Judge Lester Is ‘The Talk’ of Courthouse

In the corridors of San Diego County’s courthouses, judges didn’t know Wednesday what to make of Superior Court Judge J. Morgan Lester’s unflinching criticism of police conduct in the Sagon Penn case.

Some were shocked that one of their normally circumspect tribe chose to speak out so dramatically and forcefully about a case heard in his court. Some said Lester’s outspokenness--which provoked San Diego Police Chief Bill Kolender on Wednesday to register a complaint with the state Commission on Judicial Performance--was bad for the community. Others said his candor was the stuff of courage.

Whatever their views, Lester was Topic A for his colleagues Wednesday. Because the judge who criticized San Diego police officers for abiding by a “code of silence” in the Penn case had broken an equally strong code of silence that pervades the judicial ranks.

It’s Inappropriate

“I don’t think it’s unethical,” said one judge, who was critical of Lester’s comments but like others interviewed Wednesday doubted they were grounds for judicial discipline. “It’s inappropriate. I don’t think it’s a judge’s place to do that, especially in this type of case where wounds need to be healed, instead of opened.”

Lester--a judge since 1978, first on the Vista Municipal Court and, since 1983, on the San Diego County Superior Court--can expect to get the cold shoulder from his judicial brethren, said another judge who insisted on remaining anonymous.

“You have to live with your peers,” the judge said. “And I don’t think there’s going to be too many hanging around him these days.”

To the contrary, Lester said Wednesday that he has received warm support--whether in the form of phone calls or hugs in the hallway--from many of his fellow judges.

“I’ve picked up a uniform wave of quiet approval,” he said. “And ‘courage’ is the keynote word that’s been mentioned by other judges.”

The supporters include Presiding Judge Victor Bianchini of the El Cajon Municipal Court. Bianchini said Wednesday that criticism should be aimed at Kolender for lashing out at Lester, rather than at the judge.

“If there is any outrage, it is Chief Kolender’s personal attack on Judge Lester, who is such a superb judge,” Bianchini said. “I’d like to know who this chief is. He’s not the sheriff of Nottingham. He’s the chief of police of a major police department in a major city--a police department that has acknowledged problems--and he should be thanking Judge Lester for his comments, instead of displaying such defensive, emotional reactions. Perhaps his defensiveness is part of the problem.”

On Tuesday, Kolender termed Lester’s critique of police conduct “inappropriate,” “irresponsible,” “outrageous” and “intemperate,” and said his comments “disregard the best interest of the community.” On Wednesday, the chief said he would complain to the state commission that monitors judges.

In Public Interest

While acknowledging that many judges considered Lester’s outspokenness impolitic, Bianchini insisted that his colleague’s stand was in the public interest.

“I think it’s about time that the public understand that improvement in our institutions can only come about by a free, full, public discourse,” he said. “If the Police Department and its members are so sensitive they cannot tolerate public criticism that is constructive--that can make a better Police Department--then they ought to be more introspective and review their own motives.”

Another judge, however, said Lester had undercut his chances of influencing police attitudes by going public with his criticisms in a case that had already cut a sharp divide between the Police Department and the city’s black community.

“Everybody’s getting their backbones bared because it’s coming out in public,” the judge said. “Now, any investigation would be jeopardized, because they’re all going to be playing to the newspapers.”

The judge said Lester could have accomplished more by informing Kolender of his concerns in private. “If he feels the way he feels,” the judge said, “he could have done a lot better keeping quiet about it.”

But Lester--whose criticisms now have led to a decision by state Atty. Gen. John Van de Kamp to investigate police actions in the Penn case--rejected that notion.

“There would be no investigation at all if this wasn’t public,” he said. “It will be all the more thorough because there’s going to be a public watchdog eye on the competence and thoroughness of this investigation.”

Judicial Review

If Kolender follows through on his stated intention of lodging a complaint against Lester with the Commission on Judicial Performance, the nine-member panel first will consider if an issue within its purview--judicial misconduct or wrongdoing--has been raised.

If so, and if the alleged misconduct is serious enough, the commission will name a special master to conduct a full hearing on the complaint. The commission would then review the master’s findings. It can privately censure a judge, or recommend to the state Supreme Court that a judge be publicly censured or removed from office.

The commission staff does not offer opinions on whether an incident such as Lester’s comments would constitute a breach of judicial ethics, according to Cynthia Dorfman, an investigating attorney in the panel’s San Francisco office.

But Dorfman noted that the state Code of Judicial Conduct appears to place no limits on what a judge can say about a case once it has concluded.

The relevant canon says: “A judge should abstain from public comment about a pending or impending proceeding in any court.”

It adds: “This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.”