Defender Says Judge Is Biased

Claiming possible bias, an attorney from the public defender’s office asked Monday that a Ventura County judge who publicly endorsed a top-level prosecutor in his judicial campaign be disqualified from hearing her case.

Public defender Christina Briles filed the affidavit of prejudice against Judge Barry B. Klopfer.

The affidavit is the first attempt by public defenders to disqualify 14 Ventura County judges from hearing their cases because of their outspoken support of Chief Assistant Dist. Atty. Kevin J. McGee in the judicial race to fill the seat of suspended Judge Robert Bradley. McGee faces Senior Public Defender Gary Windom in a November runoff election.

While the judges’ decision to endorse a political candidate does not violate any legal canon, it has nonetheless touched a nerve with public defenders in a courthouse where the bench is dominated by former prosecutors.

“It is discomforting to appear in a courtroom where the judge endorsed the top attorney in the office of the person appearing opposite you,” said public defender Kenneth Clayman. “I think it is clear that the judges need to avoid the appearance of political bias. That’s something they need to be zealous about.”

Judge David Long, who signed a letter to the editor endorsing McGee that appeared in The Times on May 31, said his support for McGee was as an individual.

“This is not ‘the court,’ ” said Long, one of the 14 judges who signed the letter. “I was originally asked by Mr. McGee to support him, and I agreed to.”

He said the endorsement letter arose from a request from the editor of a local legal newsletter for some discussion of the contested judicial race.

Sheila Gonzalez, top court administrator, said the legal process could be slowed down if a number of affidavits are filed. She said judges from other counties may have to be called in to help with reassignments.

“I think it’s unfortunate for the political arena to move into the courtroom,” she said. “It’s one of those management crises you have to deal with. We manage chaos. We’ll deal with whatever comes our way.”

In the affidavit filed Monday, Briles states that Klopfer “was a signatory to a letter published in the two largest daily papers in Ventura County” that identified the judge by his office in his endorsement of McGee.

That letter was published two days before the June 2 primary election in which McGee ran against Windom and Cathleen Drury, a family law attorney.

The affidavit also refers to a radio spot by Judge Charles W. Campbell in which he announced a majority of the county’s 25 judges supported McGee.

“These facts might reasonably cause a member of the public aware of these facts to entertain a doubt that the judge was impartial or that he possessed a bias in favor of the prosecutor, a Ventura County District Attorney,” Briles wrote in her affidavit.

Once an attorney files an affidavit of prejudice, the judge has 10 days to respond. If the judge does not respond, he is disqualified and a new judge is assigned, according to Assistant County Counsel Robert Orellana.

If the judge does respond, a neutral judge--possibly from outside the county--makes a determination on whether there are grounds for disqualification. Orellana said he has seen this process take anywhere from two days to three months.

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If the case is assigned to another of the 14 judges who endorsed McGee, the public defenders can file another affidavit.

“They can do those forever, as long as they are upheld,” Orellana said.

Public defender Clayman said the public defenders are not pursuing a blanket protest.

“The inference that there was any group decision, or office policy, is false,” he said. “We do not direct our lawyers to do things. We do not want to be disruptive of the system.”

He said he does not expect attorneys to file affidavits in every case. They will put the interests of their clients first, he said.

Windom did not return phone calls Monday.

Retired Judge Edwin Beach, who endorsed Windom, said it is not inappropriate for judges to endorse in a judicial race.

“There is nothing in the Constitution or statutes that doesn’t allow even a judge to put his foot in his mouth once in a while when trying to do something for a friend,” Beach said. “But I wouldn’t make a mountain out of a molehill.”

Constance Dove, executive director of the 2,500-member San Francisco-based California Judges Assn., said the judges’ actions are not an ethical problem.

“It’s just a messy gray area that judges don’t like because the rules aren’t clear,” she said. “And of all the people in the world, judges go by clear rules. And lawyers have even fewer rules to go by when they challenge judges.”