Diana R. Hall, Superior Court Judge is removed.

According to the Commission on Judicial Performance order of December, 2006, Judge Diana R. Hall of the Santa Barbara County Superior Court was ordered removed from office for willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

The Commission found that Judge Hall drove a car when impaired by alcohol and with a blood alcohol level of .18, more than twice the legal limit, resulting in convictions by a jury of driving under the influence and driving with a blood alcohol level over .08. The Commission adopted the special masters’ conclusions that the judge’s conduct was contrary to canons 1 and 2A, and that it reflected “a complete lack of concern for the safety of others” as well as “an inability to control her impulses and poor judgment, thereby seriously injuring the integrity of the judiciary in the eyes of the public.” The Commission also adopted the special masters’ conclusion that the judge engaged in prejudicial misconduct, since her conduct would appear to an objective observer to be not only unjudicial conduct but conduct prejudicial to the public esteem for the judicial office.
The Commission also found that during her campaign for reelection, Judge Hall illegally commingled campaign and personal funds, and filed four sworn false campaign statements. The Commission found that the judge accepted $20,000 for her campaign from a woman with whom she lived in a romantic relationship; the judge deposited these funds to her personal checking account and then wrote a check for $25,000 to her campaign. Subsequently, the judge signed under penalty of perjury four campaign statements that did not include the $20,000 she had received, either as a loan or as a contribution; the statements falsely listed the judge as the sole source of the $25,000 deposited to her campaign account.
The Commission found that the judge intentionally omitted the source of the $20,000 from her campaign statements because she believed disclosure of her same-sex relationship would have made her job difficult in the area in which she was running for reelection. The Commission noted that although the judge had admitted in prior testimony at her DUI trial that this was the reason she omitted the $20,000 from her sworn statements, she testified at the hearing before the masters that she “never really thought about” the possibility that listing the $20,000 would result in disclosure of the relationship, and also testified that she considered the $20,000 to be jointly earned and therefore not subject to disclosure. The Commission and the masters rejected these latter claims, finding that the judge intentionally omitted the source of the $20,000 from her statements to avoid disclosure of her relationship.
The Commission concluded that Judge Hall violated various provisions of the Political Reform Act, rejecting her claim that she did not willfully violate the law because she was ignorant of its requirements at the time of the violations. The Commission concluded that by commingling funds, intentionally concealing the source of nearly half of her campaign contributions, and signing four declarations under penalty of perjury knowing they were false, the judge violated canons 1, 2A and 5, and engaged in prejudicial misconduct. The Commission concluded that Judge Hall’s campaign misconduct was unjudicial conduct committed in bad faith by a judge not then acting in a judicial capacity, noting that “in this context, bad faith means a culpable mental state beyond mere negligence and consisting of either knowing or not caring that the conduct being undertaken is unjudicial and prejudicial to public esteem.” (Broadman v. Commission on Judicial Performance (1998) 18 Cal.4th 1079, 1093.)
Finally the Commission found that Judge Hall questioned a prosecutor about why he was filing a peremptory challenge against her, and rejected her claim that she did not do so. The Commission noted that the judge admitted that she knew she could not question the prosecutor about the challenge. The Commission concluded that the judge violated canons 1 and 2A by her questioning and engaged in willful misconduct, noting that the judge’s conduct was unjudicial, that she was acting in a judicial capacity, and that she committed an act she knew was beyond her judicial power, thus acting in bad faith. (See, Broadman, supra, 18 Cal.4th at p. 1091.)
The Commission determined that the special masters properly admitted into evidence a private admonishment that was in effect before the conclusion of the Commission proceeding, as allowed by Commission rule 125(b), and noted that the rule provides that prior discipline is admissible “to determine what action should be taken regarding discipline.” The Commission rejected the judge’s arguments that admitting the admonishment improperly made private discipline public, and that the Commission should only consider discipline for conduct predating the conduct considered in the formal proceedings. The Commission pointed out that Judge Hall had committed the misconduct underlying the admonishment when she knew she was under investigation by the Commission, and had thereby “shown her inability to control her behavior at a time one would expect her to be on her very best behavior.”
The Commission then discussed the facts underlying the private admonishment. In that matter, Judge Hall insisted on being seated in the main courtroom, rather than an overflow courtroom, during arraignment and argument in a high-profile case, so that the prosecutor could see her “no worse off” than before he had prosecuted her for the DUI and other charges. She disobeyed the order of the judge presiding over the case not to enter the main courtroom, and refused to speak to the presiding judge by telephone.
In considering the appropriate sanction, the Commission stated that the case required it to “decide whether a judge who engages in materially deceitful and lawless conduct that undermines the electoral process, and thereafter attempts to explain it away with specious arguments and misleading testimony should continue in judicial office.” The Commission pointed out that honesty is a minimum qualification for every judge, and cited past cases from California and other states in which judges were removed primarily or specifically for dishonesty, including deceptive campaign conduct and subsequent dissembling before the Commission.
The Commission considered in mitigation the testimony of several witnesses who described Judge Hall as a hardworking, conscientious and well prepared jurist. Nonetheless, the Commission concluded that “the judge’s election fraud overwhelms other considerations and compels [its] removal decision.” The Commission stated that the judge engaged in deceit and misrepresentations to keep her position as a judge; dissembled before the masters and the Commission; demonstrated an extreme lack of judgment when she drove while drunk; questioned an attorney’s disqualification of her when she knew this was improper; and showed “alarming disrespect” for the authority of the judge presiding over a high profile case, the presiding judge, and other court personnel when she insisted on taking a seat in the courtroom for proceedings in the case. The Commission noted that the judge’s actions showed “the serious degree to which she is unable to control her behavior.”
Commission members Mr. Marshall B. Grossman, Judge Frederick P. Horn, Mr. Michael A. Kahn, Mrs. Crystal Lui, Justice Judith D. McConnell, Mr. Jose C. Miramontes, Mrs. Penny Perez, Judge Risë Jones Pichon, Ms. Barbara Schraeger and Mr. Lawrence Simi voted in favor of all the findings and conclusions and in the order of removal and disqualification. Commission member Patricia Miller did not participate in the matter.

Judge Manny L. Real's side of the story.

I have reviewed the material related to Judge Real's impeachment proceedings. It appears that what prompted Judge Real to take jurisdiction of the bankruptcy case was the improper use of confidential materials in a case that he had jurisdiction over. I've modified my belief & opinion regarding the incident following a review of these documents. It appears that the impeachment proceedings are unjustified. The material I reviewed is available here.

The lesson for everyone in this saga is to clear up any issue regarding a question of character at the time that it arises. Judge Real readily admits in his personal testimony before Congress that had he completely responded to Judge Kozinski's inquiry, this effort would have been avoided.

A zipped file of the material presented before Congress is available here.

Judicial Self-Gratificator Convicted On All Counts

Courtesy of AP News:

A former judge convicted of exposing himself while presiding over jury trials and accused of using a sexual device under his robe was sentenced Friday to four years in prison.

Donald Thompson had spent almost 23 years on the bench and had served as a state legislator before retiring from the court in 2004.

At his trial this summer, his former court reporter, Lisa Foster, testified that she saw Thompson expose himself at least 15 times during trial between 2001 and 2003. Prosecutors said he also used a device known as a penis pump during at least four trials in the same period.

Thompson, 59, was convicted last month of four felony courts of indecent exposure for incidents that took place in his Creek County courtroom.

Thompson, a married father of three grown children, testified that the penis pump was given to him as a joke by a longtime hunting and fishing buddy.

"It wasn't something I was hiding," he said.

He said he may have absentmindedly squeezed the pump's handle during court cases but never used it to masturbate.

Foster told authorities that she saw Thompson use the device almost daily during the August 2003 murder trial of a man accused of shaking a toddler to death. A whooshing sound could be heard on Foster's audiotape of the trial. When jurors asked the judge about the sound, Thompson said he hadn't heard it but would listen for it.

Police built a case against the judge after a police officer testifying in a 2003 murder trial saw a piece of plastic tubing disappear under Thompson's robe. During a lunch break, officers took photographs of the pump under the desk.

Investigators later checked the carpet, Thompson's robes and the chair behind the bench and found semen, according to court records.

Carmelia Brossett, a senior probation officer for the state Department of Corrections, said in a presentencing report that Thompson refused to undergo psychosexual testing.

"Thompson's denial of the offense would likely present difficulty, if not inability for treatment providers to provide meaningful and beneficial sex-offender treatment," she said.

The jury recommended a sentence of one year in prison and a $10,000 fine on each count. The jury foreman has said it was the jury's intent that Thompson serve the full sentence.

Judge C. Allen McCall was considering arguments on whether Thompson should be allowed to remain free pending appeal. Thompson was also ordered to pay a $40,000 fine.

Judge Alex Kozinski apologizes for the conduct Judge Manny Real

Just as this site points out instances of judicial hooliganism, it acknowledges the internal struggle within the system between the righteous and the corrupt. The latest event I stumbled across was a September 2005 opinion issued by the Ninth Circuit Court of Appeals where the majority of the Judges of the Ninth Circuit blessed the conduct of United States District Judge Manny Real. Judge Real had instructed a sexy young woman to report for her probation directly to him, and had revoked the District Court's standing reference to the Bankruptcy Court for her bankruptcy. While the Judges of the Ninth Circuit that heard the comely young woman's opponent's complaint -- and overruled it, Judge Kozinski wrote a compelling dissent that identified exactly what was wrong with Judge Real's conduct.

The entire opinion can be read here.

Charges filed: Ongoing saga of masturbating former judge Donald Thompson

The Oklahoma judge who was forced from the bench in 2004 for using a penis pump in court was charged on January 21, 2005, with indecent exposure for his judicial indiscretions. Donald Thompson, 58, entered a not guilty plea yesterday to three felony counts during an appearance in Creek County District Court, where he worked until resigning last August. According to the probable cause affidavit, Thompson exposed himself during three separate 2003 cases (two of which were murder trials). For example, on May 13, while he was presiding over State v. Kurt Arnold Vomberg (who was accused of killing his girlfriend's 21-month-old daughter), Thompson loudly pumped himself up. Two court employees told investigators that they saw Thompson (pictured in the mug shot at right) attach the suction device to his penis, while five jurors reported hearing whooshing sounds, which they thought were coming from either a bicycle pump, blood pressure cuff, or an air cushion on the judge's chair. After a January 7 search of Thompson's former courtroom and chambers yielded items that tested positive for seminal fluid, investigators secured a search warrant to obtain a DNA sample from the ex-jurist. During testimony last year before the Council on Judicial Complaints, Thompson denied masturbating on the bench, using the penis pump, or depositing urine or semen into a wastebasket under his bench. Thompson's demise was triggered by a complaint filed against him in June of 2004 by the Oklahoma Attorney General, who sought to oust the jurist for a variety of illicit behavior, which the AG detailed in a removal petition. Along with using the penis pump, Thompson also allegedly shaved and oiled his private parts, according to accounts given to state investigators by a clerk, trial witnesses, and a court reporter. If convicted of the indecent exposure counts, Thompson could face a maximum of 10 years in prison on each charge.

Since the charges being filed, the prosecutors have amended the complaint. It appears that Thompson will stand trial this month.

Although there is a din over this incident, it sounds like this fellow is simply crazy. But, once again, there were attorneys and other judges who were aware that he was misbehaving yet did nothing to stop him. His misbehavior was likely not limited to improper sex conduct in court. Why didn't someone complain about him before?

Brave Public Defender Michael Pentz risks contempt to protect his client; Commission on Judicial Performance Vindicates His Honor.

Deputy Public Defender Michael Pentz deserves a medal for his courage "under fire" from this psychopathic judge in defending his clients rights. The Judge Ruffo Espinosa, Jr., merely took a public admonishment for his conduct; I suppose its better than nothing. I was hoping that Justice McConnell would have urged the commission to take this matter a little more seriously. Here's the order in its entirety:


STATE OF CALIFORNIA
BEFORE THE COMMISSION ON JUDICIAL PERFORMANCE

IN THE MATTER CONCERNING
JUDGE RUFFO ESPINOSA, JR.


DECISION AND ORDER IMPOSING PUBLIC ADMONISHMENT




This disciplinary matter concerns Judge Ruffo Espinosa, Jr., a judge of the Los Angeles County Superior Court. Judge Espinosa and his attorney, Edward P. George, Jr., appeared before the commission on February 1, 2006 pursuant to rule 116 of the Rules of the Commission on Judicial Performance to contest the imposition of a public admonishment. Having considered the written and oral objections and argument submitted by Judge Espinosa and his counsel, and good cause appearing, the Commission on Judicial Performance issues this public admonishment pursuant to article VI, section 18(d) of the California Constitution, based upon the following Statement of Facts and Reasons:


STATEMENT OF FACTS AND REASONS

Judge Ruffo Espinosa, Jr., is a judge of the Los Angeles County Superior Court. His current term commenced in January 2001.

In the case of People v. Netterville, BA220480, which was before Judge Espinosa on October 30, 2003, October 31, 2003, January 29, 2004, and February 5, 2004, Judge Espinosa denied the defendant full opportunity to be heard through counsel regarding sentencing, treated defense counsel in a rude and impatient manner, and abused the contempt power by holding in contempt and immediately incarcerating an attorney who had sought to be heard on his client’s behalf.

Defendant Netterville appeared before Judge Espinosa on a probation violation matter on October 30 and 31, 2003. On October 31, 2003, after finding the defendant in violation of probation, Judge Espinosa ordered a diagnostic study pursuant to Penal Code section 1203.03.

On January 29, 2004, the defendant was returned to court after the Department of Corrections had issued a report following the diagnostic study, recommending state prison. When Judge Espinosa asked defense counsel, Deputy Public Defender (DPD) Michael Pentz, if he wished to address the court, DPD Pentz presented his position that the recommendation from the Department of Corrections was “sort of a split decision[,]” (R.T. 1:27) with the psychologist’s report recommending that the defendant be granted probation, to include conditions that he successfully complete alcohol and drug treatment programs, and the associate warden making the “official recommendation” (R.T. 2:17–18) of commitment to state prison. Judge Espinosa stated that he was “going to look at and consider the overall recommendation, which is that [the defendant is] not amenable [to probation]” (R.T. 2:25–26) because he had attempted to minimize his culpability and had expressed no remorse for stabbing his cohabitant. The judge then said:

I have considered and read [the report], and I don’t think I need to put more on the record so the Court does intend to follow the recommendations of the California Department of Corrections. [] Waive time for sentencing?

(R.T. 3:3–7.)

DPD Pentz said that he was still responding to the court’s question as to whether he wished to be heard. DPD Pentz then pointed out that the warden’s overall recommendation of state prison was based on a recommendation from a correctional counselor who had based his recommendation on incorrect information about the defendant’s criminal history. DPD Pentz said that the counselor’s report referred to a criminal history of over twenty years, although the defendant’s first misdemeanor conviction was actually in 1995. Judge Espinosa stated that he did not have any trouble continuing the matter to get more complete information about the defendant’s criminal history, and added that in view of the split decision and the defendant’s minimal criminal history as set forth in the probation report, he would be “hard pressed” (R.T.6:3) to send him to prison based on his record. The matter was continued to February 5, 2004, and the prosecutor was asked to get more complete information about the defendant’s criminal history.

At the beginning of the hearing on February 5, Judge Espinosa noted that the defendant had performed poorly on probation. He mentioned the conclusions of the Penal Code section 1203.03 report, and said that he had looked at various letters that had been submitted on the defendant’s behalf. He considered a letter from the defendant. Addressing the defendant, the judge expressed concern about the defendant’s “multiple arrests” (R.T. 3:16) for assaults, the previous conviction for which he was placed on probation, and the violence of the incident giving rise to the probation violation. Judge Espinosa told the defendant that stress was not an excuse for violence. He noted again that the defendant had not done well on probation. Judge Espinosa said that since the defendant’s history was “not that aggravated” he would “offer” (R.T. 4:28) the mid-term of three years in state prison.

DPD Pentz asked to be heard. Judge Espinosa replied, “Of course, I’m going to allow you, but I’m just telling you how I view this. I want you to know that I’m willing to be swayed. Okay?” (R.T. 5:27–6:2.) The judge added:

And I’ve been going on this case back and forth for quite a long time, and I’m tired. And the county, frankly, is under monetary restraints right now. What are we going to do, send him back to probation so he can do the same thing over and over again? [] You know, this gets old after a while so go ahead and make your pitch.

(R.T. 6:7–14.)

The prosecutor then reminded Judge Espinosa that he had asked her to check the defendant’s record; she mentioned the defendant’s three prior arrests in the 1980’s as well as his misdemeanor conviction in 1995, another conviction in 1996, and his performance on probation. When asked to respond, DPD Pentz pointed out that an arrest cannot be considered “aggravating in any way.” (R.T. 7:23.) Judge Espinosa said he agreed an arrest should not be used against a person, and then asked, “What if a person has ten arrests for the same offense over and over again. Isn’t that a little unusual?” (R.T. 8:1-3.) DPD Pentz responded by describing the defendant as someone with a mental illness who tended to self-medicate with alcohol and sometimes with drugs. Judge Espinosa asked if someone who self-medicates with alcohol is “any less of a danger than someone that’s just a bad guy?” (R.T. 8:25–26.) DPD Pentz said that someone who is mentally ill and self-medicates with alcohol “needs to be a part of a structured program that addresses those concerns.” (R.T. 8:28–9:2.) Judge Espinosa noted that the defendant had previously been evaluated by a psychologist and psychiatrist; he said, “We had a 1368 [competence proceeding].” He added, “You know, frankly, I don’t want to keep him on probation anymore.” (R.T. 9:7–8.) Upon being informed by the prosecutor that the judge already had found the defendant in violation of probation, the judge said, “All right. So you know frankly, Counsel, let’s stop wasting our breath.” (R.T. 9:15–16.) He then said that he would impose a sentence of three years in state prison.

This exchange followed:

MR. PENTZ: Your Honor, I’m sorry to interrupt the Court, but I’ve yet to speak to what is an appropriate sentence in this case.

THE COURT: All right.

MR. PENTZ: And I know the Court is busy, but I don’t think speaking on behalf of my client is a waste of anybody’s time.

THE COURT: Counsel, I’m never too busy.

MR. PENTZ: I would just ask the Court for leave to speak without interruption. The Court seems to have made up its mind, but I haven’t had a chance --

THE COURT: Frankly, I have made up my mind.

MR. PENTZ: I got that from the last hearing when I was unable to speak, but now I really want to address the Court and on the record.

THE COURT: I want it clear that you’re addressing the Court for the benefit of the record.

MR. PENTZ: Well, actually, I’m exercising my client’s right to have him represented in court.

THE COURT: It’s not going to sway me to give him any less because I have considered this. I already know what you’re going to say[,] frankly. [] You’re going to talk about his mental illness, what a good guy he is, all the letters of recommendation, and so on and so forth, and I’ve taken all that into account. [] I’ve also taken into account the psychiatric reports, and I’ve looked at his history and his behavior while he has been on probation to me [sic], and yes, I do have a calendar. But if you want to make a record, I’ll sit back, sway on my chair, and then you can put five minutes worth. All right? [] Go ahead.

(R.T. 9:26–11:4.)

DPD Pentz said that his remarks might not even take five minutes. He noted that resources were “stretched everywhere” (R.T. 11:10) and said that it would not help to lock the defendant up and then release him back into the community. Less than one minute after DPD Pentz began speaking, as he began to refer to a letter that had been submitted to the court, Judge Espinosa interrupted to ask when the defendant had been arrested, saying that he wanted to calculate his credits [for jail time already served]. DPD Pentz then mentioned “community reintegration” (R.T. 12:14) and rehabilitation, and began to describe a specific program he had looked into for the defendant:

MR. PENTZ: What we do have in place is Mr. Netterville has people at Oasis House and a program whose funding and --

THE COURT: Excuse me a second, sir. I have to calculate the credits because I know what I’m going to do. All right?

(R.T. 12:22–27.)

A discussion of credits followed. Judge Espinosa secured counsel’s agreement as to the amount of credit, and this exchange followed.

THE COURT: All right. Then Mr. Netterville, you are sentenced to --

MR. PENTZ: Your Honor, the Court still has not allowed me to complete --

THE COURT: Okay, Counsel --

MR. PENTZ: I’m disheartened here.

THE COURT: Counsel, you be quiet. I’ve made up my mind. I’m not going to listen -- one more peep out of you, and you’re in contempt of court. Do you understand this?

MR. PENTZ: I understand that.

THE COURT: All right. Then be quiet.

(R.T. 14:3–14.)

Judge Espinosa proceeded to sentence the defendant to three years in state prison. When he finished, he said, “Next case.” (R.T 15:15.) This exchange followed:

MR. PENTZ: I’d like to state as [sic] an objection to these proceedings, Your Honor, with what I take to be the cavalier way with which this Court --

THE COURT: All right, Counsel, that will be $50.00.

MR. PENTZ: Your Honor, the Court is going to have to set --

THE COURT: Do you want to go for a hundred?

MR. PENTZ: If the Court can set it for $250, I want [a] hearing on it, and I want to order a transcript.

THE COURT: That will be $250. You are sanctioned. That will be payable -- I’ll give you a chance to appeal this.

MR. PENTZ: Judge, I’m requesting a hearing.

THE COURT: This is a direct --

MR. PENTZ: I’m requesting a hearing. I hope the Court understands my request.

THE COURT: Your request for a hearing is denied. You’ve already had a hearing. How many hearings do you want?

MR. PENTZ: A hearing on an order to show cause is a fundamental law, Your Honor. I’m asking for that. I’ll bring you the Penal Code -- the civil code section if you wish.

THE COURT: This is a direct contempt of court, and you are ordered to pay the sum of -- what did we say? -- $250?

MR. PENTZ: I think that was the last sum, yes.

THE COURT: Payable by -- when can you pay that? -- or five days in the county jail. What do you want?

MR. PENTZ: Judge, it’s --

THE COURT: All right. Do you want five days in the county jail?

MR. PENTZ: I’m ready to surrender.

THE COURT: Take him in. That’s five days in the county jail, Counsel.

(R.T. 15:16–17:2.)

Attorney Pentz was removed from the courtroom and taken to a holding cell. After unrelated matters were heard, Mr. Pentz appeared before Judge Espinosa, represented by Chief Deputy Public Defender Greg Fisher. Judge Espinosa told DPD Pentz that he had given the judge no alternative but to remove him from the courtroom; Judge Espinosa said that Mr. Pentz had continued to disobey the court after being warned, and had “openly insulted” the court. (R.T. 17:16.) The judge said that he was going to impose five days in jail, and that he would stay the sentence because he knew that DPD Pentz was an attorney and might want to seek review. Judge Espinosa also said it was “entirely false at least from this Court’s perspective” (R.T. 19:6–7) that he had not given DPD Pentz an opportunity to speak or to fully state his position as to defendant Netterville’s sentence. He said that “this attorney kept on arguing even after the Court made a ruling[,]” and that he was “deeply insulted by this behavior.” (R.T. 19:17–20.) Judge Espinosa added that unless there was some reason for a further stay, DPD Pentz should “bring [his] toothbrush” (R.T. 19:22–23) when he next appeared.

Judge Espinosa issued a written order of contempt, dated February 5, 2004 and filed on February 9, 2004. The order stated that DPD Pentz continued to argue after being ordered to be quiet; used the word “cavalier,” an insult, in open court; argued that he was entitled to a hearing on contempt and “further insulted the court by insinuating that the court didn’t understand that he was entitled to a hearing”; and “sarcastically threw his hands in the air [and] waved them” while saying that he was ready to surrender. The order further stated that the court “felt compelled to order Mr. Pentz removed from the court room [sic] in order to continue the orderly process of other court proceedings[,]” and included a finding that DPD Pentz “had knowledge of the order and was able to comply by simply taking a writ without the necessity of mocking the court and challenging it to find him in contempt.”

On May 28, 2004, Orange County Superior Court Judge Daniel Didier, sitting by assignment, granted DPD Pentz’s petition for a writ of habeas corpus, annulling the contempt order. Judge Didier concluded, after examining the record to determine whether there was any substantial evidence to support the contempt finding, that “the record in this case does not disclose a clear instance of disorderly, contemptuous, or insolent behavior towards the respondent court tending to interfere with the due course of a trial or other judicial proceeding within the meaning of Code of Civil Procedure § 1209(a)(1).” Judge Didier noted that although DPD Pentz was allowed to comment on his client’s situation, he “was not afforded an opportunity to fully advance plausible sentencing options deemed appropriate for the defendant’s situation”; instead, Judge Espinosa interrupted DPD Pentz, directed him to be quiet, and warned him that he would be in contempt if he spoke again. According to Judge Didier, “To the extent the contempt adjudication is premised on [DPD Pentz’s] failure to observe [Judge Espinosa’s] order to remain silent, such order is without evidentiary support as [Mr. Pentz’s] conduct was not contemptuous. A lawyer has a duty to protect and advance the interests of his or her client at all times. This duty encompasses the right to make objections or advance other points in the client’s behalf in a timely manner.” Judge Didier also stated that although DPD Pentz was not entitled to a hearing on a direct contempt, his repeated requests for such a hearing, apparently made in good faith, did not constitute contempt. Finally, Judge Didier rejected the notion that DPD Pentz’s use of the word “cavalier” constituted contempt, noting that “cavalier” has varying meanings. Judge Didier stated that to the extent the contempt finding might have been based on language that was not in itself contemptuous, offensive tone, and/or mannerisms such as facial expressions or gestures, a judge must warn an attorney before taking disciplinary action. Judge Didier pointed out that “contempt is a drastic remedy which should be used only when necessary in order to maintain law and order[,]” and concluded that the record “simply does not reveal the quantum of substantial evidence necessary to sustain the order of contempt issued by [Judge Espinosa].”

In addition to DPD Pentz’s petition for habeas relief, an appeal of defendant Netterville’s conviction was filed, based on Judge Espinosa’s alleged failure to allow the defendant to be heard through counsel at sentencing. On January 7, 2005, the Court of Appeal issued its decision vacating the defendant’s sentence and remanding the matter for resentencing before a different judge. (People v. Charles Netterville (January 7, 2005, B173174) [nonpub. opn.] [2005 Cal.App.Unpub. LEXIS 197] (People v. Netterville).) The appellate court found that Judge Espinosa handled the Netterville case properly up to the point at which he stated that he intended to sentence the defendant to the midterm in state prison but was willing to be swayed. According to the Court of Appeal, however, shortly thereafter Judge Espinosa said that he had made up his mind, stated that further argument would not sway him, suggested that he would be inattentive by saying that he would “sit and sway” in his chair while DPD Pentz spoke, and quickly interrupted defense counsel’s argument with a question about calculating sentence credits, indicating that he was not listening. (Id. [pp. 28, 40].) The appellate court found that Judge Espinosa “not only precluded Pentz from completing his argument, but refused to listen during an earlier portion of that argument.” (Id. [p. 43].) The Court of Appeal held that Judge Espinosa “committed a miscarriage of justice and reversibly erred in violation of appellant’s rights to counsel and fair trial by precluding Pentz from completing his sentencing argument.” (Ibid.)

With respect to the contempt issue, the Court of Appeal determined that Judge Espinosa ordered DPD Pentz immediately into custody in violation of the mandatory stay provisions of Penal Code section 1209(c), which provides that, subject to certain exceptions, when an order of contempt is made affecting an attorney, the execution of any sentence shall be stayed for three court days. The appellate court noted that the judge apparently was aware of the provision, having referred to it when DPD Pentz reappeared with counsel by stating that he knew he would have to stay the sentence because DPD Pentz was an attorney. (People v. Netterville, supra [p. 46].) The appellate court also found that when DPD Pentz appeared with counsel, Judge Espinosa mischaracterized the record of the proceedings leading to the contempt finding, and later made various material omissions and misstatements in the written contempt order. (Ibid. [pp. 48-51].) Based on these findings, the Court of Appeal held that there was a doubt that Judge Espinosa could maintain his objectivity, and that the case must be remanded for resentencing before a different judge.

Judge Espinosa’s conduct in this matter constituted, at a minimum, improper action. By denying the defendant a full right to be heard, through counsel, regarding sentencing, the judge violated canon 3B(7) of the Code of Judicial Ethics, which requires that a judge accord to every person who has a legal interest in a proceeding, or that person’s lawyer, full right to be heard according to law.

In addition, Judge Espinosa’s treatment of DPD Pentz constituted serious misconduct. Judge Espinosa held DPD Pentz in contempt in contravention of the mandatory stay provisions of Code of Civil Procedure section 1209(c). Further, as stated by the Court of Appeal, DPD Pentz was held in contempt and made to suffer “the ignominy of being removed from the courtroom simply for doing his job.” (People v. Netterville, supra [p. 42].) The power of a judge to silence an attorney does not arise until after the attorney has had a reasonable opportunity for legitimate advocacy. (See Cooper v. Superior Court (1961) 55 Cal.2d 291, 298.)

Judge Espinosa’s conduct also was contrary to canon 2A, which provides that a judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, canon 3B(2), which requires that judges be faithful to the law, and canon 3B(5), which requires that judges perform judicial duties without bias or prejudice. In addition, the judge’s treatment of DPD Pentz was contrary to canon 3B(4), which requires judges to be patient, dignified and courteous toward those with whom the judge deals in a judicial capacity.

Commission members Mr. Marshall B. Grossman, Judge Frederick P. Horn,
Mr. Michael A. Kahn, Mrs. Crystal Lui, Justice Judith D. McConnell, Ms. Patricia Miller,
Mr. Jose C. Miramontes, Mrs. Penny Perez, Judge Risë Jones Pichon, Ms. Barbara Schraeger and Mr. Lawrence Simi voted to impose a public admonishment.




Dated: February 9, 2006 _______________/s/___________________

Marshall B. Grossman
Chairperson

Another corrupt jurist gets to keep his retirement.

Judge Danser also lucked out and avoided the scrutiny of Justice McConnell. Lucky him. Had he not finished his proceedings before Justice McConnell began her participation, he might not have been able to still be called a judge. As it stands, he simply can't work anymore. But, who cares, he still gets to receive that hefty benefit package reserved for retired jurists in California; even if he is a crook that fixed cases for friends. In the defense of Judge Danser, it was only traffic ticket cases that were being fixed.


Censure and Bar of Judge William R. Danser June 2, 2005

Judge William R. Danser (Retired), formerly a judge of the Santa Clara County Superior Court, was ordered censured and barred from receiving any assignment, appointment or reference of work from any California state court on June 2, 2005, for willful misconduct in office. The Commission’s action concluded formal proceedings, during which there was a report by three special masters based on a settlement agreement between the parties. Judge Danser retired on the day the hearing before the special masters was to begin, and stipulated that the charges against him were to be determined based on the transcript and exhibits from the judge’s criminal trial, in which he was convicted of a felony and seven misdemeanors. The judge also stipulated that certain other charges were true, and that at a minimum, his actions constituted prejudicial misconduct; the judge further stipulated that the Commission could issue a censure and bar against him.

The Commission concluded that Judge Danser improperly transferred to his court and then dismissed 24 traffic infraction cases involving 20 different defendants. Many of these defendants (some of whom were members or associates of a local professional hockey team) had a relationship with a police officer who was a friend of the judge’s; others included friends and acquaintances of the judge and the father of the judge’s court reporter. The Commission concluded that the judge’s actions violated canons 2, 2A, 2B(1), and 2B(2); some of the judge’s actions also violated canons 3B(7), 3B(8), 3E(1), and 3E(2). The Commission concluded that the judge engaged in willful misconduct, as his actions in the traffic matters constituted a “corrupt scheme of affording preferential treatment to his inner circle.”

The Commission further concluded that Judge Danser improperly transferred to his courtroom four misdemeanor driving under the influence cases, and that after the transfers, he afforded procedural preferences and imposed more lenient sentences than the defendants otherwise likely would have received. The Commission concluded that the judge’s actions, which were taken to benefit defendants with contacts in the judge’s inner circle, were willful misconduct.

The Commission concluded that Judge Danser also committed willful misconduct when he made efforts to have a local police department dismiss a traffic citation and two parking citations issued to the judge’s son. In telephone conversations and in written correspondence, on official stationery, the judge threatened to retaliate against the police department by no longer “making himself available” to the department; the judge also made misleading and sarcastic comments, and expressed anger. The Commission concluded that the judge’s actions violated canons 1, 2, 2A, 2B(1), 2B(2), and 3B(4), and were taken for the corrupt purpose of obtaining favorable treatment for his son. In addition, the judge attempted to order his son’s parking citations dismissed; the Commission found that this was a flagrant abuse of judicial power and was contrary to canon 3E(1), requiring disqualification in certain circumstances.

Finally, the Commission concluded that Judge Danser engaged in willful misconduct when he denied a deputy district attorney’s request for a transcript in one of the driving under the influence cases he handled improperly, and tried to intimidate her and her office from pursuing the matter by making angry, crude and discourteous comments. The Commission found that the judge’s actions were taken for the corrupt purpose of inhibiting the gathering of evidence concerning his handling of the case.

In deciding discipline, the Commission noted that Judge Danser had agreed that his conduct warranted a censure and bar. Stressing the egregiousness of the judge’s behavior, the Commission stated that its opinion was issued “as an unqualified denunciation of all of Judge Danser’s misconduct in an effort to enforce rigorous standards of conduct,” and for the purpose of rehabilitating public confidence in the integrity and independence of the judicial system “by censuring Judge Danser in the strongest terms possible.”

Commission members Mr. Marshall B. Grossman, Judge Frederick P. Horn, Mr. Michael A. Kahn, Mrs. Crystal Lui, Ms. Patricia Miller, Mr. Jose C. Miramontes, Mrs. Penny Perez and Ms. Barbara Schraeger voted to impose a censure and bar. Former Commission member Justice Vance W. Raye abstained from the vote because he would complete his term as a member prior to the completion of the written decision. Commission member Judge Risë Jones Pichon was recused. Commission member Justice Judith D. McConnell had not been appointed to the Commission at the time of the vote and did not participate in the decision. There was one public member vacancy on the Commission at the time of the decision.

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