No excuses

In 2 recent cases, the California Commission on Judicial Performance rejected several arguments the respondent judges raised to defend their discourteous conduct.

In 1 case, the judge had interrupted and spoken sharply, irritably, sarcastically, and impatiently to 2 defense attorneys who had appeared for an arraignment by phone the first day after the governor had issued the COVID-19 stay-at-home order.  The attorneys had asked for and received the judge’s permission to appear by phone because they were concerned about having been exposed to the virus and the possibility of spreading it at the courthouse.  They had tried but failed to get another attorney to appear for them at short notice.

Both attorneys argued for the defendants’ release on their own recognizance based on health concerns that made them vulnerable to the virus if in custody.  In response to one of the attorney’s reliance on a letter from his client’s doctor, the judge asked, for example, “How am I going to see that letter, if you’re not in my courtroom?” and made similar comments.  When he imposed bail of $150,000, he said, “if you have those letters, you can bring those in at” the preliminary hearing.  To the second defendant’s attorney as well, the judge stated:  “If you wished to present this evidence, you should have been here or had someone represent you” before imposing bail of $100,000.

In the judge’s response to the preliminary investigation letter, he acknowledged that he “should not have demonstrated irritation or impatience with defense counsel” and that he “spoke too sharply” to them.  He asked the Commission to consider “the highly unusual circumstances present at that time:”  the court had not yet implemented remote operations; it was not clear how long the stay-at-home order would be in effect; and there was no clear guidance about handling a request to appear telephonically at a criminal proceeding.

The Commission acknowledged that the circumstances were challenging but noted that the unusual circumstances also affected the defense attorneys and concluded that “the initial lack of clarity . . . did not excuse or explain the judge’s mistreatment of the attorneys.”  The Commission emphasized that there was “no evidence of provocative conduct by counsel,” noting that the judge had given them permission to appear by telephone and they appeared polite and respectful.  At his appearance before the Commission, the judge acknowledged that the transcript “looks bad,” but did not display contrition or admit that he committed misconduct, arguing instead that he had not treated the “attorneys any differently because they were not in the courtroom.”

In addition, in a case in 2018, the judge had made a gratuitous, undignified, and improper comment after a jury had acquitted defendant Eugene Germany but convicted his co-defendants, including Dalisha Jordan.  After the jurors left the courtroom, the judge said to Germany:

Let me tell you, you’ve been given a gift from God because there’s no question in my mind that you’re guilty of this crime. . . .  I’ll tell you, chivalry is not dead.  If you’d taken the deal, Ms. Jordan would have had that six year deal.  She’s going to get a lot more time than that.  So, you know, take that into consideration.  All right.  But you’ve been given a gift.  What you do with it is your choice.  Fair enough?

Germany responded, “Yeah.”

At his appearance before the Commission, the judge asserted that what he did “was right” and “what [he] should have done” and that it was his “duty” and his “responsibility” as a judge to advise Germany that he had been “given a gift from God” so that “Germany would take advantage of opportunities he has been given.”  However, the Commission explained that “a judge does not have a duty to advise a criminal defendant that the defendant has been given the gift of an acquittal.  While a judge may encourage a defendant to make better choices and take advantage of opportunities in the future, the judge must not do so at the expense of the jury and its verdict.”

The Commission publicly admonished the judge for his comments in these 2 cases.  In the Matter Concerning Connolly, Decision and order (California Commission on Judicial Performance April 2, 2021).

* * *
The California Commission publicly admonished a retired judge for (1) a pattern of poor demeanor in 10 dependency hearings over which she presided in 2019 and 2020; and (2) on consecutive days, yelling at court staff and displaying frustration about an internet outage and discourteously raising her voice to another judge.  Public Admonishment of Roberts (California Commission on Judicial Performance February 18, 2021).

The Commission concluded that the judge’s “misconduct involved harsh and degrading treatment of multiple vulnerable and struggling parents in dependency,” finding that “the number and nature of these incidents indicate a pattern of misconduct.”  For example, in 4 dependency hearings in the same case involving 2 siblings, the judge, among other comments and conduct, impatiently reprimanded the mother for something she did not do and stated that the father was “talking out of both sides of his mouth,” failed to get reimbursed for transportation expenses “because he didn’t feel like doing it,” and was “being uncooperative,” as the father tried to explain his request for replacement forms.  The judge also rolled her eyes, shook her head, argued with the parents, and declared that she could order the mother to do whatever she wanted.  In addition, the judge incorrectly accused the mother of being on a very high dose of heroin every day; derisively discussed the mother’s drug treatment records; said, without evidence, that there was “extreme violence” in the parents’ home; and said that the parents had turned into “very nasty people.’”  The Commission also found that, during those 4 hearings, the judge abused her authority by substituting her own judgment for that of the mother’s doctor on the issue of prescription marijuana and methadone use; abandoned the role of a neutral arbiter and became embroiled when she argued with the parents about the mother’s marijuana use; and repeatedly and negatively commented on the mother’s prescription use of methadone.

In hearings in other cases, the judge made remarks to parents, such as, “Don’t lie to me;” “that is a lie;” “appalling;” “That doesn’t help me at all.  How can I remember when you came to court last?”; “That’s baloney;” and “That’s why these children were detained.  Not because you made a stupid decision.”  The judge called a father’s lack of alcohol treatment “pathetic;” told parents, “Both of you are doing terribly, and there isn’t a chance in the world these children are coming home if you continue doing what you’re doing;” and said to a mother, “You’re clean?  And you expect me to believe that?”

In response to the Commission’s preliminary investigation, the judge blamed her frustration on the parents’ behavior and explained that “she employed a ‘tough love’ approach that she also used while presiding in drug court, arguing that her approach was necessary to compel parents to gain awareness of the harm they were causing their children and to change their behavior.”  However, the Commission found that “belittling and demeaning litigants is not appropriate in any court, dependency, criminal, or otherwise.  Such conduct violates the Code of Judicial Ethics.” 

6 of the hearings had taken place on January 8, 2020, the first day after the dependency court was moved from Chico to Oroville, in a consolidation plan the judge disagreed with.  Also on January 8, there was a court-wide internet outage that delayed the judge’s already-full calendar.

Sometime during the morning, a court staff member entered the judge’s courtroom to bring the courtroom clerk a message.  The judge appeared frustrated and upset by the lack of internet service and yelled, “This is ridiculous!”  Later that morning, another court employee heard the judge come out of her courtroom yelling, “This isn’t working!  This isn’t working!”  As the judge walked down the hall toward the clerk’s office, her voice continued to be raised.

The judge approached a staff member’s desk and yelled, “This is my worst nightmare coming to Oroville.  I never wanted this to happen.  Fix it immediately!”  or words to that effect.  The staff member offered to see if she could move the judge to another courtroom, but the judge yelled that she was not moving to another courtroom.  Then the judge turned and loudly stomped down the internal hallway toward the courtroom and her chambers.

At some point during the lunch hour, the judge returned to the clerk’s office and loudly demanded that a clerk request that a courtroom be opened in the Chico courthouse because a matter on her afternoon calendar had been incorrectly noticed for Chico.  The juvenile clerk contacted a supervisor who said that the court staff in Chico had decided not to open another courtroom.  When the clerk told the judge, she appeared to be very upset and left the clerk’s office.

Court staff heard the judge return to her chambers and slam both her outer and inner doors.  Later, when a court supervisor repeatedly knocked on the judge’s closed outer door, the judge refused to respond.

A few minutes later, the judge returned to the clerk’s office.  The judge was very upset and appeared to have been crying.  She began screaming and pointing her finger at one of the supervisors, demanding that court staff open a courtroom in Chico.  The supervisor attempted to calm the judge and explain the alternative plan to opening the courtroom.  But the judge refused to listen, repeatedly interrupted, and continued to scream and point her finger.  The judge then turned and walked out with the supervisor following.  The judge stopped in the middle of the clerk’s office, and yelled, “Fine!  I’ll just do this myself!” in front of a number of court employees.

Shortly thereafter, the judge emailed the presiding judge to tell her that she was sick and going home; she then left the courthouse.  Court staff expressed concern for the judge and concern that the public may have overheard her outbursts.

The following day, the judge returned to the courthouse and apologized to court staff for her behavior.

Judge Roberts asked the assistant presiding judge why she could not be moved to a specific other courtroom.  When the assistant presiding began to explain, Judge Roberts spoke to her with a raised voice.  The assistant presiding judge told Judge Roberts that she was going to leave if Judge Roberts continued to yell and that yelling at her or at court staff was not acceptable.  As the assistant presiding judge left chambers, Judge Roberts said derisively, “Thanks for the support.”

The judge acknowledged her mistreatment of staff, her misconduct in the courthouse, and her discourtesy to the assistant presiding judge; sincerely regretted “her lack of composure;” and recognized that her behavior was not appropriate.

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