Where There’s Smoke . . . : Cigar or Marijuana? Bailiff’s Report Sparks Judge-Lawyer Tiff

Brent Ayscough likes his cigars--three or four a day, usually after meals. So it was only natural one day after lunch this week that the Torrance attorney lit up a Repeter Churchill from Honduras and took a few deep drags before heading into a Westminster courtroom for a trial.

Those few drags led to a minor brouhaha when, according to Ayscough, he gave a friendly greeting to the court bailiff Wednesday afternoon and then was quickly summoned with his opposing counsel in an ongoing civil fraud trial to the chambers of Orange County Superior Court Judge Luis A. Cardenas.

The problem: it seemed that the bailiff believed that he had detected marijuana on the attorney’s breath and promptly reported his suspicions to the judge.

Cardenas “said that this was the third time I’d come into his court with marijuana on my breath,” Ayscough said in an interview. According to the lawyer, the judge then repeated the accusation later in open court and even brought an undercover narcotics agent into court to assess the situation.

“It was just outrageous,” said Ayscough, who lives in Palos Verdes. “He was questioning my ability to adequately represent my client. He couldn’t even tell tobacco from marijuana.” The attorney said he has never used drugs.

After the confrontations in chambers and in open court, Ayscough said he “flew off the handle” and demanded a full investigation of the drug allegation to clear his name, even inviting Cardenas to check his car for cigar butts and perform a urine test for drugs.

The judge declined. But even before the smoke had cleared Thursday, Cardenas was hit with another dilemma--whether to allow the media to stay in his courtroom for coverage of the Ayscough affair and of Ayscough’s motion for a mistrial as a result of it.

The judge balked. Appearing riled as he emerged from his chambers after talking Thursday morning with lawyers in the case, he ordered two reporters and two photographers out of the courtroom, declaring it a “private court.”

Questioned by a reporter about his authority for such an extraordinary move, the judge responded: “You can either leave or I’ll have you dragged out.”

Three members of the county marshal’s office, including the bailiff who had apparently reported the suspected marijuana use, ushered the members of the media out of the room. The hearing on the mistrial motion was finished by the time media lawyers had arrived to contest the move as illegal.

Court observers said they could think of few precedents for clearing the courtroom under such circumstances. But Patrick Hearn, assistant executive officer for the Superior Court, maintained that “the individual judge does in fact have a lot of discretion” over such decisions.

Neither the judge nor the cigar-smoking attorney was talking about the affair later. That was because Cardenas, a 1976 appointee to the bench by then-Gov. Edmund G. Brown Jr., had slapped a gag order on all involved, an order he later refused to explain to reporters.

The judge confirmed that he had denied Ayscough’s motion for a mistrial because of the allegation, but he would not comment on any other aspect of the episode.

But during the closed hearing on the mistrial motion, Cardenas could be heard through the court doors saying that he had not accused the attorney outright of smoking marijuana and suggesting that Ayscough had blown the issue out of proportion.

Cardenas told the lawyer in a caustic tone: “I didn’t just accept (the marijuana allegation) off the cuff. . . . I thought I should inquire, and I did it. That would have been the end of it, but you’ve made this into a Mt. Vesuvius.

“I accepted your representation (that Ayscough had not smoked marijuana). That’s the end of it, but you want to keep going,” the judge said.

For his part, Ayscough said later that he was unsure whether he would press the matter. He simply offered a reporter a cigar as he left the courthouse.