Tuesday, December 30, 2003
Judge Faces Discipline Over Voir Dire Racial Bias Comments
By DAVID WATSON, Staff Writer
The Commission on Judicial Performance has instituted formal proceedings against a Placer Superior Court judge who told prospective jurors in two cases to make up excuses to avoid serving if they felt racial bias against defendants, the commission announced yesterday.
A San Francisco lawyer who represents him said the judge requested a formal hearing after the commission proposed public admonishment.
Judge Joseph W. O’Flaherty used the challenged language only twice, James A. Murphy of Murphy Pearson Bradley & Feeney said. In both cases, the resulting convictions were reversed by the Third District Court of Appeal.
In reversing the second conviction, which involved an Iranian defendant, the appeals court said it was providing a copy of its decision to the commission in order for it “to determine whether Judge O’Flaherty’s actions constitute actionable judicial misconduct.”
In both cases—the first involved an African American defendant—O’Flaherty told jurors he would not ask them to openly admit to racial bias. Instead, he advised them to come up with another excuse to avoid service.
Told to ‘Lie’
In addressing potential jurors for the trial of Joy Ann Mello, subsequently convicted of aiding and abetting the robbery and false imprisonment of a gas station attendant, and of being armed with a firearm in the commission of those offenses, O’Flaherty said jurors who doubted their ability to fairly judge the African American defendant should “lie” by citing “some other reason to get excused.”
Noting that jurors might find it “insulting and embarrassing to raise your hand and say I’m a racist,” the judge commented:
“It doesn’t take a rocket scientist to figure out how to get excused, if you put your mind to it, and I’d rather have you do that than sit on the jury if there’s a problem in this area.”
In the case of Mohammad Ali Abbaszadeh, later convicted of two counts of grand theft by false pretenses and one count of selling securities by means of false statements, O’Flaherty did not suggest that jurors lie, but said they should “do whatever you have to do to get off the jury” if they felt biased against the defendant because of his race.
Justice Fred K. Morrison, in his opinion for the court in People v. Abbaszadeh (2003) 106 Cal.App.4th 642, cited the opinion authored by Presiding Justice Arthur Scotland in People v. Mello (2002) 97 Cal.App.4th 511 and commented:
“Although in Mello we tempered our opinion by calling Judge O’Flaherty’s conduct ‘well-intentioned but misguided’—, we did so under the assumption that the voir dire in Mello was an isolated example of voir dire in his courtroom. The needless expense to the public caused by retrials (at least two) is appalling and it is now difficult to conclude that Judge O’Flaherty’s conduct was ‘well-intentioned’ when it was not the product of an off-the-cuff decision during one trial, but was apparently his practice.”
Murphy said O’Flaherty was “vilified” by the Third District without having an opportunity to defend his conduct. He abandoned the practice as soon as it was condemned in the Mello decision in April of 2002, the attorney said.
The voir dire in Mello’s case occurred in December of 1999, and the Abbaszadeh voir dire in February of 2000.
“Judge O’Flaherty never had an opportunity to be heard in the Third District Court of Appeal, and yet they went ahead and passed judgment on him,” Murphy declared.
Murphy said there was “no law guiding judges at the time,” adding that O’Flaherty “believed at the time that what he was doing was lawful and was appropriate so these two minority defendants could receive a fair trial in Placer County.”
“He was trying to do the best he could to ensure a fair trial for these defendants.”
The Third District opinions pointed out that the Judicial Council has issued guidelines for trial judges to use to inquire into racial bias during jury voir dire, and that the California Supreme Court in People v. Holt (1997) 15 Cal.4th 619 instructed trial judges to follow those guidelines.
In his opinion in Abbaszadeh, Morrison pointed out that one of the jurors seated in that case expressed concern that he might have difficulty following testimony if it involved “heavy accents” and was instructed by O’Flaherty to “raise his hand” if the problem came up during the trial.
That juror might have been trying to come up with an excuse to avoid service because of racist feelings, as O’Flaherty had suggested, Morrison pointed out.
“Quite possibly this juror tried to comply with the Mello instruction, only to be thwarted,” the justice said. “That we cannot know illustrates why Mello error is structural: It renders all further proceedings unreliable.”
O’Flaherty’s conduct “reflected abuse of authority, disregard for fundamental rights, intentional disregard of the law, and was in violation of the Code of Judicial Ethics, canons 1 and 2A,” the commission charged in its notice of formal proceedings.
Canon 1 requires judges to uphold the integrity and independence of the judiciary. Canon 2A mandates that they respect and comply with the law and act in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
Neither canon directly addresses the appropriate means of ensuring that racially biased members of the venire are excluded from juries.
The commission said O’Flaherty has until Jan. 7 to file an answer to the notice. A hearing will then be conducted before special masters appointed by the California Supreme Court, and the masters will make a recommendation to the commission.
The Commission is composed of three judges, two lawyers, and six public members, and is chaired by Santa Clara Superior Court Judge RisÎ Jones Pichon.
Two public members each are appointed by the governor, the speaker of the Assembly, and the Senate Rules Committee. There are two public member vacancies, commission Director-Chief Counsel Victoria Henley said.
Ramona Ripston, an appointee of the Assembly speaker, resigned Nov. 5, and Dr. Betty Wyman, a gubernatorial appointee, resigned Nov. 26, Henley said. Both terms end Feb. 28, 2005.
Assembly Speaker Herb Wesson and Gov. Arnold Schwarzenegger could make appointments, which do not require confirmation, at any time, she noted.
Copyright 2003, Metropolitan News Company