Former Judge Denies Trading Favors for Gifts

A former Superior Court judge testified Monday that he never did any favors for an attorney who bestowed gifts on him and his family and that he was unaware some of the gifts were being given.

James Malkus, one of three defendants in a judicial corruption trial, testified that he was so distracted by his wife’s prolonged and losing battle with cancer that he lost track of many of the financial details of his family over several key years.

Malkus, 59, who resigned in 1993 while under investigation by the state Commission on Judicial Performance, testified that he did not know that attorney Patrick Frega paid his car repair bill, underwrote his son’s salary and helped his son buy a car--all while Malkus was hearing multimillion-dollar cases involving Frega.

Malkus, in calm tones, said that a telephone call from Frega to his house while one of the trials was underway involved Frega inquiring about the health of Malkus’ wife, Marian. No discussion of the trial occurred, Malkus said.

Marian Malkus underwent 18 surgeries and repeated hospitalizations in the years before her death in mid-1991, the years during which James Malkus conspired with Frega and then-Judge G. Dennis Adams to corrupt the judicial system, prosecutors allege.

Malkus, Adams and ex-Judge Michael Greer all handled cases in which Frega was a plaintiffs’ attorney while simultaneously receiving gifts from him. The judges did not list all the gifts on their disclosure forms, which led the California Supreme Court to oust Adams and led Malkus and Greer to resign.

As jurors leaned forward in their seats, Malkus described a trip to New England in the final months of his wife’s life. “We went to all of her favorite places she wanted to see,” Malkus said.

Last week Malkus’ former bailiff testified that Frega enjoyed unfettered access to Malkus unlike any other attorney and that on several occasions the bailiff was asked by Malkus to bring Frega to his chambers in a circuitous route out of view of opposing counsel.

Malkus said the only time he made such a request of the bailiff was when he wanted to ask Frega whether he was splitting up with his wife. “As I look on it now, it gave an appearance of impropriety,” Malkus said.

Out of hearing of the jury, U.S. District Judge Edward Rafeedie expressed annoyance that Malkus and his attorney, Jerry Coughlan, were dwelling on the death of Marian Malkus.

“The jury is not supposed to decide this case on the basis of sympathy,” Rafeedie said.

Malkus’ testimony was consistent with what appears to be a common defense among the three defendants: that overzealous federal prosecutors have taken the most sinister view possible of the friendship between Frega and the judges and have seen a conspiracy where none existed.

Because the defendants are not charged with bribery, prosecutors need not prove that either Malkus or Adams took any action on behalf of Frega in exchange for his largess.

Rather, prosecutors need only provide sufficient evidence to allow jurors to infer that the judges and Frega conspired to act improperly. The three are charged under a federal racketeering law.

As shown by witnesses called by the prosecution, Frega bestowed gifts and favors on Adams, Malkus and Greer. Greer has pleaded guilty to one count of bribery.

The flamboyant Frega spent considerable time and money in pursuit of his relationship with the judges. For example, he spent months trying to patch up a professional tiff between Greer and Malkus, arranged for an apartment for Adams after he and his wife separated, and arranged for a job for Adams’ daughter. He also provided Christmas gifts, computers, car repairs and other items.

Greer, in testimony given in exchange for a recommendation of probation, said he had a sick feeling in his stomach that he was doing something wrong when he drove the Mercedes that Frega had helped purchase for him.

But he insisted that he never made a ruling in a case involving Frega that was not warranted by the law--although he did let Frega select “favorable” judges and he did help Frega with motions to be presented to other judges.

One hurdle that defense attorneys have to overcome is that the cozy relationship between judges and attorneys may appear shocking to jurors unaware of the close-knit nature of the legal community in San Diego.

Mario Conte, Adams’ attorney, said in his opening statement that Adams made errors of judgment in his dealings with Frega but did nothing illegal.

“There is a long jump between unattractive behavior and conspiring to commit racketeering,” said Harold Rosenthal, attorney for Frega.

Malkus is the first of the three defendants to testify. Although Adams and Frega have yet to say whether they will testify, defense attorneys have said they expect their case to be finished either late this week or next.