Feb. 29, 2000
Judge Pamela Rogers Appears to Disregard Ethical Canons
Pamela Rogers, battling to retain her judgeship, has engaged in smear tactics. The tactics are aimed not at her two challengers, however, but at a newspaper. This one.
Judges have been sore at newspapers before when the publications have assailed the judges or misquoted them. Rogers is upset for a different reason: we reported what she said accurately.
As I'll explain, Rogers made allegations in an interview; I investigated; substantiation for the allegations could not be found; without retracting the allegations, she asked me not to report them; I denied that request; in an interview with another newspaper, she disavowed having made the allegations.
In meeting last Dec. 22 with our editorial board (me and General Manager S. John Babigian), as well as a staff writer (Robert Greene), Rogers responded to a question I asked as to whether one of her opponents, William Clark, had a drinking problem. The allegation that he did have such a problem had been voiced to one of our reporters by a person in Rogers' camp, on a hush-hush-for-now, it-will-all-come-out basis. I anticipated that Rogers would respond with a proviso that the information not be attributed to her. She didn't. The judge said Clark was an "alcoholic" and had a reputation as such in the legal community.
She recounted that back in the days when she was a deputy district attorney (prior to becoming a judge in January, 1995), she would see him at lunch, imbibing heavily. When I suggested that doesn't mean he would proceed to go into court in an inebriated condition, she assured me that she has "had him in prelims in the afternoon" and it was obvious he had been drinking.
I thought the reporter was going to be doing the profile on the race, but because of scheduling factors, I wound up doing it myself. I placed telephone calls to all of the judges and commissioners sitting in the Antelope Valley, other than Chesley McKay. McKay has, in the past, not returned calls, and, in any event, might have been biased; Rogers claimed in the interview that McKay gives out "misinformation" on her, and encourages "bad comments" concerning her. I also telephoned judges who formerly sat in Lancaster, and others. No one backed up the allegation.
The last judge I telephoned was Randolph Rogers, the candidate's husband. Even he could not substantiate the charge. He said that Clark only made morning appearances before him, so he had no first-hand knowledge. The judge also said he understood that Clark's drinking problem reportedly was largely one of the past. I disclosed to him that I had been unable to find anyone who could corroborate his wife's allegation and asked if he could suggest anyone to contact.
My disclosure of a lack of corroboration triggered a call from Pamela Rogers. She acknowledged that she had said that Clark appeared before at her in afternoon preliminary hearings in an inebriated state, but conveyed that since I was unable to obtain independent verification, she would like me to leave the matter out of my story. I explained that I could not ethically investigate an allegation and then report or not report the allegation based on whether it was borne out or not. She told me she understood, but expressed regret that she had been candid with us.
I offered Rogers the assurance that, "We're not out to get you." I reminded her that we had endorsed her in 1994 and that she and her husband had been guests at our table at a dinner. (As I recall, the price tag was $250 per person.) I mentioned this to her only because of the streak of paranoia she had displayed in the interview; she talked about the Public Defenders' Office, a member of the Alternate Public Defender's Office and McKay being committed to doing her harm. She alleged that a deputy public defender, who formerly headed the office in Lancaster, had told her to her face that he hated her; he assured me that he had never said that to her, and did not have a feeling of hatred—and I believed him.
Two articles on the race were printed, and Rogers voiced no protest to us as to the content.
Last Thursday, I received a call from Bob Wilson, a reporter for the Antelope Valley Press. He asked me to comment on Rogers' assertion that her remarks had been taken out of context and distorted. I told him it wasn't so.
I was astonished by the statements Wilson read to me. I wondered if Rogers assumed that we, in our building at Second and Spring, in the heart of the smog zone, would be oblivious to statements she made to her local paper in a remote bucolic pocket of the county, 60 miles away. I faxed a letter to her asking that she let me know if she disputed Wilson's account of what she told him, and in any event, to contact Wilson and set the record straight that she did make the remarks attributed to her.
I didn't hear from her, and, from what I later ascertained from Wilson, she did not telephone him to set the record straight.
Wilson's story appeared in his newspaper's Saturday edition. (Through next Friday, you'll find it on the Internet at http://www.avpress.com/n/sasty3.hts.) The article included the following:
No. That isn't what she said. She did not specify that she had in mind only one occasion; she did not mention 1997; she referred to "prelims" in the plural. She alleged, flat out, that Clark is an "alcoholic." (Something else she said, which was not included in my article, was that Clark drinks "from lunchtime on.")
Wilson's article continued:
It would appear from the judge's remarks to Wilson that she has been caused to realize that if a lawyer had been under the influence of alcohol during a criminal proceeding in her courtroom, she would have been remiss in not halting the proceeding to safeguard the defendant's right to effective representation. Apparently scared by the ramifications of her own remarks, Rogers provided Wilson with a fictionalized recitation of our interview with her.
The Valley Press article went on to say:
What Rogers was quoted as saying may have gone "way beyond" what she should have said, but was quoted accurately. Unless she suffers from some undisclosed disorder precluding her from recalling events with accuracy, she knows that her statements to Wilson were untrue. The following discussion assumes the absence of such a disorder.
In the past few columns, I've been talking about judicial canons. Rogers' conduct strongly suggests that she is once again in violation of the Code of Judicial Ethics. (The judge incurred a public admonishment from the Commission on Judicial Performance in 1998 for violating Canon 3(B)(8), which provides: "A judge shall dispose of all judicial matters...promptly....")
Two factors point to violations of the canons. 1.) She alleged that a rival candidate appeared in court on multiple occasions under the influence of alcohol—a charge which appears to be false; and 2.) she provided a reporter for the local newspaper with untruthful statements in order to advance her candidacy.
With respect to her charge against Clark, there is a probable violation by Rogers of Canon 5(B)(2). That canon requires that a judicial candidate not "knowingly misrepresent" any "fact" concerning an opponent.
Was the charge a misrepresentation? Six judges who had viewed Clark in their courtrooms on numerous occasions—two of whom have endorsed Rogers—said they never saw him in a tipsy state in court. Rogers' own husband could provide no corroboration, and, in fact, threw cold water on the charge by saying that while he had heard rumors of Clark imbibing at lunch, but understood the reputed problem to be pretty much behind him. A deputy district attorney who had been on the other side of cases from Clark disputed the charge, as did a roving court reporter for the courthouse and Rogers' own court reporter. Logically, this does not exclude the possibility that each of those persons is wrong, is lying, or that Clark, for whatever reason, only liked to drink before going into Rogers' courtroom. But those theoretical possibilities do seem to be unlikely realities. Too, Rogers, herself, now shies away from the assertion she made. Her present story is that on one occasion, in 1997, Clark appeared in her courtroom and she suspected he had been drinking, but his speech was not slurred. The fact that she has inferentially repudiated her original statement suggests strongly that it was not so. Also evidencing the falsity of the charge is that Rogers never stopped a proceeding to make inquiry as to Clark's fitness to proceed.
Was the misrepresentation knowing? Rogers would know whether she observed Clark in an intoxicated state in her courtroom or not. The facts that she did not on any occasion have a firm enough impression that he was intoxicated to say anything, and the fact that she does not now stand by her accusation, point to the falsehood having been uttered on Dec. 22 with knowledge of its falsity.
It would appear that Rogers has also violated Canon 2(A). That canon requires that a judge "act at all times in a manner that promotes public confidence in the integrity...of the judiciary." A judge with integrity would not make the devastating accusation against a lawyer that he drank excessively at lunch and then appeared in court unless this were susceptible of corroboration. Too, her utterance of untruthful statements to Wilson, knowing that the statements would in all probability be publicly disseminated, was inconsistent with her responsibilities under the canon. A violation of that canon was found by the California Supreme Court in 1995 where a judge had witnessed his colleague deflating a tire of a vehicle parked in the colleague's space, but did not speak up about it, even after learning the colleague had lied about the matter. Here, the conduct is far more serious; it is Rogers, herself, who has lied.
Rogers was interviewed by Wilson in her capacity not as a judge, but as a judicial candidate. Canon 4(A)(2) forbids extrajudicial conduct that will "demean the judicial office." Her conduct in leveling weighty charges against an election opponent which could not be substantiated and which appears to be false, followed by her mendacious denial of having made the charges, would tend to demean the office.
I have the feeling my wife and I won't be inviting Rogers to dinner again.
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