Tuesday, April 15, 2014
Page 5
JUDICIAL ELECTIONS: Los Angeles Superior Court Office No. 117
Deputy District Attorney Runs Against Veteran Jurist
BY ROGER M. GRACE, Editor
One incumbent—James Pierce—is being challenged in the June 3 primary. His opponent is Deputy District Attorney Carol Najera who, in 2004, unsuccessfully sought election to an open seat, and drew a Los Angeles County Bar Association rating of “not qualified”—also her rating this year. Pierce was found “well qualified” by a sub-committee and is not appealing.
Pierce—who, so far, has turned down all offers of monetary contributions—declares that he is willing to spend whatever it takes to prevail, but expresses doubt that Najera will muster any appreciable support and says he does not foresee a need arising to mount a significant campaign. Najera discloses that she will spend “no more than $10,000” of her own money, but remarks: “I’m very good with grass roots organizations.”
Judge Said to Be Lacking in ‘Bedside Manner,’ but Otherwise Proficient
Los Angeles Superior Court Judge James B. Pierce is not apt to be chosen as any bar association’s “judge of the year.”
He can apparently be crotchety.
Yet, he’s generally credited with possessing broad legal knowledge and demonstrating neutrality.
Deputy District Attorney Carol Najera, who has challenged Pierce in the June 3 election, says this:
“I believe that there is a very strong line between being forceful and being a tyrannical bully. And in my opinion, Judge Pierce spends too much time on the wrong side of that line.”
Najera acknowledges that she is relying on office gossip and has never appeared in front of Pierce.
The only concrete example she gives of allegedly oppressive conduct on the part of the jurist was his questioning of a prospective juror, a Hispanic woman, who professed to having an insufficient grasp of the English language to be able serve. As she tells it:
“He became so incensed with an older, small, non-English-speaking juror that he basically accused her of lying for not understanding what he was saying and ultimately, after about 10 or 15 minutes of grilling her, allowed her to leave. She told him that she didn’t really understand English and she didn’t understand the proceedings.”
Najera provides no transcript of that incident, or any others.
Persons familiar with Pierce’s performance, contacted by the MetNews, are nearly all in agreement that his demeanor sometimes is not ideal, but he otherwise performs his duties admirably.
Matter of Personality
Retired Los Angeles Superior Court Judge (and former Presiding Judge) Robert Parkin, a denizen of Long Beach, says of Pierce:
“While he may never be accused of having a ‘sunny’ personality, he is a good judge. He is smart, works hard and is very productive on the court. I sense that he is being challenged because of his personality rather than his ability as a judge.”
A sitting judge says Pierce is a “hard-working, smart guy,” continuing:
“He has some rough edges. He doesn’t suffer fools gladly.”
Overall, however, the colleague views Pierce as a “sound, productive judge.”
A knowledgeable observer in Long Beach terms Pierce a “very, very good judge” who knows the law, but adds: “He may not have the best bedside manner.”
Another says he “can be a little short with people,” but hails him as a “really, really good judge.”
One lawyer says that Pierce’s mood “changes from day to day,” but allows that the judge “treats each side equally,” elaborating:
“If he’s incredibly disrespectful to one side because of his mood, he’s equally disrespectful to the other side.”
Yet, the lawyer says, he conducts a fair trial “almost all the time” and is conscientious.
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Deputy District Attorney Kevin Young, a calendar deputy in Pierce’s court back in 1995 and 1996, says he views the judge as “a fair and honest judicial officer.” He continues:
“Judge Pierce had a reputation for being disagreeable when I was first assigned to his court, but I found that the reputation was not fair. Many attorneys felt that Judge Pierce’s desire to move matters along quickly hampered them, but I found that he was attempting to handle his calendar matters as quickly as possible so as to devote as much time as possible to jury trials when they were in session.”
He says Pierce lets the lawyers try their cases.
Detractor Assails Jurist
The most stinging criticism of Pierce comes from a deputy district attorney who has appeared in his courtroom, and labels the judge “a pompous, arrogant, mean-spirited, belittling bully.”
The prosecutor recalls a case, some years back, in which a tape recording of the defendant’s statement to police was to be played for the jury. The defendant’s lawyer wanted to start the tape at a point beyond that at which the prosecutor thought it should begin.
According to the DDA’s recitation:
Pierce heard argument in chambers just before the afternoon session, noticed it was 1:30, ordered that the jury be brought in, and took the bench; he told the prosecution to call its first witness; the prosecutor reminded the judge that he hadn’t ruled on the question before him, and Pierce declared that he agreed with the defense; the prosecutor proceeded to gear up the tape; the judge repeated, with impatience, that the witness should be called to the stand, and the prosecutor explained that he was trying to locate the right place on the tape; whereupon, Pierce chastised: “Well, it isn’t as if you didn’t have the whole lunch break to do it.”
The prosecutor charges that Pierce is a “consummate bully,” yet credits him with being a “capable judge.”
Another prosecutor views Pierce differently. “He was exceptional,” the deputy district attorney says, in urging a deadlocked jury to try to reach a verdict in a murder case, calling his approach “nothing short of masterful.”
The prosecutor acknowledges that Pierce “can be difficult at times,” but suggests that attorneys who are well prepared will not draw his ire.
Defense Lawyers’ Perspective
Marc Gibbons, a criminal defense lawyer who is a candidate for a Los Angeles Superior Court open seat, remarks:
“I do like appearing in front of him because I know that 8:30 in the morning, he’s going to be there. And he’s going to call my case and get me out of there….That I appreciate.”
He says he gained a negative impression, however, during voir dire one day when, as he viewed it, Pierce “absolutely berated a woman” who was from China and spoke little English. As Gibbons recounts it, the judge “started asking her questions, such as: ‘Well, when you became a citizen didn’t you promise to learn English well enough that you could sit as a juror?’ ”
Yet, he says he will vote for Pierce, explaining:
“When it comes down to settling a case, he looks at your client, he lays out everything, he articulates everything so well.”
Gibbons says the judge tends to confirm what he has already articulated to his client. “To hear it again, in such a clear manner,” from the judge, is apt to induce the client to react reasonably to a realistic proposed disposition.
“I think he gives a fair trial,” Gibbons says, and in making rulings, explains them.
Veteran Long Beach criminal defense attorney Leonard Matsuk says that in his experience, Pierce has demonstrated excellence in “every way,” and specifically with respect to “intellect, diligence and demeanor.”
Another attorney who views Pierce from the defense side of the table says:
“I have practiced in front of Judge Pierce for many years. I find him to be fair to counsel and to the litigants before him.”
Anthony Salerno, a past president of the Italian American Lawyers Association, has a different perspective. He has not appeared before Pierce, but says:
“I have always exercised a CCP 170.6 [peremptory challenge] on Judge Pierce due to his reputation, at least among the defense bar. I think you will find it is almost universally poor. In fact this past summer at the end of a prelim in which the client was held to answer, I started to speak as soon as the prelim judge, Judge [Jesse] Rodriguez, assigned the case to Judge Pierce. Before I even could say anything other than, ‘Excuse me, Your Honor,’ Judge Rodriguez turned to his clerk and, ‘Give Mr. Salerno a 170.6 form.’ I found that to be pretty telling.”
Collegiality Questioned
A person conversant with goings-on in Long Beach’s Deukmejian Courthouse says that Pierce is not “popular among other bench officers.”
This person relates that Pierce one day came into Judge Marc Kim’s courtroom “with his robes on, and sort of disrupted proceedings because he was impatient to have a lawyer finish and come into his courtroom.”
Kim was purportedly upset because he felt Pierce was treating him, in the words of the source, “as if he were not remotely his equal.”
Pierce acknowledges, in an e-mail, that the incident occurred, but insists that he has “never done anything to cast aspersion on” Kim, adding:
“He is an outstanding Judge. I have known him for well over 10 years, and we have always enjoyed a warm, positive relationship. I consider him to be a good friend.
“You might be interested in knowing that Judge Kim was one of the first Judges to sign my petition of endorsement for my re-election. Further, he has repeatedly offered to write a check to help finance my campaign. I have refused his offer, as well as all others, because at this point I am financing my own campaign.”
Kim says the allegation that he became upset over the manner in which Pierce treated him was “completely false.”
Says He’s Baffled
Pierce says he’s “baffled” as to why Najera is opposing him, and comments:
“If there are horror stories going on, I’m baffled. I’m speechless.”
He says the Commission on Judicial Performance on two occasions contacted him in connection with complaints about him, and in each instance, Pierce advises, the underlying allegation was determined to be “unfounded.”
The jurist points out:
“I’ve tried over 700 jury trials. Probably 95 percent of those have been appealed. I have probably a handful, or a couple of handfuls of reversals.”
Cases he has handled, he says, have included “four death penalty cases, including probably 50 or 60 murder trials,” seven of the murder trials having been conducted during the past year.
“I’ve been doing heavy felony cases since 1990,” Piece points out, adding:
“I’m very proud of my record.”
With respect to his alleged bullying of prospective jurors, he says:
“Do I encourage, strongly, jurors to sit as jurors? And do I strongly discourage jurors from begging off of jury service? Yes. I’m very strong on that. I want people to serve.”
The judge maintains:
“I don’t bully. I’m professional. I’m polite.”
He says that it is his “goal in every case” to treat “every person that appears in front of me—male, woman, any ethnic group, any gender, any sexual orientation”—the same. “I try to treat them with dignity, I try to treat them with patience,” Pierce declares.
He also says:
“Do I push cases? Am I efficient? I try to be, the best I can.”
Judge’s Background
Pierce, 62, is a native of Nebraska, but grew up in Redondo Beach. He has an undergraduate degree from Loma Linda University in Riverside and a law degree from the McGeorge School of Law at the University of the Pacific in Sacramento.
Admitted to the State Bar in December, 1974, he became a deputy district attorney in Sacramento that year, and continued at that post until 1980, though obtaining teaching credentials in 1977.
Pierce became a private practitioner in Long Beach in 1980, serving, every now and then, as a judge pro tem in the Long Beach and South Bay municipal courts from 1982-84, and then as an as-needed Juvenile Court traffic hearing officer in the Los Angeles Superior Court from 1983-84.
In 1984, he became a fulltime referee, and in 1986 was elected by judges as a court commissioner. Gov. George Deukmejian placed him on the Long Beach Municipal Court in 1988, and elevated him to his present post the following year.
Pierce was married in 1980 and he and his wife, Tanja, had two children. The Pierces are now separated.
On March 15, 2006, Pierce drew this mention in Steve Harvey’s “Only in L.A.” column in the Los Angeles Times:
“I was on jury duty the other day, and one of the questions asked each juror candidate was whether he or she had friends who are attorneys. When one woman hesitated, Superior Court Judge James Pierce assured her that there was nothing wrong with having a lawyer as a friend. ‘They need as many as they can find,’ he said.”
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Deputy District Attorney Seeks to Encourage Election Challenges to Judges
Deputy District Attorney Carol Najera is challenging a Los Angeles Superior Court judge in the June 3 election in order to remind judges that they have six-year terms, not life-time appointments.
Her purpose, as she describes it, is broader than that of calling into question the performance of the particular judge she has targeted, James Pierce. Najera says she wants to inspire election challenges to judges in order to keep the election process vibrant.
She explains:
“I’m running this year. Maybe next [election] year, two or three other people will decide to run.
“And eventually, it will be a situation where people will recognize that when you are appointed in L.A. County, it’s not for life. It’s for six years—and then you have to be accountable to the electorate for what you’ve done.”
Unless judges are held accountable, by having to go through election contests, Najera argues, “we should just say that they are appointed for life, and accept that, and accept that we have a federal system.”
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Judges in Los Angeles County are perceived as being “untouchable,” not subject to voters denying them continuation in office, Najera asserts.
“There are some judges who have been viewed as problematic throughout the county,” she observes. “And part of the reason why I’m running is that there is a perception that you can’t do anything about the fact that these judges are the way they are, that, objectively speaking, we’re not talking about something that you can take them to Judicial Council for.”
She rebuffs the suggestion that she means the Commission on Judicial Performance (the disciplinary authority), saying: “Yes, but I’m just using shortened words.”
(The Judicial Council is the Judicial Branch’s policy-making body.)
The candidate notes:
“My opponent was appointed almost 30 years ago. He has never had to stand for reelection. Every six years, he has been rubber-stamped into office.”
The name of a judge who has not drawn a challenger does not appear on the ballot (unless a write-in candidate qualifies by gaining the requisite number of signatures on a petition, which is a rarity.)
Pierce was appointed to the Long Beach Municipal Court in 1987 and to the Los Angeles Superior Court the following year. Najera says she does not know who appointed him to the Municipal Court.
“I know he was elevated by Governor [George] Deukmejian but I do not know who appointed him before he was elevated from Municipal to Superior Court,” she says, claiming:
“There is a dearth of records from that time.”
He was appointed by Deukmejian to the lower trial bench.
Disparages Pierce
Najera charges that Pierce, over the years, “has been very, very disrespectful to all the participants in the courtroom.”
She maintains that “it’s very hard to get justice” in his courtroom because “people are afraid to fully litigate their issue for fear of being disrespected, being treated to a verbal barrage.” That, she says, “is going to result in justice denied.”
The candidate acknowledges that she has never appeared in Pierce’s courtroom, but says:
“All this is based on what I have been more than told but have had to live through when people have come back from court, what I have had to experience talking to a myriad of both defense and prosecution attorneys, and it is very disturbing.”
If Pierce causes deputy district attorneys such grief, why does her office not have a blanket affidavit policy against him?
She responds:
“You know what. I can’t speak to that. I don’t know why.”
Perceptions Differ
Najera is herself viewed by some as an unpleasant individual. Others, however, see her in a more positive light.
One judge says that Najera “can be difficult to work with.”
The jurist remarks that “when she comes in in the morning, she is not a prepared person.”
Najera, the judge notes, has not tried a case in at least 10 years, and relates that she boasts of not doing so, considering such a task as one that should be relegated to deputies at a lower level.
Deputy District Attorney Bobby Grace, a seasoned member of his office who ran unsuccessfully for district attorney two years ago, says this of Najera:
“She is a very accomplished trial lawyer and spent time doing some very high profile cases when she was assigned to the Special Trials Division during the 1990s. Since that time she has been primarily assigned in our Long Beach Branch office. Carol is a meticulous trial attorney who leaves no stone unturned in her quest for justice. Carol demands excellence from herself and others. She is a hard worker and does her very best at all times.”
A person in a position to judge the candidate’s performance says that Najera has “good control, good demeanor,” is “competent, dedicated, mature,” and “works well with people.”
Another, also having first hand knowledge, has a different view, terming Najera “somewhat lazy,” and remarks: “I question her temperament.”
Marc Gibbons, a Norwalk criminal defense lawyer who is running for a Superior Court open seat, says of Najera:
“I don’t have any problems with her. I do know other people have problems with her.”
He adds:
“I don’t think she’s going to do any defense lawyers any favors on the bench. I think she’s going to be a prosecutor in a black robe.”
A colleague of Najera comments that she’s “very knowledgeable, very capable,” but, acknowledging criticisms of her, says: “She is feisty.”
‘Not Qualified’ Rating
Najera, in 2004, received a rating of “qualified” from a subcommittee of the Los Angeles County Bar Association’s Judicial Elections Evaluations Committee. That would have been her final rating, had she not appealed to the full committee—which downgraded her to “not qualified.”
“In all honesty, I don’t know why I got an ‘unqualified,’ ” Najera says, but notes:
“People have told me, off the record, that it was because I challenged [the initial rating], and I should just accept my ‘qualified.’ ”
Najera was interviewed prior to it being learned yesterday that a subcommittee of JEEC has found her still to be “not qualified.” She had predicted that, saying:
“I suspect that if I go through the process again, they will find me unqualified again, so I’m not going through the process.”
Najera contends:
“The County Bar has a stated policy, open and notoriously, that they will always give a ‘well qualified’ to a sitting judge. The way it was explained to me…,they want judges to feel that they don’t have to bow to political pressures, so they will support them in that regard.”
Former LACBA president Gretchen Nelson, chair of the evaluations panel, advises: “There is no such policy.”
There are Los Angeles Superior Court judges who, aside from those found to be “well qualified,” have been rated “exceptionally well qualified,” “qualified,” and, though it is rare, “not qualified.” Judge Lynn Olson, two years ago, received the rock-bottom rating, as did then-Judge Ronald Sohigian (who recently retired) in 1996. Other Superior Court judges were so labeled in earlier elections, as were judges of municipal courts.
Najera insists that if she were rated fairly, she should be found “extremely well qualified.” She sets forth:
“I have been an attorney since 1985. I have been involved in some of the most complex litigation that could possibly be imagined, with regard to my field. I was exposed to civil when I was in law school. I believe that I have the academic background, the experience and the maturity to be ‘exceptionally well qualified.’
“…I have never formally been accused of anything by the State Bar.”
Lawsuit Against Her
One of those who provided negative information to the LACBA committee was Deputy District Attorney Richard Ceballos, according to what Ceballos told the MetNews in 2010.
Ceballos had been in litigation with Najera in a dispute that reached the United States Supreme Court. He accused her of using governmental powers to punish him for an exercise of his First Amendment right to freedom of expression.
On Oct. 18, 2000, he sued Najera, his immediate supervisor—also then-District Attorney Gil Garcetti, then-Deputy District Attorney Frank Sundstedt, who was head deputy in Pomona, and the County of Los Angeles—in U.S. District Court for the Central District of California. Alleging a federal civil rights violation and a state claim for intentional infliction of emotional distress, Ceballos sought $1 million in damages on the basis of allegedly retaliatory actions, including the denial of a promotion to Grade IV.
He tied the actions to a memo he wrote on March 2, 2000, urging that a narcotics prosecution be dropped in the case of People v. Cuskey. It was his contention that a deputy sheriff had committed perjury in an application for a search warrant and that the veracity of two other deputies was doubtful.
As Najera now recites the facts:
“He believed that officers had lied on a search warrant. Over the course of the litigation, he wrote a memo that said he believed they lied and why. When it came time to discuss this whole situation, we had to turn over, on discovery, any interviews he had with these officers. He wanted to put in those memos his opinion…as to whether or not they were lying.…This is a formal memo going up and down the chain of command and it’s inappropriate to put your opinions in it.
“About a year later, or maybe six months later, he wasn’t promoted and he sued the office, saying he was retaliated against because of his original opinion. And he had a valid opinion. My position was ‘You weren’t retaliated against—it was just a lot of things, like there was a budget crunch and not a lot of people were promoted.’ He thought it was cause and effect….”
In a Jan. 30, 2002 order, then-U.S. District Court Judge Howard Matz (since retired) granted summary judgment to the defendants on the federal claim, holding that Ceballos’s March 2, 2000 memo did not constitute protected speech, and dismissed the state claim rather than retaining jurisdiction over it. In that order, he recited the allegations that Najera….
•“[D]id not object in any manner to the request of a Sheriff’s Department Lieutenant that Plaintiff be removed from the Cuskey case”;
•“[I]nformed the plaintiff that one of his murder cases would be re-assigned to a lower level Deputy District Attorney”;
•“[V]erbally reprimanded and berated Plaintiff and told him that his actions and statements would get Plaintiff ‘in trouble with the District Attorney’s office’ ” after Ceballos reiterated his belief that deputies had lied; and
•Ceased assigning murder cases to Ceballos.
The denial of a promotion came on Aug. 25, 2000, according to the complaint, and on Sept. 2, he was transferred from Pomona to El Monte, where he was assigned as a felony filing-deputy.
The Ninth U.S. Circuit Court of Appeals reversed, finding that the memo was protected by the First Amendment.
Allegedly Discouraged Testimony
The opinion, by Judge Stephen Reinhardt, reflects Ceballos’s allegations that “Najera ‘threatened’ him when he told her that he would testify truthfully” at a hearing on a defense motion to traverse the warrant and was “rude and hostile” to him at the hearing. (Despite his testimony, under subpoena, for the defense, the motion was denied.)
In the 2010 interview, Ceballos said of Najera:
“She never came out and said, ‘Rich, I want you to lie.’ She’s stupid, but not that stupid.’ ”
As phrased in his brief in the U.S. Supreme Court: “Najera called Ceballos into her office and made a veiled threat of reprisal if he insisted on testifying candidly at the hearing.”
On May 30, 2006, the high court, in a 5-4 decision, agreed with Matz that the memo was not cloaked with First Amendment protections, having been written by Ceballos as part of his duties.
Najera expresses disappointment that the question of whether or not Ceballos was subjected to retaliation was never adjudicated.
Earlier Case
When the Supreme Court rendered its decision in the Ceballos case, it was the second time it had acted in litigation in which Najera was a defendant. In 1999, it dealt with a lawsuit that was an outgrowth of the widely followed prosecution of the Mendendez brothers, youths who had slain their abusive parents at their Beverly Hills mansion, proceeding to live lavishly on the proceeds of the estate.
Najera’s co-defendant in the lawsuit was Deputy District Attorney David Conn (now deceased).
Conn, aided by Najera, gained a conviction of the brothers at their second trial, the first having ended in hung juries (with each defendant having a separate jury). However, the lawsuit against the duo, brought by attorney Paul L. Gabbert, related not to that second trial, but the first, handled by a different prosecution team.
The involvement of Conn and Najera that gave rise to Gabbert’s action occurred while the jury at the first trial was deliberating. The prosecution had learned that the older brother, Lyle Menendez, had written a letter to a witness, Traci Baker, who had testified for the defense, asking her to lie on the stand. Served with a warrant to search her apartment, she told an investigator that she that had handed-over to Gabbert, her attorney, all correspondence from Lyle Menendez.
Baker, accompanied by Gabbert, appeared three days later to testify about the matter before the Grand Jury. A warrant was hurriedly obtained to search Gabbert and his effects for any communications between Lyle Menendez and Baker. While Baker was in the Grand Jury waiting room, Gabbert was detained for a search in another room.
Baker was questioned while Gabbert was being subjected to the search. She sought, but was unable, to gain access to him during breaks.
Gabbert sued Conn and Najera, contending his right to practice law was impermissibly impeded by the government. U.S. District Court Judge Ronald S.W. Lew granted summary judgment to the defendants; the Ninth Circuit reversed.
As recited in the Ninth Circuit opinion:
“Within minutes of the search warrant…being executed on Gabbert, Najera…, acting at Conn’s direction, called Baker before the grand jury and began to question her.”
Gabbert’s brief in the Ninth Circuit argues that Conn and Najera “not only unreasonably interfered with and caused others to interfere with Mr. Gabbert’s right and duty to confer with and advise Ms. Baker, they intentionally timed the execution of both searches to deny him access to his client at the precise moment he was engaged to represent her and she most needed his advice.”
The brief continues:
“Indeed, the Defendants understood that Mr. Gabbert was present with Ms. Baker on the morning of March 21 for the purpose of being available to her should she need his counsel, before, during and after her testimony before the grand jury….As Najera conceded, Mr. Gabbert was at the courthouse for a single purpose—to represent Ms. Baker while she testified before the grand jury.”
The brief adds:
“More significantly, Conn and Najera were also well aware that the search of Mr. Gabbert would plainly interfere with his representation of Ms. Baker insofar as they: (1) caused the issuance of the warrant; (2) caused Ms. Baker to be called into the grand jury room; and 3) controlled the timing of both events.”
The Supreme Court reversed the Ninth Circuit’s decision, holding “that the Fourteenth Amendment right to practice one’s calling is not violated by the execution of a search warrant, whether calculated to annoy or even to prevent consultation with a grand jury witness.”
Again, the validity of the allegations of misconduct was not adjudicated, by virtue of a constitutional ruling foreclosing liability.
Najera’s Background
Najera has been an attorney since Dec. 10, 1985. She has been with the District Attorney’s Office for her entire career.
Her undergraduate and law degrees were earned at USC.
Najera says she applied for appointment to a judgeship, without success, some years back, “I think under [Gov.] Gray Davis.”
She and her husband, a retired deputy sheriff, have been married for 25 years. They have four children, three from his prior marriage.
Copyright 2014, Metropolitan News Company