More Trying Times for Accused Judge

Orange County Superior Court Judge Susanne Shaw, currently under state investigation for alleged judicial misconduct, presided over a 1997 drug case that was dismissed after another judge ruled that she persuaded a defense witness not to testify.

The incident, uncovered this week in court documents, is not related to the 12 charges against Shaw that a state commission is now investigating. In most of those allegations, lawyers and others accused the 53-year-old judge of verbally abusing defendants, especially those accused of drunk driving and drug use.

But some experts said the 1997 Irvine case could be more serious because of its ramifications.

Shaw’s actions during a pretrial hearing violated the rights of the defendant, Judge Everett Dickey ruled, so tainting the proceedings that charges against him must be dismissed. According to court records, prosecutors concurred with Dickey’s decision, saying they were also troubled by Shaw’s actions.

At issue is a conversation Shaw had with the witness and his attorney in her chambers. According to a transcript, Shaw repeatedly told the witness he could open himself up to criminal charges if he testified because the defendant allegedly committed the crimes at his house.

Dickey concluded that Shaw was “actively lobbying” the witness not to take the stand. “There was a serious problem here,” Dickey concluded. “The judge can’t cross over the line. It is perfectly proper to advise the witness who appears to be ready to incriminate himself of his rights. . . . But, it appears that the court went beyond that here.”

It’s unclear whether anyone reported the incident to the California Commission on Judicial Performance, which this week is receiving testimony in Santa Ana on the 12 other allegations. But some legal experts said they were puzzled by the judge’s handling of the matter.

Michael J. Brennan, a professor of law at USC who reviewed the transcripts at The Times’ request, said “the judge basically intimidated the witness into not testifying by raising the specter of prosecution, which quite frankly was highly unlikely.”

Brennan said the witness could have been shielded by invoking his 5th Amendment rights not to incriminate himself while on the witness stand. Court records show his attorney advised him of such rights and he was willing to testify before the meeting with Shaw.

While cases are often overturned on appeal because of a judge’s decision, experts said it’s highly unusual for a case to be tossed out before it goes to trial because of judicial conduct.

Shaw’s attorney, Thomas M. Goethals, declined to comment on the 1997 case, saying he had not reviewed it.

For the last three days, the judicial commission has heard testimony in Santa Ana from both supporters and critics of the judge. Earlier this year, the commission filed a 12-count complaint accusing Shaw of violating several judicial ethics standards, such as making comments in court that were intimidating, undignified or discourteous.

On Wednesday, Shaw strongly denied those charges, saying most were groundless. She did not address the 1997 case, which is not at issue in the hearing.

The witness in that case was scheduled to testify during a preliminary hearing in Shaw’s courtroom. The defendant had been arrested at the witness’ home in Irvine on suspicion of dealing marijuana and methamphetamines.

According to court documents, police allegedly found marijuana in the witness’ house and about 19 grams of methamphetamine in the defendant’s backpack. The officers said they arrested only the defendant because he said the drugs belonged to him.

Joseph Donahue, the defense attorney, said in a interview Wednesday that the witness was crucial because he would have helped determine whether police officers legally entered the home and searched the bag.

But after the closed chambers meeting with Shaw and his appointed attorney, the witness changed his mind about testifying, court records show.

“He’s got two little juveniles there. There’s marijuana there. There’s a bong there,” Shaw said in the closed hearings. “He can do what he wants, but I don’t think it’s in his best interest at all” to testify.

Then turning to the witness, Shaw said, “Whether you’re making a smart move or not, boy, when you’re finding yourself with charges pending after this . . . “

“Is it likely charges will be filed?” the witness asked.

“What do you think?” Shaw replied. “Potentially, they can be, yeah.”

When the case went to trial, it was assigned to Dickey. At Donahue’s urging, Dickey reviewed Shaw’s meeting with the witness and eventually decided to dismiss the case.

According to court transcripts, the deputy district attorney on the case concurred with Dickey’s ruling. “If Judge Shaw had merely appointed counsel and left it that, that would have been fine,” prosecutor Mark Sevigny stated. “Inasmuch as she entered into a debate or a discussion as to the relative merits of this witness testifying or not testifying . . . that does cause me some concern and I think, unfortunately, we may have passed over that fine line.”

Donahue said he did not report the incident to the state judicial commission, assuming that Judge Dickey would do so. Dickey said through his clerk that he could not comment on the case because of Shaw’s pending hearing by the commission.

Victoria B. Henley, director and chief counsel of the Commission on Judicial Performance, declined to say whether the incident was ever reported to the agency because such complaints are confidential until formal charges are filed.

Shaw, a former prosecutor, was elected to the bench in 1984. She is currently in charge of felony arraignments in Harbor Justice Center in Newport Beach.

Supporters describe her as a tough but fair judge. They said she is outspoken and acknowledge that some of her methods are unorthodox. But she is committed to seeing justice done, they said.

“I think she has a certain amount of emotion, but it is not to the point of clouding her fairness,” Deputy Public Defender Lewis Clapp testified Tuesday.

The hearings are expected to end today. After that, the panel of appellate court justices will file a report to the full commission, which will decide Shaw’s fate. If Shaw is found guilty on the counts, the penalty could range from a simple reprimand to removal from the bench. A final decision is not expected for several months.