Court rebukes judge in O.C.

When an appeals court sent a drug case back to Orange County Superior Court Judge Robert R. Fitzgerald, it gave him a chance to get the law right. But when Fitzgerald could not get it right a second time, the court overturned the conviction and issued a stinging rebuke of the judge.

“Appellate courts go out of their way not to criticize trial courts,” said Jan Stiglitz, appellate law professor at California Western School of Law in San Diego. “This is one of those rare cases where the trial court didn’t follow the appellate court’s instructions.”

The 18-page ruling by the California 4th District Court of Appeal took the unusual step of naming Fitzgerald and two other Orange County judges involved in the case of Anthony Andrew Galland, convicted six times since 1983 of drug, petty-theft and burglary offenses.

At issue is whether Fitzgerald properly reviewed a secret affidavit by Buena Park police providing evidence to obtain a search warrant. The appeals court also criticized the Orange County Superior Court’s controversial practice of allowing police to keep the sealed affidavits instead of turning them over to the court.

In Galland’s case, one judge issued the search warrant, and another ordered the affidavit sealed. But Fitzgerald, a third jurist in the case, was singled out for most of the criticism because he was the trial judge. The panel said he violated Galland’s due process.

“This case is an unprecedented example of what happens when the trial court ignores its duty to maintain inviolate the record of court proceedings in search warrant cases and a call for the court to assume this duty in the interests of justice,” the ruling says.

Fitzgerald, 71, did not reply to a request for comment made through a court spokeswoman.

Orange County Superior Court Presiding Judge Nancy Wieben Stock said the ruling had caused her to reconsider the practice of allowing police to keep the sealed affidavits rather than turning them over to the court.

Fitzgerald is no stranger to controversy, and prosecutors and defense attorneys have criticized many of his actions.

In 1991, Fitzgerald recited a poem he wrote when pronouncing a life sentence for a wife killer who had written a poem about wanting to kill 54 people while he was in jail.

In 2003, he lowered the bail of a three-strikes felon awaiting sentencing for a bank robbery. The man had been shot by police during the robbery and asked Fitzgerald to lower his bail so he could get treatment for his wounds. While awaiting sentencing, he shot a Santa Ana officer.

Two years later, after a carjacking defendant turned down the prosecution’s offer of two years in prison in exchange for a guilty plea, Fitzgerald threatened him with a life sentence if convicted. The judge knew that DNA testing had cleared the man before trial. Fearing the possible life term, the defendant pleaded guilty. Eleven months later, he was cleared when another man confessed to the crime.

The Galland case revolves around the Orange County Superior Court procedure that allows police in some cases to keep secret the affidavits that outline the probable cause needed to obtain a search warrant. Not only do police not have to file a copy with the court, but they do not have to share it with the defense.

Galland, 44, pleaded guilty to drug charges in 2002 and received a five-year sentence. He appealed twice, citing Fitzgerald’s denial of a motion to suppress the evidence gathered in the search and asking that the judge be ordered to review the secret affidavit.

After the first appeal in 2003, the appeals court ordered Fitzgerald to review the affidavit to determine if it contained enough probable cause for the search that led to Galland’s arrest. Unsatisfied with the judge’s review, Galland’s attorney filed a second appeal.

“The prosecutor, judge and officer go in chambers, theoretically so the judge can review it,” said Deputy Public Defender Don Landis. “But I’m not allowed to go in, and I don’t know if a review was ever done.”

Last week, the appellate panel said it could not determine if Fitzgerald followed its original order because it had “no confidence in the authenticity” of a crucial document submitted to prove that he had complied.

The appellate ruling also quoted Fitzgerald’s typically blunt response in court to the defense motion to suppress evidence: “Discrepancy in the testimony is resolved in favor of law enforcement as opposed to a convicted criminal defendant.”

The issue was further complicated because Buena Park police had destroyed the original affidavit.

When the court considered the second appeal, it received a purported copy of the affidavit from Fitzgerald.

Then to the court’s surprise, Fitzgerald also forwarded a never-before-seen sealed envelope of unknown origin. The panel questioned the authenticity of both documents.

“It’s typical of what happened in this case. You always had a feeling that things were not aboveboard,” said Jackie Menaster, Galland’s appellate attorney.

Lynne G. McGinnis, the assistant state attorney general who represented Fitzgerald and the Orange County Superior Court during the appellate hearing, said the judge was not required to retain the sealed affidavit kept by Buena Park police. The state will ask for a rehearing because the dismissal of Galland’s conviction is “too extreme a remedy,” she said.

“You see this kind of relief when there’s police misconduct, which was not the case here.”

Though Galland had his 2002 conviction thrown out, he is serving a 32-month sentence for a 2006 conviction for burglary and using another person’s identity while on parole.

hgreza@latimes.com