The Secret World of Judicial Appointments

See also posts re electing judges (which is an even worse way to choose judges) in Role Model Lawyers blog.

The Secret World of Judicial Appointments
By: WILL CARLESS
Voice of San Diego
April 18, 2008

Wednesday, Feb. 13, 2008 | On Oct. 17, William Gentry, Jr., a local prosecutor with the District Attorney’s Office, announced he was running for election as city attorney against the incumbent Democrat, Mike Aguirre. Gentry had the support of District Attorney Bonnie Dumanis, who wrote a gushing letter to local lawyers urging them to back him in the race.

“I’m in this to win and 100 percent committed to it,” Gentry told The San Diego Union-Tribune the day he entered the race.

But three months later, despite raising more money than any other candidate, Gentry suddenly dropped out of the race. After a fellow Republican, Superior Court Judge Jan Goldsmith, decided to run against Aguirre, Gentry said he didn’t want to split the vote against Aguirre and urged his supporters to vote for Goldsmith.

A week later, Gentry had a new gig. He was appointed as a Superior Court judge by Republican Gov. Arnold Schwarzenegger. The move raised eyebrows in the local legal and political communities, with many pontificating that Gentry’s appointment was a trade-off for dropping out of the race against Aguirre and clearing the way for Goldsmith.

And a number of local attorneys, who spoke anonymously because they could appear in front of Judge Gentry, questioned whether the former district attorney was the best qualified of several local lawyers sitting on a waiting list for Superior Court judgeships.

But the screening and appointment process undergone by Gentry, and all other prospective judges, is shrouded in secrecy, leaving details of nominations, including the rating given to applicants by an independent commission and the number of potential rivals for each judgeship, outside of public view.

“We’ll never ever know whether this was an inducement to leave,” said Steve Erie, a political science professor at University of California, San Diego. “But the timing of it raises eyebrows. It’s like remarriage after a divorce. The timing is awkward, the timing is unseemly — that it’s occurring so shortly afterwards.”

Gentry said there’s no connection between his leaving the race and his appointment. He said he applied to the Governor’s Office two years ago and had long cleared the vetting process to become a judge when he decided to have a stab at the city attorney’s job. The governor’s judicial appointments secretary, Sharon Majors-Lewis, who used to be a San Diego district attorney herself, said Gentry was chosen purely because of his outstanding qualifications. Before being appointed, Gentry joined the San Diego District Attorney’s Office in 1998, and he is an Iraq War veteran.

“He’s absolutely got the qualifications necessary to be a judge, not to mention his community service involvements and so forth,” Majors-Lewis said. “If he didn’t have the qualifications, he could not have been considered or appointed.”

Becoming an appointed Superior Court judge in San Diego begins with an application to the Governor’s Office.

The Governor’s Office sends each application to a committee in San Diego, the Judicial Selection Advisory Committee. The identity of the members of that group is secret, as is the number of people on the committee and the process by which they assess the applications sent to them. A number of members of the local legal and political communities said District Attorney Bonnie Dumanis is a member of the committee, but the Governor’s Office would not answer any questions about the group.

After its own team has vetted the applicants, the Governor’s Office passes applications it approves of to an independent state Bar commission that’s tasked with assessing the qualifications of potential judges: The Commission on Judicial Nominees Evaluation, known as the JNE Commission.

The JNE Commission, which is made up of active members of the state Bar, former members of the judiciary and members of the public, then begins an exhaustive assessment of each candidate’s qualifications. That includes canvassing present and former colleagues and acquaintances of the applicant and gathering feedback on everything from the aspiring judge’s temperament, to their character, to their record as an attorney.

Those meetings take place behind locked doors. Every document that’s viewed in the meetings is shredded. William Kopeny, the current chairman of the commission, said if a non-commission member enters the meeting to change the air conditioning, the meeting stops until the non-member leaves.

And almost every single element of the JNE Commission’s evaluation of each candidate is strictly confidential. Releasing information from the commission to the media or anyone else is a misdemeanor, Kopeny said.

Past and present commission members said there are very good reasons why the information gathered on each applicant is kept confidential. To accurately assess each candidate’s eligibility, the commission relies on frank and honest feedback from people who know that candidate well and who may have a close relationship to them. The commission would not get that sort of frank information if journalists and members of the public were allowed to pick through the feedback they collate, the commission members said.

“If participating lawyers thought their information was going to be vetted in public, they would be loath to pass it on,” said Diane Karpman, a legal ethicist and former member of the JNE Commission.

Once the commission has considered each candidate, it awards them one of four ratings: Extremely well qualified, well qualified, qualified or not qualified. This rating is sent to the Governor’s Office.

Theoretically, the governor can still appoint someone who has been rated “not qualified” by the JNE Commission. If that happens, the state Bar can choose to make public the fact that they rated the governor’s appointee as such but the governor appointed them anyway.

But the state Bar doesn’t have to say anything.

One former commissioner said the bar could choose to keep quiet about an unqualified appointee in order to protect the governor from embarrassment.

Gentry’s rating by the JNE Commission isn’t public information. Assuming he was considered by the commission as qualified to be a judge, there is no public record whether he was rated as merely qualified, or well qualified or extremely well qualified.

Kopeny said Gentry, or any other applicant’s rating, can be made public by the Governor’s Office if they chose to do so. But the governor’s officials don’t have to say anything if they don’t want to. A spokeswoman for the Governor’s Office said anything related to the JNE Commission is confidential, and that the office could not release Gentry’s rating.

And, in theory, the governor doesn’t have to answer to anyone when it comes to his judicial appointments. Because the appointments are, by nature, political, Kopeny said it’s the governor’s prerogative to appoint whomever he wants, whenever he wants, for whatever reason.

“The governor’s supposed to use political considerations. That’s the reason some people vote for him, so that he’ll appoint people who are of a like mind or that he’ll appoint people who will, in some way, serve the political party that he’s a member of,” Kopeny said.

For his part, Aguirre said there’s no doubt Gentry’s judicial appointment was made to further the ambitions of the Republican Party to knock him out of office.

“If any of my friends who are Republicans want to be appointed judges, this is the time to announce your candidacy for city attorney,” he said.

San Diego City Attorney Jan Goldsmith accused police officer's victim of panty bribery

Oh, dear. Former Judge and current San Diego City Attorney Jan Goldsmith got caught in the act of being--well--a normal lawyer. The Bar Association would never disapprove of a public entity lawyer, not even a City Attorney, acting in the financial interest of the city even though doing so might require inflicting serious harm on the public. In this case, it seems to have required that Jan Goldsmith make a false accusation against the victim of a sexual predator who acted under cover of authority.

It's amazing how morally compartmentalized lawyers (and some judges) are. When they're not out telling the public about how moral they are, they're back at the office preparing a motion to accuse the victim of a sexual predator police officer of bribing that officer!

This is the same issue that Mike Aguirre and Leslie Devaney argued in 2005. Leslie Devaney clearly thinks that people who work for the city attorney are right to defend the "city" by helping to conceal wrongdoing by the city against its own people.


Officer Anthony Arevalos Channel 6 video

I learned about this story from Roundtable on KPBS radio today:

...Arevalos Victim Accused Of Bribery

The woman who was the first to accuse SDPD officer Anthony Arevalos of sexual misconduct was praised by Police Chief William Lansdowne as courageous. That was then.

This week, we learned she was accused of bribery by the San Diego City Attorney’s Office in its pretrial defense of a federal lawsuit against the city.

The city said the woman, who remains anonymous, offered Arevalos her underwear to get out of a DUI. She engaged in negotiation with Arevalos over her arrest, which amounts to bribery. At Arevalos’ trial, she testified that he asked her for the panties to make the arrest go away.

The day after a story on the city's defense strategy appeared in U-T San Diego, City Attorney Jan Goldsmith said the city had dropped that line of defense and would no longer accuse "Jane Doe" of bribery.

Some observers see similarities to the city attorney’s response last fall to Irene McCormack’s lawsuit against the city and Mayor Bob Filner for sexual misconduct. Among other things, the city said that any injury or damage was caused and exacerbated by McCormack herself...

CITY: EX-COP’S ACCUSER TRIED BRIBE
Woman hailed by police chief for reporting sexual misconduct offered her underwear, City Attorney’s Office says
By Greg Moran
SDUT
Jan 15, 2014

Once called courageous by San Diego’s police chief, the woman who first accused former San Diego Police Officer Anthony Arevalos of sexual misconduct is now being accused of bribery by lawyers defending the city in a federal lawsuit.

In court papers filed for a pretrial hearing, the city says the woman offered Arevalos her underwear as a bribe in order to get out of a drunken-driving charge in 2011.

That’s a dramatic turnabout by the city. Chief William Lansdowne called the woman “very courageous” for reporting Arevalos and cooperating with investigators when Arevalos was arrested three days after the March 8, 2011, incident.

The woman, identified only as “Jane Doe” in her civil-rights lawsuit against the city, was stopped by Arevalos in the Gaslamp on suspicion of drunken driving. She testified at his trial that he asked her what she would be willing to do to make the DUI arrest go away, and he suggested she give him her panties.

The two went to a bathroom inside a nearby 7-Eleven where she removed her underwear, she testified, and Arevalos touched her before allowing her to dress.

Arevalos, serving his sentence at Corcoran state prison, did not take the stand at the trial.

The city’s position, outlined in legal papers filed two months ago seeking to have the woman’s lawsuit dismissed, paints a different picture.

“Plaintiff bribed Officer Arevalos with her panties to get out of the DUI,” the filing says. “Both plaintiff and Arevalos agreed to consummate the bribe in a nearby 7-Eleven in the Gaslamp.”

Browne Greene, a lawyer for Jane Doe, said the city’s position is hard to believe.

“After she comes forward to report she’s been assaulted, they proclaim her a hero,” he said. “And now, in federal court, they call her a briber.”

A spokesman for San Diego City Attorney Jan Goldsmith said in a written statement that the Jane Doe case is different from a dozen other women’s claims that the office has settled related to Arevalos’ conduct.

“Unlike the other cases, this one remaining case has evidence that the plaintiff actually negotiated over avoiding a DUI,” the statement said. “Regardless of outrage from plaintiff’s lawyer seeking a payday, if we have to try a case our trial lawyers present the jury with the truth.”

The woman was not arrested for bribery or drunken driving. Citing the ongoing lawsuit and Arevalos’ appeal of his criminal conviction, a spokeswoman for District Attorney Bonnie Dumanis declined to comment on whether prosecutors ever considered a bribery charge against the woman.

Jane Doe is the last of a dozen women who sued the city or filed legal claims alleging they were subjected to sexual harassment or assault by Arevalos when he was an officer. So far the city has paid out some $2.3 million in claims.

Dan Gilleon, a lawyer who represented several women in those claims, said the city’s statements accusing the woman could backfire with a jury.

“It’s offensive the city would be doing this right now,” he said. “In these sexual assault, sexual harassment cases the last option you want to take is to blame the victim.”

Arevalos’ trial lawyer, Gretchen Von Helms, said Tuesday that the woman testified that she wanted to get out of the DUI charge. The city interprets that as offering a bribe, she said.

The federal lawsuit has become increasingly contentious as it moves closer to a trial, which will probably occur this year. Neither side appears willing to settle.

In the two years since it was filed, lawyers for the woman have built a case arguing that Arevalos was part of a larger culture of misconduct inside the department. The lawsuit is seeking a federal judge to appoint an independent monitor to oversee how the department handles complaints from citizens about officer misconduct.

The city says no such monitor is needed.

Arevalos was convicted of sexual battery, bribery and other charges and sentenced to eight years in prison. He’s seeking a new trial based on evidence discovered after the trial during the Jane Doe civil case that his lawyers say San Diego police should have turned over before the trial, but never did as the law requires.

A hearing on that issue is set for Feb. 7 in front of Superior Court Judge Jeffrey Fraser, who presided over the trial. Jane Doe has been ordered to appear to testify about the notes.