Judge's Voir Dire Instructions Result in Misconduct Charges

Mike McKee
The Recorder

The Commission on Judicial Performance filed misconduct charges on Dec. 29 against a Placer County, Calif., Superior Court judge who told potential jurors to conceal or lie about racial bias they might harbor.

Judge Joseph O'Flaherty, 57, was charged with willful misconduct, conduct prejudicial to the administration of justice, and improper action in cases involving a black woman accused of robbery and an Iranian man charged with fraud. Both defendants were convicted following the judge's offbeat voir dire instructions.

"Your conduct," the CJP's charging document said, "reflected abuse of authority, disregard for fundamental rights, intentional disregard of the law and was in violation of the Code of Judicial Ethics."

O'Flaherty, who has been on the bench in Roseville since 1989, could not be reached for comment. But his lawyer, Murphy, Pearson, Bradley & Feeney partner James Murphy, said the judge initiated the proceedings himself by refusing to acquiesce to a public admonishment proposed by the CJP as discipline, and demanding a full public hearing.

"He feels, under the circumstances, that the only way he will be able to tell his story fully and completely is through a hearing," Murphy said. "His intentions were good, he believed at the time that he was acting lawfully, and that this [discipline] should not be in the form of a public admonishment."

The CJP was encouraged to bring charges against O'Flaherty by Sacramento's 3rd District Court of Appeal, which twice chastised the judge for advising potential jurors to keep their prejudices to themselves but find other ways to escape jury duty.

"We assumed this 'astonishing' error was a 'well-intentioned but misguided' incident," Justice Fred Morrison wrote in February in People v. Abbaszadeh, 106 Cal.App.4th 642. "It now appears Judge O'Flaherty has a practice of instructing jurors to hide invidious bias."

Murphy said that's not true, that O'Flaherty, a former deputy district attorney in Placer and Imperial counties, was simply trying "to ensure a fair trial for two minority defendants in a highly Caucasian county."

Furthermore, he said, Mohammad Ali Abbaszadeh was tried in O'Flaherty's courtroom before the 3rd District released People v. Mello, 97 Cal.App.4th 511 -- its first reversal based on the judge's voir dire instructions.

"At the time he heard People v. Abbaszadeh," Murphy said, "he did not have any guidance from the district court of appeal that what he was doing was inappropriate." The judge, he added, hasn't told jurors to lie about racial bigotry since.

O'Flaherty's response to the CJP's charging document is due Wednesday.

"We think when an objective person hears why Judge O'Flaherty did what he did," Murphy said, "that person will say that was an effort on the judge's part to ensure fairness to a criminal defendant."

The case is Inquiry Concerning Judge Joseph W. O'Flaherty, No. 171.

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