Wednesday, August 16, 2006
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CJP Rebukes Judge Who Went to Game While Jury Deliberated
By KENNETH OFGANG, Staff Writer
A Riverside Superior Court judge who delayed the taking of a verdict in a murder trial because he was attending an Angels playoff game in Anaheim was publicly admonished yesterday by the Commission on Judicial Performance.
Judge Paul Zellerbach violated ethics rules requiring that judges give precedence to their duties above all other matters, dispose of their cases promptly and efficiently, and promote public confidence in the judiciary, the CJP found in a 6-4 decision. The four dissenters voted for a private admonishment.
“There was serious dereliction of judicial duty...by which Judge Zellerbach jeopardized the verdict in a double homicide case and imposed hardship and additional stress on jurors, the families of the victim and the defendant, and on counsel and the defendant” and brought adverse publicity upon the judiciary, the commission found.
Zellerbach waived his right to a formal, public hearing before special masters and appeared in secret before the commission in June to contest the admonishment, the commission explained in its ruling.
The charges arose from the 2004 murder trial of Joseph Francis Close, convicted of second degree murder in the deaths of his girlfriend and their unborn child. Prosecutors said deliberately crashed his car and was drunk.
The case went to the jury on Oct. 4. The judge left court late on the morning of Oct. 5 to attend the Angels game that afternoon against the Boston Red Sox at what was then Edison International Field of Anaheim.
(The Red Sox won the game, 9-3, en route to a sweep of the series.)
The commission explained that Zellerbach arranged to have Judge Robert Spitzer answer any question that the jury might have, but made no arrangements to have another judge take the verdict, which came in about 2:30 p.m.
Unable to reach the judge immediately by cell phone, the clerk contacted Judge Christian Thierbach, who offered to take the verdict. The attorneys were notified to be present in court at 3:30 p.m.
Zellerbach, however, returned the call before that time and said he wanted to take the verdict himself the next day, even though the attorneys said they did not want the verdict delayed. Zellerbach then took the verdict the next day.
The judge should not have gone to a baseball game while a jury in a homicide case was deliberating without making arrangements to have another judge take the verdict, the commission found. The CJP rejected Zellerbach’s explanation that the case was so complex he did not anticipate that a verdict might be reached so quickly.
“Judge Zellerbach has nearly 30 years of experience as a judge and a prosecutor, on the basis of which he must have known that it is not possible to predict how long a jury will deliberate, irrespective of how complicated the issues or how long the trial,” the commission said. “Indeed, during his appearance before the commission, the judge conceded the impossibility of making such predictions.”
If the case was so complex that it would have been inappropriate for another judge to take the verdict, the commission added, Zellerbach should have skipped the game.
The fact that jury verdicts are sometimes delayed for other reasons does not mitigate Zellerbach’s responsibility, the commission added.
“There likely are instances where good cause exists for such delay,” the commission said. “A judge attending a baseball game is not such an instance, however.”
Voting for public admonishment were attorney and CJP Chairperson Marshall B. Grossman, Orange Superior Court Judge Frederick P. Horn, Fourth District Court of Appeal Justice Judith D. McConnell, and public members Patricia Miller, Jose Miramontes, and Barbara Schraeger. Voting for private admonishment were Santa Clara Superior Court Judge Rise Jones Pichon and public members Crystal Lui, Penny Perez, and Lawrence Simi.
Attorney Michael Kahn did not participate in the decision.
Neither Zellerbach nor his attorney, Edith Matthai, returned MetNews phone calls.
Zellerbach, 52, was elected to the Superior Court in March 2000, defeating Superior Court Commissioner Martin Swanson for the seat from which Judge William Sullivan retired before the election. Then-Gov. Gray Davis appointed Zellerbach to the seat two months after the vote.
A graduate of UC Davis and California Western School of Law, he was a Riverside deputy district attorney for 22 years before becoming a judge, rising through the ranks to become of the office’s top homicide prosecutor.
His best known case as a prosecutor was that of William Suff, sentenced to death for the murder of 12 prostitutes in 1995.
Copyright 2006, Metropolitan News Company