Angry Judge Tells Lockyer to Appear in U.S. Court

In a highly unusual move, a Los Angeles federal judge has ordered California Atty. Gen. Bill Lockyer to personally come to his courtroom Tuesday morning or possibly be held in contempt of court.

The dispute arises out of a case in which the attorney general’s office is representing Orange County authorities against the federal public defender’s office, which is attempting to overturn a death penalty sentence on constitutional grounds.

In December, in response to a motion from the public defenders, U.S. District Judge Manuel L. Real issued a broad discovery order directing the attorney general to produce records on a broad array of subjects related to the 1983 murder conviction of John L. Visciotti. Visciotti, now 41, was convicted in the 1982 murder and robbery of Timothy Dykstra.

Among the items that Real ordered the attorney general’s office to produce were internal memorandums from the Orange County district attorney’s office about how its attorneys decide in which cases they will seek the death penalty. The order also included other materials from the district attorney’s office, the Orange County Sheriff’s Department, the Anaheim Police Department, the California Youth Authority and the California Department of Corrections.

According to court files, not all of the information was produced by a deadline that Real set. On Feb. 1, Real told Lockyer’s assistants that their boss must attend a Feb. 8 hearing on the issue.

When Lockyer failed to appear Monday, Real got angry. Initially, the judge told the assistants to get Lockyer there right away. They responded that this was not possible because Lockyer was at San Quentin for the pending execution of Jaturun Siripongs.

A 1965 appointee of President Lyndon B. Johnson, Real is not hesitant to use harsh language when dealing with recalcitrant attorneys. Indeed, the judge is known around the federal courthouse for telling lawyers: “This is not Burger King. We don’t do it your way here.” Four years ago, he held Lockyer’s predecessor Dan Lungren in contempt.

On Monday, Real sternly told one of Lockyer’s deputies that he would reconvene the Visciotti hearing Feb. 16 and that the attorney general had better be there. Real said he wants to question Lockyer about his office’s alleged failure to comply with his discovery order.

In turn, Lockyer’s office late this week filed papers with the U.S. 9th Circuit Court of Appeals seeking an emergency stay of Real’s order on Lockyer’s appearance. By late Friday, the appeals court had not ruled.

At the hearing in Real’s court, two of Lockyer’s assistants tried to persuade the judge that their office had complied with his discovery order, but Real sharply disagreed. He also upbraided the prosecutors about Lockyer’s failure to appear.

Deputy Atty. Gen. Megan Beale contended that her office had complied and said she believed that Lockyer did not have to appear as a result.

But Real countered that there had not been compliance. Beale retorted that some of the documents were not in the possession of the attorney general’s office. Real responded:

“It doesn’t make any difference. You are the attorney general’s office, and the attorney general’s office has supervision over all the sheriffs and district attorneys of this state.

“And that’s very clear, counsel. . . . I want the attorney [general] here, and I want him here now!”

Soon thereafter, Beale’s supervisor, Gary Schons, senior assistant attorney general, tried to assuage Real--with similar results.

“As counsel has pointed out, we have fully complied with the request for discovery of documents,” Schons said.

Real retorted, “I tell you, you have not complied, counsel.

When Schons attempted to respond, Real declared: “I make the decision, not you,” according to an official transcript.

At another point, Schons said he was “not aware of any power the attorney general has to issue orders to the sheriffs . . . “

Before Schons could finish, Real responded: “It’s in the Constitution of the state of California and it’s in the statutes of the state of California. That’s where the power is. I want him here. . . . I want the attorney general here on the 16th, since you people don’t seem to understand the Rules of Civil Procedure.”

When Schons started to ask the judge if Lockyer could be excused if the office submitted more material, Real cut him off and said, “Nine a.m. on the 16th. I want the attorney general here. OK?”

Schons responded: “Thank you, Your Honor.”

However, in papers filed with the 9th Circuit on Thursday, the attorney general’s office contended that Real exceeded his jurisdiction in issuing the original discovery order. Lockyer filed a declaration contending that he had no personal knowledge of the case and that he had no control over documents and records maintained by sheriffs, district attorneys and other public agencies. “Requiring me to personally appear in this action, which I have entrusted to my deputies, will needlessly interfere with the performance of my other duties.”

Lockyer spokesman Nathan Barankin said the attorney general is supposed to attend the funeral of a slain Sacramento police officer, scheduled for the same time as the court hearing.

The public defender’s office contended that Real clearly has the authority to order Lockyer to court and that it is “specious” for his assistants to contend that the attorney general’s office does not have control over lesser state law enforcement agencies and a district attorney’s office.

Deputy Federal Public Defender William H. Forman said prosecutors had failed to turn over several major categories of material that Real ordered produced--including notes from the Orange County Sheriff’s Department.

He also said much of the 2,600-page package they did turn over was not organized or otherwise identified in a way that made it clear what the materials were.