You know the story about the patient relating a terrible nightmare he had had the previous night. “Doctor, it was horrendous. I dreamed you were my mother.” The doctor replied that indeed it was a disturbing dream. “What did you do after you awoke from the dream?” she asked. “I woke up in a cold sweat, took a shower and had breakfast.” “What did you have for breakfast?” asked the psychiatrist. “Coffee and a piece of toast.” “You call that a breakfast?”
A similar incident occurred in my home recently. At breakfast my wife told me about her frightful nightmare the night before. “I dreamed that I, not you, am the judge. There I was in my robes, and . . . ” What did you feel? I asked. “Don’t interrupt when I’m speaking.” “But I’m your husband, I always interrupt.” She then did something quite unexpected. She waved a finger in front of me. “One more outburst and you’ll be in contempt.” I let her go on. Finally she let me speak. “I read somewhere that . . . ” She interrupted . . . “that’s hearsay, inadmissible.” “But we are just having a discussion,” I said. “Overruled.” I said something else. The cat objected and she sustained the objection. I kept speaking and she repeated in a louder voice, “Sustained!” Was that her? I looked around to see if the cat had said anything.
Those readers who have not donned judicial robes might question whether my wife’s dream was in fact a nightmare. They might believe that the authority she exercised reflects the awesome power and respect real life judges command.
Let me set you straight through an example. I had this idea for a new law related reality show. Yes, I know that the recent reality show, “The Firm” went down in flames. Well what do you expect? The emphasis was on trial lawyers and their pathetic efforts to rout their opponents. Yawn. The show would have been a rousing success if the focus had been on the judges instead of the lawyers. My idea for a reality show is based on an old radio show, popular about 60 years ago, called “Queen for a Day” emceed by Jack Bailey.
It’s hard to believe, but in those days the contestants were only women. The winning contestant was the one with the most sympathetic hard luck story. “My job interview at the telephone company was a disaster. They were about to test my voice but as I sat down to speak into the microphone my nylons tore and I shrieked ‘operator.’! I didn’t get the job and now the bank is threatening to foreclose on my bungalow.”
The winner was crowned queen for the entire day. Jack Bailey would recite the itinerary for the magical day of the queen’s reign. “Your majesty will be chauffered to lunch at the Brown Derby on
So here’s my idea. A reality show that gives deserving lawyers who have lost a disproportionate share of cases due to bad rulings the opportunity to become “Judge for a Day.” The emcee will announce to the winner what is in store for her or him, and then we will actually witness the judge’s activities throughout the day. “Before sunup your Honor will be whisked off to the court house in early morning heavy traffic. Once at the courthouse you will wait for the private judge’s elevator, and wait and wait until you realize it doesn’t work and then climb ten flights of stairs to get to your chambers, where it is freezing cold and piles of motions sit on you desk waiting for your review.
But first you have a morning settlement conference. You patiently craft a settlement proposal that does justice for all parties. After you have gently cajoled and tried amiably to persuade the parties to settle, the recalcitrant lawyers and their obstinate clients mock your efforts, refuse to settle, or even talk to one another, threaten to file additional causes of action against each other and storm out of your chambers.
You then take the bench for the morning law and motion calendar and hear dozens of motions, few of which are written in English. These include a multitude of summary judgment motions one of which contains six thousand issues of disputed fact. The lawyers vilify one another in their briefs and oral argument.
Then you will continue with the trial you have been trying to conduct. You promised the jury it will end this day, but a key witness under subpoena has not appeared. The witness, a single working mother with three minor children is vital to the case, and the attorneys are pressing you to issue a bench warrant. A member of the press sitting in the courtroom is busily taking notes.
You take a recess and peruse in chambers the charges brought against you before the Judicial Performance Commission by the pro per against whom you sustained the demurrer to his complaint which alleged on information and belief that the mayor is trying to kill him.
It’s now time for lunch. You are due to install the officers of the Left Handed Lawyers Bar Association. You will arrive at the local hotel where the gala event is taking place just as they serve you the delectable entrée of chicken fried steak. That evening you attend a cocktail party sponsored by Citizens Against Judicial Abuse where guests cross-examine you about the Rodney King case and Judge Alito.” I could go on, but my show idea was rejected in favor of another show called “Test Pilot for a Day.”
This proves that being a judge is not all it’s cracked up to be. Our power is limited. Some people have real power. Take for example the baby naming official in the
American judges do not have the power of the baby naming official. Sure, people stand up for us when we enter the courtroom but that is only because a bailiff orders them to. Standing up for us literally is far different than doing so metaphorically. Getting up when you are sitting down is annoying, but today people do it for everyone. Every performer, however mediocre, gets a standing ovation. Rock performers, opera singers, mimes, organ grinders, jugglers, weather forecasters--they all get standing ovations.
I think it impolite to leave as the curtain comes down at the opera for example. We can at least stay and express our appreciation for the performers, but is everyone deserving of a standing ovation? The person in front stands up and you have to stand up to see the singers bow. And soon the entire audience is on its feet. Elderly people have to be awakened and helped up by their caretakers. It’s as bad as attending a football game. A good play and everyone is on their feet screaming. I see most of the game by way of instant replays on the giant screens above the end-zones.
But, on the other hand, it sure makes the performers feel good. I therefore thought about instituting standing ovations during oral argument at the Court of Appeal. Not for the lawyer’s arguments mind you. Who is going to applaud? Clients seldom attend sessions of the Court of Appeal, and certainly not other lawyers in the courtroom who are far more concerned about their own cases. No, I wanted a standing ovation for the justices. In my division we are known for asking snappy, quirky questions. It might be a bit time consuming for the ovation to occur after each argument. But waiting until the end of the calendar leaves an empty courtroom save for the lawyers arguing the last case.
I guess this is just another forgettable idea. I then thought about encouraging sustained applauds when we take the bench at the opening of the court session. The “APPLAUSE” sign used on Jack Bailey’s Queen for a Day show might be available on E-Bay. I decided to sleep on this last idea before acting on it but had a terrible nightmare which convinced me to reject that idea as well.
I dreamed I was a lawyer appearing on a law and motion matter. The judge I appeared in front of was me, rudely asking pointed questions. I awoke in a cold sweat. What could be more horrific than me appearing before me? I shuddered and realized neither of us deserved a standing ovation. I suppose this all proves that power, absolute or limited, has little to do with respect. Respect, like anything else worthwhile, must be earned. Doing our work as best we can without thinking about respect is probably the best way to get it. If you think otherwise, you’re just dreaming.
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Funny story. I agree with you though that respect must be earned, even by the judges. Those judges that forget that universal maxim end up getting challenges filed, ruthlessly appealed, and end up standing alone at the bar's cocktail parties.
I don't know why attorneys do not bring their clients to the appellate arguments. I always bring mine; and, I introduce them to the panel. I have not had a justice complain about the practice.
Keep up the good work!
Justice Gilbert
Although it is too late to be of any use to my son’s, I thought it important you know how truly correct your minority decision was. I thank you for your courage and only wish that this information was available for review at the time.
Description of Events
1- Judge O’Neill, aware of his obligation under Canon 3E of the Judicial Code of Ethics, states the following on the cover of his written disclosure: “On the date on which this document was filed, disclosure pursuant to Cannon 3E of Judicial Ethics was made by the court by furnishing the parties with a copy of the information contained on the reverse of this document.” The Judge then signed and filed this disclosure on 10-18-99, signifying that he had in fact given this disclosure to the parties in this case.
2- On February 9, 2000, at a post-trial restitution hearing, the following exchange took place between Defense Attorney David Moore and Judge
MR. MOORE: The only matter that I wanted to put on the record was the Court’s written disclosure which the Court made on October 18, 1999. We (Defense Counsel, (David Moore, Roger Diamond, and Bill Tomasi), did not receive the actual written disclosure. And so, what is reflected in the record as to what the Court’s disclosure was is what we knew. And that was that his Honor’s wife worked for the District Attorney’s Office, the Child Support Division. That’s all.”
THE COURT: Okay. By the record, you mean the transcript.
MR. MOORE: Yes. The appellate transcripts.
THE COURT: Okay. Well, I have been disclosing my wife’s employment for a number of years now since she started working for the DA in another capacity.
MR. MOORE: Yeah.
THE COURT: And my usual practice, and I may not have fully done it here, Although I know that Mr. Tomasi, for one, has known about the situation for some time because he is here more often, but my usual practice is to mention the fact that I’m putting a piece of paper in the file and that same information is available in the courtroom. And it is in the courtroom in notebook form someplace. The bailiff usually makes sure that is available to the parties. So the record will speak for itself on what I did say at the time, though.
MR. MOORE: Right. It’s just that the paper itself says that we, the Defense Attorneys, actually received the written paper, and we didn’t. And the record wouldn’t indicate that one way or the other that we did not. I mean, it would indicate that we did, rather that we did not. And that’s just all I wanted to make clear.
THE COURT: Okay. Again it’s posted in the courtroom in notebook form because most people don’t want to walk away with a piece of paper. But it is certainly available and was available in this case, although I can’t swear to where the notebook was or what I said at the time. I don’t remember. Anything else?”
Judge O’Neill, aware of his obligation to disclose information that the defendant or his counsel might find relevant on the issue of disqualification, signed a disclosure sheet stating that he was furnishing the written disclosure to the parties to create the appearance that was in compliance with Cannon 3E of Judicial Cannons. When the Judge was confronted by the defense at a post-trial restitution hearing on the fact that they were never given his written disclosure, he states, “But my usual practice is to mention the fact that I’m putting a piece of paper in the file and that same information is available in the courtroom. And it is in the courtroom in notebook form someplace.” He signs the disclosure swearing that he actually did furnish a copy to the parties, and later admits that he just mentioned the fact that he is placing the disclosure in the file “because most people don’t want to walk away with a piece of paper”.
Judge O’Neill shirked his own duty of mandatory disclosure by alluding that it was the defense’s job to find his disclosure notebook located “somewhere in the courtroom” even though he “can’t swear to where the notebook was”. He goes even further by making it the responsibility of his Bailiff to provide the relevant information to the defense. He states, “The bailiff usually makes sure that is available to the parties”.
Defense Attorney David Moore succinctly summed up the actions of Judge O’Neill in his Response Brief to the Appellate Court:
The fact that Judge O’Neill kept the contents of his written disclosure (CT 69A) from the eyes of Shane and Tony’s attorneys, while at the same time executing a written form (CT 69) that expressly indicates that the attorneys received the written disclosure (CT 69A) is nothing short of deception by slight of hand.
In further defense of his own failure to make a complete disclosure as required by Canon 3E, Judge O’Neill relied on his incorrect assumption that Tony’s co-counsel Mr. Tomasi, “knew about the situation for some time because he is here more often”. This is clearly not an adequate disclosure. Cannon 3E is specific in its wording that, “In all trial court proceedings, a judge shall disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no actual basis for disqualification.” A judge should not speculate on the knowledge of another person when making his disclosure, especially when his speculation is wrong.
On December 12, 2000, William Tomasi, in a sworn declaration stated that “the first information I ever received about Judge O’Neill’s wife’s employment was at Tony’s jurisdictional hearing in the fall of 1999 where the Judge told the parties, ‘my wife is employed in the Child Support Division of the DA’s office.’” Mr. Tomasi was unaware of the disclosure sheet that the Judge placed in the file for this case because he was never directed to or had any knowledge of a notebook in the courtroom, nor what was in that notebook.
The Appellate Court
In a two to one unpublished decision, the Appellate Court refused to overturn the decision of the Lower Court. The Majority relied upon the unsworn speculation of Judge O’Neill stating, “even if counsel had not received a copy of the Judge’s written disclosure, Mr. Tomasi had been informed of the Judges wife’s prior disclosure during his previous appearances before the Court” . The Majority went on to say, “A reasonable person aware of the wife’s former position would not have entertained a doubt as to his impartiality”.
In dissent, Justice Gilbert stated, “I do not agree with the Majority’s conclusion that a reasonable person aware of the wife’s former position would not have entertained a doubt as to the trial judge’s impartiality”. Justice Gilbert held that the Judgment should be reversed and the matter sent back for retrial before a different Judge.
Before the Appellate Court, the defense argued that Judge O’Neill deliberately withheld vital information from the defense when he made his limited disclosure. The Appellate Court was unanimous in its opinion that it was an inadvertent act rather than a deliberate act by Judge O’Neill.
However, Justice Gilbert wrote in his dissenting opinion, “In the future, I strongly suggest that the trial Judge revise his disclosure form so that it contains signature lines for counsel and the parties to acknowledge that they have been informed of the wife’s full employment history”.
New Evidence
In support of my contention that Judge O’Neill’s bias and attitude negatively affect his role as a judicial officer, I submit information I discovered subsequent to the submission of the Petition for Review to the Supreme Court. Motions for Disqualification of Judge O’Neill filed by the Ventura County Public Defender’s Office and Judge O’Neill’s responses to those motions in the following cases shed light on his conduct and attitude about his role as a judge:
1- People v. Michael Raymond Johnson (CR-39376)
2- People v. Christian Neil Smith (CR-38115)
3- People v. Daniel Eliseo Ortega (CR-38036)
It is learned from review of the above cases that Judge O’Neill had a previously established practice of having the parties sign an “Acknowledgement of Disclosure”. In fact, he began the practice because of his wife’s employment in the District Attorney’s Office. In his response to the motion to disqualify in the Smith case, after describing what he knew about his wife’s position, he states, “…Based on all the above information, I made a final decision to disclose the relationship in all criminal cases and to document that disclosure by requesting signatures on a form that could be placed in the file. My courtroom staff began distributing that form to counsel on January 29.”
If Judge O’Neill had an established routine practice of having all parties in every criminal case before him sign an Acknowledgement of Disclosure, a reasonable person would wonder when, and more importantly why, he discontinue this practice? He would not have been able to “slip” the disclosure sheet into the files in this case without defense attorney’s knowing the contents of the form if his previously established practice of having the parties sign an Acknowledgement of Disclosure was still in place.
In summary before the Appellate Court, Defense Counsel Roger Diamond summed up Judge O’Neill’s omissions of information concerning his background stating, “With the knowledge of Ms. O’Neill’s employment background, the trial Judge would be the last judge anyone would want to try this case.” The cases had already been consolidated and Roger Diamond still held his preemptory challenge, (170.6) which he absolutely would have exercised to disqualify Judge O’Neill if full and complete disclosure had been made. Judge O’Neill failed to create even an appearance of fairness and he has harmed the entire judiciary by his failure to honor his duty to disclose.
The Ventura County Public Defender’s Office, who brought the Motions in the above identified cases, allege that Ms. O’Neill’s appointment to the position of Victim Services Direct was a “sham”; that it was “a gift from the Ventura County District Attorney to Judge O’Neill as a way to curry favor from the Judge”.
In review of the above cases, and consideration of the instant matter, one must seriously consider whether there is any truth to the allegations raised by the Public Defender. The constant and primary theme throughout the Motions to Disqualify Judge O’Neill was that Ms. O’Neill was unqualified for the position and her appointment was created to maintain an improper association of a sitting judge to the District Attorney’s Office. Judge O’Neill completely avoids commenting about his wife’s qualifications in his responses to the motions and fails to appreciate even the appearance of impropriety.
The recruitment standards for the Victims/Witness Programs Coordinator was as follows: “Considerable experience in counseling or direct social services delivery which has included some supervisory, lead, or administrative responsibility and has lead to the acquisition of the required knowledge, skills and abilities. The required knowledge, skills and abilities also can be obtained by completion of a Bachelor’s degree in a related field or four years of progressively responsible victim advocacy experience.”
Maria Socorro Lopez Hanson, a contender for Ms. O’Neill’s position, filed a complaint with the Ventura County Human Resources following Ms. O’Neill’s appointment, which was based in part on her belief that she had no real chance at the position since the job had been promised to the Judge’s wife, an obviously unqualified applicant. Ms. Hanson complained that “the job announcement/recruitment was geared towards Ms. O’Neill’s qualifications, so she could eventually be selected”.
A Ventura County Human Resources Investigator, in analyzing the complaint and appointment of Ms. O’Neill, curiously fails to even address Ms. O’Neill’s qualifications; determining that, “the Personnel Rules and Regulations also allow the appointing authority to make an exception concerning employment standards in consideration of the lack of qualified employees or other exceptional conditions”. By making such a statement, the Investigator is all but admitting that Ms. O’Neill was not qualified for the position as alleged by Ms. Hanson. The investigator also states that, “the employment qualifications in the job description were broad enough to attract 21 candidates. Six of the 21 applicants did not meet the employment qualifications and a total of fifteen were allowed to compete in the oral examination process.”
If six people were eliminated because they “did not meet the employment qualifications”, why was Ms. O’Neill, an individual with no experience and apparently no college degree, permitted to continue in the process? There was no lack of qualified applicants, as 14 qualified people, other than Ms. O’Neill, sought the position.
To top it all off, after Ms. O’Neill was given the position, it was upwardly revised to an Administrator II position, which increased her salary by $10,000.00 a year. Was this a gift from the District Attorney to the wife of a sitting judge? I believe there are certainly legitimate questions that need to be answered and information in these cases that need to be analyzed.
Would the Appellate Court still believe that the act was inadvertent??? With knowledge that Judge O’Neill knew from defense attorneys motions that they were concerned about his wife’s position in the DA’s office.... How about the facts that he had established a routine practice of having all parties sign an acknowledgement of disclosure, and then discontinued having the parties sign the sheet…..
Too bad it is too late to help my son’s…. maybe you knowing how deceptive Judge O'Neill is can help someone else.
In my ongoing research I uncovered a very interesting Appellate decision. The case of David Ziesmer v The Superior Court Of Ventura County, B162044/CR49433. The Unanimous decision of the Appellate Court filed 3/25/03 overturned Judge Vincent J. O’Neill’s refusal to accept Defendant David Zimmer’s 170.6 motion to disqualify Him from hearing the case.
The fact that Judge O’Neill refused to step down from this High Profile Media coverage case in total defiance to the 170.6 statute is no surprise to me. What I really find interesting is the Ventura County District Attorneys office expended time at TAX PAYER expense to fight to keep Judge O’Neill on the case. What was the difference if the case was moved to another UNBIASED Judge of the Ventura County Superior Court? If all Judges in theory are the same…. Why fight to keep O’Neill on the case?
My favorite judge was the infamous Thomas Ashworth, (whose brother is also a judge).
Judge Ashworth suggested experts in a custody case in the early 90's so the legal fees climbed to over 150k. No kids. The custody issue was a dog.
Very funny column, but California judges are wildly out-of-touch with reality. Which is how our Chief Justice came to award the Benjamin Arana "Access to Justice Award" to Judge Bobb...who denied access to her court to a child wanting to tell the judge how afraid she was of her father. Judge Bobb accepted the award; after refusing the child access; and ignoring her letter. The child? She was murdered by her father.
Details at www.FamilyLawCourts.com/judging.html
More at www.AmendmentE.com
Dry humor is fine, but judges sadly out of touch are costing lives.
www.FamilyLawCourts.com/domestic.html
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