ALAMEDA COUNTY: State commission says, in 6-1 vote, that jurist is unlikely to repeat his mistake
By Chris Metinko

Article Launched: 06/27/2007 03:02:56 AM PDT
An Alameda County judge has received a severe censure from a state judicial commission for missing deadlines to make rulings in more than 20 cases but will be allowed to remain on the bench.
Judge Robert Freedman received the reprimand Tuesday from the state's Commission on Judicial Performance. The commission found that Freedman did not make the 90-day deadline in 21 cases from 2000 to 2004 and also routinely signed salary statements saying he had no matters on hold past that deadline.  More...

Wish to read the censure?  Please click the link below.

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By Bruce Gerstman

Public Defender David Coleman has asked that a justice from the state Court of Appeal order Contra Costa Superior Court Executive Officer Ken Torre to provide documents associated with a new contract for juvenile dependency attorneys.  More...

An internet child abuser has been sentenced to jail following a lengthy case involving evidence gathered by illegal hacking.

66-year-old Ronald C Kline, a former senior judge from California, has been sentenced to 27 months in jail for possessing child pornography. Kline was initially brought to the attention of the authorities after his computer was infected by a Trojan horse planted by Canadian hacker Brad Willman.

Willman planted the Trojan horse, disguised as images of child abuse, on an internet newsgroup visited by pedophiles in 1999. The hacker, who used the handle Omni-Potent, broke into the PCs of those he infected, focusing on those he suspected of being involved in child abuse.

"Ronald Kline's conviction has brought to the end six years of legal arguments about whether evidence gathered by the Trojan horse was admissible," said Graham Cluley, senior technology consultant for Sophos. "Few will shed tears over Kline going to prison, but the case does raise interesting questions over whether illegal hacking and the distribution of malware can ever be justified. Some may worry that this case will be viewed as a green light for other hackers to infect computers with their malicious code."

It should be noted that malware has played its part in the successful conviction of other child abusers in the past.

In December 2005, a German man turned himself into the police after believing that an e-mail sent to him by the Sober worm was really a warning from the authorities investigating customers of illegal Web sites. In 2003, a judge said he was uncomfortable that the FBI had not told an anonymous hacker to stop his illegal activities because of information he was passing onto them.

January 9, 2007

Retired San Diego Superior Court Judge Vincent DiFiglia was publicly admonished by the state Commission on Judicial Performance Tuesday for not disclosing his relationship with the lawyer for developer Roque de la Fuente in a high-profile trial which ended with a $94.5 million verdict against the city of San Diego.  More...

Wish to read what the state Commission of Judicial Performance reported?  Please click the link below.

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The Commission on Judicial Performance is the independent state agency in California responsible for investigating complaints of judicial misconduct and judicial incapacity and for disciplining judges, pursuant to article VI, section 18 of the California Constitution.

The Commission's jurisdiction includes all active California state court judges. The Commission also has authority to impose certain discipline on former judges and has shared authority with local courts over court commissioners and referees. The Commission does not have authority over federal judges, judges pro tem or private judges.

The Commission acts on complaints it receives. Anyone may submit a complaint.
See [ Filing a Complaint ].

State of California
Commission on Judicial Performance
455 Golden Gate Avenue, Suite 14400
San Francisco, CA 94102
Tel: (415) 557-1200
Fax: (415) 557-1266

See More Information on Judges Caught Being BAD...

FEBRUARY 26, 2007 | A former California judge was sentenced this week for possession of child pornography, six years after a vigilante hacker infiltrated his computer with a Trojan horse computer program designed to weed out pedophiles.

Former Orange County Superior Court Judge Ronald C. Kline, 65, of Irvine, Calif., was sentenced Feb. 20 to 27 months in federal prison for possessing thousands of images of under-age boys engaged in sexually explicit conduct. He pleaded guilty in December 2005 to four counts of possession of child pornography, admitting that the images of child pornography were on his home computer, two floppy disks, and one portable disk drive, according to a written release from the U.S. Attorney's Office in the Central District of California.  More...

By VIRGINIA HENNESSEY

For years, many Monterey County defense attorneys have complained that judges Russell Scott and Robert Moody are pro-prosecution. Recent statements by Moody may shed light on those concerns.

In recent weeks, in court and to The Herald, Moody has made comments questioning the integrity of defense lawyers and one of the basic tenets of the American justice system -- the presumption of innocence.

In late April, in his Salinas chambers, Moody questioned The Herald's request to view the court file of one of three Toro Park teenagers charged with a home invasion robbery. Moody said the file was empty save for an unusual pretrial packet filed by Salinas attorney Juliet Peck, a defense attorney in the case.

Moody said the lengthy document, which contained dozens of letters in support of the young man, was one-sided and shouldn't be given credence. In general, he said, documents filed by prosecutors were more balanced because they were based on investigation.

Moody criticized the media for talking to defense attorneys because, he said, they never speak the truth, they only say what is in the best interest of their clients.

The Code of Judicial Ethics requires judges to be impartial.

On Thursday, Moody said the comments were misinterpreted, that what he meant was that all attorneys were advocating for clients and shouldn't be viewed as impartial.

"It surprises me when attorneys are constantly put in that posture (by the media) when they are in fact advocating for a client," he said. "I wasn't trying to disparage anybody. I think what I meant was that they shouldn't be given the status of impartial comments."

Peck, the attorney who wrote the document, said the comments were troubling.

"I am shocked, disturbed and deeply disappointed to learn of Judge Moody's comments regarding a filing by our firm," Peck said last week. "It's really very extreme and raises serious questions Judge Moody's statements, I'm sure, are deeply unsettling to the entire defense community and should be to the entire legal community."

Asked how she would approach the issue in future hearings for their client, Bobby Barminski, Peck said, "At this point we're simply absorbing the comments the judge made and what seems most appropriate is for him to recuse himself."

Perhaps more surprising were comments that Moody made during a court session Thursday morning.

Mario Trujillo, 20, was in court for sentencing on conviction for possession of a weapon from which the serial number had been removed, and for a gang enhancement. Trujillo was convicted of the charge in September by a jury, which hung 8-4 for acquittal on an unrelated murder charge.

Prosecutor Carol Reed argued for a prison sentence based on Trujillo's gang affiliation. Trujillo's lawyer, Eugene Martinez, asked for probation, arguing that his client's only prior conviction was for a misdemeanor prowling offense.

Neither attorney, nor the probation officer, mentioned the murder charge in their recommendations.

Moody, however, cited the murder charge as a factor in aggravation to enhance Trujillo's sentence to the upper term of seven years in prison.

Martinez objected that his client had not been convicted of the murder charge and "is presumed innocent."

The presumption of innocence, Moody responded, "is a legal fiction."

When determining factors in mitigation and aggravation in sentencing, Moody said, case law allowed him to apply a standard of the preponderance of the evidence, rather than proof beyond a reasonable doubt.

"That's a different standard and there is no presumption" of innocence, the judge said.

Outside of court, Martinez said Trujillo would appeal the sentence.

"I've never seen a case where if a client is still pending for trial, a judge can use that charge for the purpose of enhancing the sentence on another charge," he said.

Well-known San Francisco appellate attorney Dennis Riordan said Moody's legal ruling may be correct, despite his "pejorative" comment about the presumption of innocence.

The issue is before the U.S. Supreme Court, which previously ruled in Blakely vs. Washington that facts used to elevate a sentence must be found true by a jury.

The California Supreme Court later ruled that the Blakely ruling did not apply in California because this state's sentencing laws were different from the state of Washington. That ruling is on appeal to the high court.

Moody "may be absolutely wrong or in a much stronger position, depending on the outcome," Riordan said.

But another legal expert said Moody's ruling was a "clearly reversible error."

Jeff Adachi, San Francisco's public defender, said the rules of court prevent a judge from applying facts from an unrelated crime in enhancing the sentence in another.

Beyond the legal ruling, Adachi said, Moody's comments were disturbing.

"The judge's comments regarding the presumption of innocence are not only legally wrong, but ethically wrong," he said. "As a judge, it's his responsibility to uphold the law, including the presumption of innocence. For a judge to display such willful disregard for one of the basic tenets of our justice system is sad and wrong."

Moody declined to comment on his ruling because it involves a pending case

Speaking generally, he said, the presumption of innocence may be a legal fiction because the court asks jurors to presume something that may not be true.

"It is, however, the cornerstone of our system in adjudicating the question of guilt or innocence, and I take it very seriously and to heart and I rigorously adhere to it in cases where the question before the trier of fact is the question of guilt or innocence."

Moody said he emphasizes the presumption to every jury that sits in his courtroom and makes jurors swear to uphold the standard.

Some in the defense bar agreed with him.

"I have tried plenty of cases in front of Judge Moody and I'm very comfortable with his application of the law in that respect," said Salinas attorney Miguel Hernandez. "He takes pains to make sure that the prospective jurors understand that concept and are willing to adhere to it. Additionally... his demeanor when he addresses jurors in this is very sincere and he wants them to really let this sink in."

As for Moody's comments on the presumption of innocence and the integrity of defense attorneys, Hernandez said: "I can't defend him on that. I think people a lot of time say things when they're irritated."

http://www.montereyherald.com/mld/montereyherald/14688011.htm

By VIRGINIA HENNESSEY

Monterey County Superior Court Judge Jose Velasquez says his behavior in court may be "overly blunt," but it doesn't constitute a violation of judicial canons or justify disciplinary action.

Velasquez on Thursday filed his formal response to misconduct charges that were filed against him on April 27 by the Commission on Judicial Performance.

His attorney, James Murphy of San Francisco, said the judge concedes that the conduct outlined in lengthy transcripts in the commission's charges is true.

"What we are denying are the charges that Judge Velasquez's conduct constitutes a violation of the Canons of Judicial Ethics," he said. "We deny the allegation that his conduct justifies some form of discipline."

The state Supreme Court will now appoint a three-member panel of "special masters" to hear evidence and arguments against Velasquez in a public hearing. The panel will issue recommendations to the commission, which could publicly admonish or censure Velasquez, or remove him from the bench.

It will be the second time Velasquez faces such a hearing. In 1996, the commission charged the judge with misconduct for displaying a crucifix in his courtroom, allowing his name to be used in a pro-choice newspaper advertisement, and announcing from the bench that he would issue tough, automatic sentences for drunken driving.

He was also charged with accusing fellow judges of racism. The case went to a formal hearing but was settled before testimony began, with the commission issuing a public censure, the most serious discipline short of removal from the bench.

The commission has filed seven counts against Velasquez. Among them, he is accused of finding defendants in violation of probation without affording them a formal hearing; increasing defendants' jail time for speaking out in court; failing to tell defendants they have the right to plead not guilty; conditioning a defendant's sentence on his answers to specific questions; and having his children in court and in his chambers during discussion of cases.

In his response to the allegation regarding probation violations, Velasquez said he increased sentences after defendants came to court seeking a modification of their original sentences and willingly admitted they had failed to comply with the prior court orders.

Velasquez apologized for his tenor in one case cited by the commission. According to the transcript, Velasquez gave a young man a choice of jail or attending 30 Alcoholics Anonymous meetings for being a minor in possession of alcohol. When the defendant asked if Velasquez could reduce the number of meetings, the judge threatened to take away his license away or give him jail time.

Velasquez said he was trying to explain to someone who was unfamiliar with the court system that his case would be dismissed and his arrest record erased if he completed the meetings.

"If Judge Velasquez was overly blunt, then he apologizes, but the commission must understand the circumstances and the individual with whom he was dealing," the response states.

The case was one of several cited that involved the alternative sentencing program, in which defendants are given a choice of attending Alcoholics Anonymous meetings or conducting work alternatives to get their cases dismissed.

The commission faulted Velasquez for not making it clear that if the defendants didn't complete the programs, they would receive jail time, and for not informing them that they have the right to plead not guilty.

Velasquez responded that he advises defendants of their rights as a group at the beginning of a court session, but he conceded he failed to make clear in the cited cases the ramifications for failing to complete programs.

Velasquez was accused of establishing sentences in exhibition-of-speed cases based on the defendant's answers to questions about how it felt to "peel out." If the judge felt the defendants were being dishonest, he gave them harsher sentences.

The commission alleged Velasquez "apparently based the 'truth' of the answers on your personal experience engaging in similar conduct."

Velasquez's response said the questions were aimed at determining the defendant's demeanor and whether he was remorseful for his actions.

Murphy said special masters would soon be appointed in the case.

The public hearing has been tentatively scheduled for Aug. 21.

"If he mistakenly failed to advise these particular defendants that failure to complete the conditions would result in their return to the criminal justice system, then he was in error," the response reads.

Murphy said there are numerous examples of defendants who went through the alternative sentencing program who were advised that failure to complete the prescribed program would result in jail time.

"Judge Velasquez is not working from a script," he said. "People make linguistic errors all the time."

http://www.montereyherald.com/mld/montereyherald/14688011.htm

Lawyers who spoke on the condition of anonymity confirmed in recent weeks that the commission, the state's disciplinary panel for judges, is investigating allegations against Judge Russell Scott.

The allegations were originally contained in sworn statements filed by Crystal Powser, Scott's former court clerk, whose earlier allegations led to the resignation of Traffic Commissioner Richard Rutledge in September.

Attorneys interviewed by the commission's investigators said they were asked about Powser's allegations that Scott had her make telephone calls to coach prosecutors who were in trial in his courtroom.

Through his court clerk Friday, Scott declined comment, saying that a judge is prohibited from making comment on an investigation.

The attorneys said they were asked about an alleged arrangement in the Monterey County Superior Court, whereby attorneys who "papered" Scott had their cases assigned to Judge Robert Moody, and those who challenged Moody without cause were assigned to Scott.

Under section 170.6 of the state Code of Civil Procedure, attorneys are given one chance on each case to challenge a judge without cause. The process is commonly called papering a judge.

Defense lawyers have long complained that Scott and Moody, both former prosecutors, are pro-prosecution. Lawyers have frequently papered the judges, particularly Scott, to have their cases removed to another courtroom.

At some point, according to Powser's declaration, then-Presiding Judge Terrance Duncan approved a system whereby all of Scott's papered cases went to Moody and vice versa.

Duncan did not return a phone call Friday.

Many defense attorneys said the purported system, which they view as retaliatory, has continued under Presiding Judge Stephen Sillman.

Sillman denied the allegation last week.

"One, nothing can be said about an investigation, and, two, it's not a policy," he said.

Reasons for assignments|

Sillman said he reviews each case that comes to him for reassignment on an individual basis. In many cases, he said, it made sense to assign Scott's and Moody's cases to each other because they have the same pretrial schedules.

Investigations by the Commission on Judicial Performance are confidential and can lead to several levels of discipline, some of which are confidential.

Victoria Henley, the commission's chief counsel, said she couldn't confirm or deny an investigation of Scott or any other judge on Monterey County's bench. Speaking generally, she said there are no state regulations dictating how a case must be reassigned after a judge has been papered.

However, three sources who spoke to The Herald on the condition of anonymity said they were interviewed by commission investigators who questioned whether the practice, coupled with the allegation of coaching the prosecution, indicated a broader pro-prosecution bias on Scott's part.

The state Code of Judicial Ethics requires that a judge be impartial in carrying out his judicial duties.

"The integrity and independence of judges depend... upon their acting without fear or favor," the code reads. "Violations of this code diminish public confidence in the judiciary and thereby do injury to the system of government under law."

The code goes on to say: "A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, engage in speech, gestures or other conduct that would reasonably be perceived as bias or prejudice."

Powser's allegation that Scott had her call prosecutors with tips during trials is the far more serious allegation.

The code states a judge "shall not initiate, permit or consider ex parte communications" -- discussions outside the courtroom without the presence of both attorneys in the case.

In Powser's declaration, which contained allegations against Judge Michael Fields and Velasquez, the former clerk relates a conversation she had with Fields in which she said Scott had her "contact the DAs and tell them what to ask in jury trials, because Judge Scott told me that it would be wrong for him to do it, but not for me to do it for him, and (he) told me not to tell the (prosecutor) who told me to do it."

Powser said Fields "sat back with a disgusted look on his face, crossed his arms and said he totally thought that was wrong and he would never have, and never has had, his clerk do such a thing."

Assistant District Attorney Berkley Brannon said he did not know if his office had been contacted by the commission, because the inquiries would be confidential. He said the Monterey County Public Defenders Office questioned several deputies in his office.

"I have discussed it with a number of attorneys and in my opinion it's false," he said of Powser's allegation.

Former public defender Michael Lawrence said the allegations are "of grave concern to every defense attorney."

"The allegations that on occasion he would communicate indirectly with prosecutors and provide assistance to them is, of course, extremely disturbing and raises implications about the integrity of the criminal justice," he said, "and these questions should be resolved."

Denies existence of system|

Lawrence, who has gone into private practice since retiring in December, said he has no cases before Scott. In the future, he said, he would have to weigh a specific case to determine if he wants to paper Scott, challenge him for cause, or do nothing.

Moody said he regularly is assigned papered cases from many judges on the bench and denied there was a system to reassign Scott's cases to him or vice versa.

"There absolutely never has been a discussion or agreement or plan to use 170.6s to any purpose whatsoever," he said

It is unclear whether the commission is investigating the conduct of Moody, Duncan or Sillman.

Sillman denied rumors that the commission issued private letters of censure to him and Scott.

Several defense attorneys said the alleged practice of reassigning Scott's and Moody's cases to each other was unfair, if not unethical

"I think it's terrible," said Monterey attorney Larry Biegel. "It shouldn't be done like that, like a punishment. It should be done on a revolving basis."

Salinas defense attorney Richard Rosen, who is president of the Monterey County Bar Association, objected to the idea.

"I don't want to comment about Judge Moody or Judge Scott," he said. "However, as a general proposition, (California Code of Civil Procedure) 170.6 was enacted to ensure fairness to all sides in both civil and criminal litigation. If the response to any lawyer filing a 170.6 against one particular case is to always assign the case to another judge to create a loop, then that's wrong.

"It has the appearance of impropriety because it looks like the judges are in collusion with one another to defeat the very purpose of 170.6," he said. "If it's going on, it's a bad practice and it ought to be stopped."

Other attorneys, such as acting Public Defender Glenn Nolte and Salinas lawyer Tom Worthington, said it was their impression the system to reassign cases was based on ease of scheduling.

"I frankly thought it was because of a matter of convenience," said Worthington, noting that Scott's and Moody's courtrooms were previously located next to each other and they used similar schedules. "I really didn't have a problem with it and I especially didn't have a problem when I heard it was Judge Sillman's decision."

Worthington said he has not seen pro-prosecution bias on Scott's part.

"I can only say that I have had dozens of cases in Judge Scott's department, and if I had thought anything like that was going on, I certainly would have made it known and I never saw anything like that happening."

Also unknown is the status of a commission investigation of Fields, an inquiry also sparked by the Powser's filed court declaration. Powser is the catalyst for a cavalcade of scandal that has rocked the Monterey County Superior Court bench and beyond in the past year.

In her sworn statement, Powser alleged that she was invited to Ventura to visit Fields, who was presiding over a commission disciplinary hearing against Santa Barbara Judge Diana Hall. In graphic detail, Powser recounted alleged sexual overtures Fields made to her in his hotel room and said Fields had discussed the case over which he was presiding.

Powser's allegations|

In his hotel room and during dinner, she said, Fields described the charges against Hall: that she secretly accepted a $20,000 campaign donation from her live-in girlfriend, was convicted of drunken driving, and improperly questioned a prosecutor who papered her to remove her from a case.

According to Powser, Fields told her he and the panel's other two judges discussed the case during meals and had already decided she was guilty.

Upon receiving a copy of Powser's declaration, the commission removed Fields from the panel, then dismissed the panel altogether. A new panel was appointed and the case is set for final arguments June 14.

It is unknown if Fields was, or will be, further disciplined by the commission. Its disciplinary actions can range from private admonishments to public censure to removal from the bench.

Powser caused the resignation of Rutledge, her former fiance, who resigned in September after she sent e-mails to dozens of people in the Monterey County Superior Court system detailing her sexual encounters with Rutledge in his Marina chambers and elsewhere in Salinas' courthouse.

The e-mail, prompted by Powser's breakup with Rutledge and the Superior Court's refusal to let her withdraw a resignation she filed in anger, contained far more serious allegations that Rutledge fixed tickets for friends and co-workers.

Prosecutors did not find sufficient evidence to file criminal charges, partly because of the statute of limitations. But District Attorney Dean Flippo expressed serious concerns about Rutledge's judicial behavior, specifically that he did not recuse himself in conflict-of-interest cases. Flippo said Rutledge's actions "undermined the integrity" of the court.

Rutledge resigned hours later.

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Virginia Hennessey can be reached at 753-6751 or vhennessey@montereyherald.com.

http://www.montereyherald.com/mld/montereyherald/14688006.htm