All statements made by me and all actions taken by me in this proceeding have been done in furtherance of what I believe were my judicial duties. To the extent Judge Connolly’s statements of those rulings and statements are inconsistent therewith, they are denied.”
The motion will be heard by an Orange Superior Court judge.
Question of Standing
A question looms as to whether Connolly, as a non-party, has standing. A memorandum of points and authorities in support of Lowenthal’s April 5 verified answer, drafted by Court Counsel Phu C. Nguyen, declares:
“The Court need not reach the merits in this case, because Judge Connolly’s Statement is improperly filed and should not be considered. Judge Connolly is not a party within the meaning of the disqualification statutes and therefore does not have standing to file a disqualification statement, or otherwise move for Judge Lowenthal’s disqualification, in these proceedings.”
It points out that Code of Civil Procedure §170.3(c)(1) provides that “any party” may file a statement of disqualification. It observes:
“Here, Judge Connolly was the prosecuting attorney in the underlying trial: he was neither the People nor the defendant. While his prior actions as an attorney may be at issue in these proceedings, he has no more right at issue than any potential witness or member of the public might have to appear in the proceedings—which is to say none.”
Connolly’s Position
The March 27 memorandum filed by Connolly’s attorney, Harvinder S. Anand, sets forth:
“Judge Connolly has a due process right to be heard concerning these important issues, which bear on His Honor’s standing as a judge and could very well impact His Honor’s employment. Judge Connolly should not suffer adverse consequences for events that occurred more than 15 years ago without being given an opportunity to be heard, and especially not after His Honor has been a judge for more than 14 years.” The memorandum goes on to say that “[e]ven if Judge Connolly is found not to formally have standing, it is respectfully submitted that Judge Lowenthal should still be disqualified,” citing the California Supreme Court’s 2010 opinion in People v. Freeman.
There, then-Justice Carlos Moreno said that “a statutory disqualification scheme, like that found in our Code of Civil Procedure, is not solely concerned with the rights of the parties before the court but is also ‘intended to ensure public confidence in the judiciary.’ ”
Anand’s memorandum contends:
“[O]nce these issues have been brought to the reviewing court’s attention, it can and should disqualify Judge Lowenthal for the reasons set forth herein because the public cannot have any confidence in the fair and impartial outcome of this proceeding.”
Procedural History
Flint’s conviction of murder and attempted robbery, with a firearm allegation found to be true, was affirmed by Div. One of this district’s Court of Appeal in a July 6, 2010 unpublished opinion. On Jan. 3, 2018, Flint filed a petition for resentencing pursuant to what was then Penal Code §1170.95, now §1172.6.
The ancient felony-murder rule applied where a death had resulted during the commission of a felony, even if unintended by the particular defendant, fictionally imputing to that defendant the malice required for a murder conviction. Legislation, effective Jan. 1, 2019, largely abrogates the rule.
Sec. 1172.6. provides for resentencing where a conviction was based on the felony-murder rule under circumstances where the defendant’s conduct would not now constitute murder.
Under the murder statute, Penal Code §189, as now worded, the felony-murder rule survives under only three circumstances, set forth in subd. (e), as well as under subd. (f) even if none of the factors enumerated in subd. (e) were present. Subd. (f) specifies that a killing is murder where the defendant was a participant in events resulting in a death and “the victim is a peace officer who was killed while in the course of the peace officer’s duties, where the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of the peace officer’s duties.”
The victim in the case was Los Angeles County Sheriff’s Deputy Maria Cecilia Rosa.
On Nov. 12, 2020, then-Los Angeles Superior Court Judge Gary J. Ferrari (now retired) denied Flint’s resentencing petition.
Div. One’s presiding justice, Frances Rothschild, authored a Jan. 28, 2022 opinion reversing that decision, saying that Ferrari impermissibly concluded from the record that Flint “was ineligible for resentencing because he was a direct aider and abettor in the murder”—a circumstance specified by subd. (e) as justifying a charge pf murder—“and that he knew or should have known that Rosa was a peace officer engaged in the performance of her duties.” Ferrari should have held a hearing to determine the facts, she said.
Assignment to Lowenthal
On remand, the case went to Lowenthal.
Anand’s memorandum protests that Lowenthal has gone beyond the inquiry prescribed by the remand order. It maintains that he “is not entitled to use the resentencing proceeding to collaterally attack the judgment for alleged trial errors” and “cannot expand the limited statutory grant of authority in Section 1172.6.”
Over a five-month period, the memorandum asserts, Lowenthal has made various utterances and taken actions which demonstrate a lack of objectivity.
Lowenthal proclaimed that the prosecution had committed “egregious Brady error”—failing to adhere to the U.S. Supreme Court’s 1963 holding in Brady v. Maryland that the prosecution must divulge to the defense evidence it possesses favorable to the accused—by not revealing the shooter’s statement to Long Beach police investigators. He said that he was “just shocked” by that failure, and that “unquestionably…the fairness of the trial was compromised by the State’s failure to disclose” that evidence.
Brady Issue
Anand’s memorandum sets forth:
“The People did not commit a Brady violation. The Honorable Joan Comparet-Cassani (now retired), ruled that the People were not required to disclose the statements at issue. Judge Lowenthal improperly called the non-disclosure order ‘inexplicable’ and ‘beguiling.’…
“Moreover, just last week, Judge Lowenthal sua sponte ‘deemed’ Petitioner’s legal brief regarding Brady issues to be a habeas corpus petition. Petitioner also did not seek such relief and the brief was not verified as required by law. Judge Lowenthal misstated Petitioner’s position by claiming that ‘Mr. Flint requested that the court dismiss the case as a result of the State’s suppression of the evidence.’ Petitioner actually stated: ‘Should the court deny Petitioner’s petition under Penal Code section 1172.6. and thereafter conclude that the State committed a Brady violation, it is respectfully requested that the court dismiss the case against Petitioner.’ The court’s recent order shows that it intends to grant a habeas petition and dismiss Petitioner’s convictions for murdering and robbing Los Angeles County Deputy Sheriff Maria Rosa.”
In a March 22 order, Lowenthal had said:
“On December 22, 2022, the parties were invited to address whether the suppressed evidence violated Mr. Flint’s right to due process….In his Reply, Mr. Flint requested that the court dismiss the case as a result of the State’s suppression of evidence. Mr. Flint’s Reply is tantamount to a petition for writ of habeas corpus. Accordingly, it will be deemed as such.”
Anant commented:
“Disqualification is mandatory because the public can have no confidence in the fair resolution of this proceeding. Judge Lowenthal has made up his mind. Nothing can be done to persuade the court to rule differently. Judge Connolly thus has no choice but to bring this Application.”
Lowenthal set a Brady hearing for March 29 but it was cancelled in light of Lowenthal’s disqualification motion.
Court Counsel’s Memorandum
Nguyen said in his memorandum:
“In arguing so vociferously that no Brady violation occurred at trial, the Statement demonstrates the inappropriateness of a non-party seeking disqualification for cause based on a disagreement with the judge’s orders and rulings. Not only does Judge Connolly lack standing to assert the disqualification issue, but he certainly lacks standing to argue the merits of the defendant’s Section 1172.6 petition, or any related Brady issues, on a case in which he is neither party nor counsel. Therefore, the Statement presents an inappropriate means to challenge the merits of the Section 1172.6 petition and related Brady inquiry.
“Furthermore, regardless of who filed this Statement, the Statement is not the proper forum to evaluate the merits of the court’s orders on the underlying action - or to present argument on the Section 1172.6 and related issues which have been briefed by the parties and set to be heard. Indeed, the Court declines to address the merits of its orders on the Section 1172.6 petition, any Brady issues, or any issue on the merits, because these issues are irrelevant to the instant issue of disqualification, and the hearing on the Section 1172.6 petition and related issues has yet to occur.”
Statements made by Lowenthal in the course of the proceedings in the case “are based on his evaluation of the evidence and argument presented in these proceedings and his understanding of the law as they apply to the facts presented,” Nguyen wrote, “and are not so extreme as to make fair judgment impossible.”
Facebook Posts
Various Facebook posts by Lowenthal, Anand alleged, “confirm the court’s general hostility toward the criminal justice system and law enforcement.”
Among the comments the judge posted was one saying that “[d]espite comprising just 5% of the world’s population we house 25% of the world’s prison population...[b]ecause...we...impose absurdly long prison sentences [and] don’t rehabilitate those we put in the system,” another bemoaning “absurdly long prison sentences that lack a public safety rationale,” and one charging that law enforcement has a “paramilitary, aggressive policing culture, that often results in excessive force being used.”
Lowenthal said in his verified answer:
“My Facebook posts from May of 2020 were written during the week that the Governor declared a state of emergency in California due to civil unrest. The posts were intended to condemn racial disparities within the criminal justice system. The posts were reviewed and approved by a member of the CJA Ethics Committee from whom I sought guidance. Despite that, I removed the posts from my private Facebook page in December of 2020.”
Nguyen remarked in his memorandum:
“Canon 3B(9) of the Code of Judicial Ethics does require that judges abstain from making public comment regarding pending or impending proceedings; however, this ethical rule is not implicated here, because Judge Lowenthal’s private online statements present general social views, and they do not explicitly or implicitly reference Judge Connolly or any parties or subject matter relating to this case. Indeed, the posts have nothing to do with this case. Any attempt to fabricate a nexus between Judge Lowenthal’s private online comments and his rulings and statements in this case are exceedingly tenuous and do not warrant disqualification….Because judges are people engaged with their communities, private comments such as Judge Lowenthal’s posts about social issues unrelated to the matter cannot be the basis for judicial disqualification.”
Elected Judges
Lowenthal and Connolly both gained their judgeships through election—Lowenthal in 2006 and Connolly in 2008. Lowenthal ran as a deputy Los Angeles city attorney and Connolly was a Los Angeles County deputy district attorney.
Lowenthal is the son of former U.S. Rep. Alan Lowenthal, D-Long Beach, who is also a former state senator. The elder Lowenthal was a supporter of District Attorney George Gascón in his successful 2020 election battle with incumbent Jackie Lacey.
Anand said in his memorandum:
“Judge Lowenthal…apparently encouraged one person who agreed with the court’s…[Facebook] posts to vote against former District Attorney Jackie P. Lacey in Her Honor’s reelection bid….The person apparently agreed with Judge Lowenthal’s sentiments, stating, ‘I am with you! Where do I sign?’…Judge Lowenthal responded: ‘By voting in the upcoming D.A. election!!’….Judge Lowenthal appeared to be signaling or informing the person to vote against District Attorney Lacey.”
Last year, there was widespread news coverage when Lowenthal granted a mistrial in a robbery case because the defendant’s lawyer, Deputy Public Defender Alan Nakasone, complained that his client was unable to take adequate notes during the trial because the previous night and the night before, he had been placed in a jail cell that lacked a bed of blanket and could not sleep.
“There is absolutely no way, if there was a conviction, that it would stand,” Lowenthal said, adding:
“Essentially, this court has lost complete confidence in the Sheriff Department’s ability to provide proper housing arrangements. A mistrial is declared.”
Lowenthal, whose law degree is from Cornell University, will be honored on May 13 by the Criminal Courts Bar Association as “Judge of the Year.”
His wife, Suja Lowenthal, is city manager of Hermosa Beach and a former member of the Long Beach City Council. His mother, Bonnie Lowenthal, is secretary of the Long Beach Board of Harbor Commissioners and is a former member of the state Assembly.
‘Pugnacious’ Nature
Connolly, in running for the Superior Court, described himself to the METNEWS as “pugnacious.”
The Long Beach Press-Telegram, in an article during the campaign, said:
“If elected, Connolly might well be considered among the bench’s more colorful characters. He readily acknowledges his occasional hard-partying ways, as well as his outspoken nature.
“As popular as he is personable, Connolly has been known to spend sleepless weekends in Las Vegas with friends, playing blackjack and taking in football games over endless cocktails.
“His language is direct and drips with expletives.
“And his charms have led to more than a few romantic liaisons over the years.”
On 2021, the Commission on Judicial Performance publicly admonished him, saying:
“…Judge Connolly displayed improper demeanor toward two criminal defense attorneys during an arraignment and, in a different criminal case, made an inappropriate remark about the jury’s verdict to a defendant who had been acquitted. The commission determined that a public admonishment was warranted due to Judge Connolly’s significant prior discipline (a public admonishment in 2016 and a private admonishment in 2010) and his failure to fully acknowledge that his conduct was inconsistent with the California Code of Judicial Ethics.”
It elaborated:
“In 2016, Judge Connolly received a public admonishment for a course of conduct reflecting embroilment with a criminal defense attorney and for setting multiple post-trial hearings regarding possible contempt charges, which was an abuse of his authority. In 2010, Judge Connolly received a private admonishment for using profanity during a judicial profile interview and in chambers discussions with attorneys.”
In 2004, then U.S. District Court Judge Dickran Tevrizian said in an order that that he “condemns and censures” Connolly for his “cavalier attitude, ethical amnesia and questionable conduct” in connection with a four-month delay in the release of a man whose conviction had been reversed by the Ninth U.S. Circuit Court of Appeals.
Connolly’s law degree is from the University of San Diego.
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