Page 1
CJP Publicly Admonishes Former Solano Judge for Intruding on Attorney-Client Relationship
By a MetNews Staff Writer
|
|
|
ROBERT S. BOWERS |
Former Solano Superior Court Judge Robert S. Bowers, who retired in November, yesterday drew a public admonishment from the Commission on Judicial Performance for questioning the competency of a deputy public defender and asking another lawyer if he would be available for appointment on the matter, saying the jurist effectively solicited from the defendant a motion to discharge his counsel, interfering with the attorney-client relationship.
The commission also faulted Bowers for improperly handling a statement of disqualification filed by the deputy, Matthew Adler of the Solano County Public Defender’s Office, finding that the judge improperly ordered that it be stricken as without legal basis.
Bowers’ statements about Adler were made in connection with the attorney’s representation of Damian Jones, a defendant accused of murder. After Adler, in August, timely filed a motion to continue the trial date based on his engagement elsewhere, Bowers called the other judge involved and asked her to reschedule a case set to begin a few days before the jury trial in People v. Jones.
At a hearing on the motion to continue, held on Aug. 20, Bowers denied the request, saying a homicide trial would “trump” the other matter. Adler then filed a statement of disqualification under Code of Civil Procedure §170.1, alleging that Bowers had engaged in improper ex parte communications with the other jurist and acted in a way that conveyed the appearance of bias.
On Aug. 23, Bowers asked private defense attorney David Nelson in open court if he would be available for appointment on an upcoming homicide case. He then called the Jones matter and ordered the statement of disqualification to be stricken as “pretty borderline frivolous.”
Bowers proceeded to question Adler’s experience, asking him to confirm that he was a “line deputy” and inquiring whether the deputy had ever tried a murder case. In the exchange that followed, Bowers remarked:
“I am concerned that based on you’re being appointed…on a homicide, okay, that I then don’t see you regularly because you’re…I’m going to say ‘busy’ doing what I would consider the week-to-week, month-to month type of cases that line deputies do; that we have had a preliminary hearing with immunized witnesses; that…Mr. Jones, again, a…young man charged with a very serious crime, a homicide, then having set it for trial and having to go in camera and having on the record saying that you would be ineffective assistance of [c]ounsel if you were forced to go to trial.
“And, again, I—not because it’s reversible error, but every defendant deserves competent, you know, ready—ready to go to trial.”
Jones was not in court to hear Bowers’ comments.
The matter was put over to Aug. 29. Adler filed a second statement of disqualification based on Bowers’ ex parte communication with Nelson and his negative comments about “the quality of defense counsel.”
When the next court day arrived, Bowers said it was his “intent to strike” the statement of disqualification “just like I struck the first one because it was completely and utterly legally insufficient.” Jones was present in court when Bowers added:
“Is this what Mr. Jones wants? He wants to go down this road? Or should I appoint him a private lawyer who’s more experienced and done all these types of cases to represent him. And that was a question that I put out at the last court date, so that’s kind of where I am.”
Soliciting Marsden Motion
Another deputy public defender, Oscar Bobrow, who was also appearing for Jones objected to the judge’s comments, saying the judge was soliciting a so-called Marsden motion—the vehicle by which a defendant can seek to fire their court-appointed lawyer and have a new one assigned after a closed hearing—and interfering with the attorney-client relationship.
The judge cleared the courtroom and conducted a Marsden hearing. After taking the matter under submission, he tentatively stated that he would be relieving the Public Defender’s Office and appointing private counsel to represent Jones.
Following a petition by the Public Defender’s Office, the First District Court of Appeal issued a peremptory writ of mandate to vacate Bowers’ striking of the second statement of disqualification, finding that the allegations sufficiently asserted that “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial” under Code of Civil Procedure §170.1(a)(6)(A)(iii).
The Commission on Judicial Performance (“CJP”) said:“Judge Bowers questioned Mr. Adler’s competence because he had not previously tried a homicide case. He asked Mr. Adler if he had ever tried a homicide, stated Mr. Adler’s ‘step up to homicide’ may have been too soon, and three times stated that he was considering appointing an attorney who had homicide trial experience. Judges are limited in their ability to remove counsel on the basis of ‘incompetence,’ because it implicates a defendant’s right to counsel and is a threat to the independence of the bar….
“[B]y talking to Mr. Jones about Mr. Adler and his representation, over the objections of his attorneys, Judge Bowers improperly solicited a Marsden motion and interfered with the attorney-client relationship….”
Duty to Inquire
Rejecting Bowers’ contention that he had a duty to inquire as to whether Jones desired new counsel because he believed Adler was not providing effective assistance, the CJP noted that such an obligation only arises when a defendant clearly indicates a wish to substitute attorneys.
The commission added that “talking to Mr. Nelson about accepting appointment…, even though Mr. Jones had not asked that the public defender be relieved…constituted prejudgment, embroilment, abuse of authority, and bias against Mr. Adler” and found that “Judge Bowers…improperly struck the second statement of disqualification.” The CJP said that Bowers’ misconduct was aggravated by prior discipline, noting a private admonishment in 2012 following a “close social relationship with an alternate juror” and an incident in which he accused a defense attorney of “gamesmanship,” as well as an advisory letter, sent in 2007, responding to his use of profanity in court.
Nine members of the commission, including Los Angeles Superior Court Judge Lisa B. Lench had voted for issuance of the notice of tentative public admonishment. Court of Appeal Justice Julia C. Kelety of the Fourth District’s Div. One and Butte Superior Court Judge Kimberly Merrifield indicated that they would have voted in favor but for the inclusion of Bowers’ handling of the second statement of disqualification.
Copyright 2025, Metropolitan News Company