SANDRA LEHANE/ Certified Shorthand Reporter (510) 864-9645

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COMMISSION ON JUDICIAL PERFORMANCE

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4IN TilE MATTER CONCERNING JUDGE PETER J. McBRIEN

5 CJP NO. 185

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12 ORAL ARGUMENT

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1 DECEMBER 2, 2009 1:30 p.m.

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3 COMMISSIONER McCONNELL: All right. Please

4 be seated. Good afternoon, ladies and gentlemen.

5 These are public proceedings in the inquiry concerning

6 Judge Peter J. McBrien. I'm Justice Judith D.

7 McConnell, the Chairperson of the commission. All

8 commission members are present except commission

9 members Marshall Grossman and Samuel Hardage. Any

10 member of the commission may ask questions or

11 otherwise participate during this proceeding.

12 Respondent Judge Peter J. McBrien, of the

13 BEFORE TilE COMMISSION ON JUDICIAL PERFORMANCE 13 Sacramento County Superior Court, is present with his

14 SAN FRANCISCO, CALIFORNIA 14 counsel, Mr. James A. Murphy. The examiner for the

15 DECEMBER 2, 2008 15 commission is Mr. Andrew Blum.

16 16 This is the time and place duly noticed for

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REPORTED BY, SANDRA LEHANE REGISTERED PROFESSIONAL REPORTER

CERTIFIED SHORTIJAND REPORTER NO. 7372 155 Orr Road

Alameda, California 94502 (510) 864-9645

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1 PARTICIPANTS:

Commission Members:

Justice Judith McConnell, Chairperson

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Judge Katherine Feinstein, Vice-Chairperson

Mr. Peter E. Flores, Jr., Esq.

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Judge Frederick P. Hom

Ms. Barbara Schraeger

Mr. Lawrence Simi

Ms. Maya Dillard Smith

Ms. Sandra Talcott

Mr. Nathaniel Trives

Respondent:

Honorable Peter J. McBrien

Superior Court of Sacramento County

11 Respondent's Counsel:

18 James A. Murphy, Esq.

19 Murphy, Pearson, Bradley & Feeney

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21 Examiner:

22 Andrew Blum, Esq.

23 Office of Trial Counsel

24 Commission on Judicial Performance

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17 oral argument. Once the argument is concluded and the

18 matter is submitted, the Commission will meet in

19 closed session to deliberate. The Commission's

20 decision will be in writing and will be served on the

21 parties and will be made public. Pursuant to Rule 136

22 of our rules, our decision will become final 30 days

23 after it is issued. The Respondent has the right to

24 petition the California Supreme Court for review of

25 the Commission's determination.

For the benefit of counsel for both sides and

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2 for Judge McBrien, the members of the commission have

3 received and reviewed the transcript of the

4 evidentiary hearing and oral argument before the

5 Special Masters, as well as the report of the Special

6 Masters and the parties' briefs. In making your

7 argument, please assume that each commissioner is

8 familiar with the record and the issues presented by

9 the briefs. We have scheduled one hour for oral

10 argument. Each side is allotted 30 minutes. The

11 Respondent is welcome to address the Commission as

12 part of his 30- minute presentation. The Examiner will

13 be heard first.

14 Mr. Bl urn, you may proceed.

15 MR. BLUM: Thank you, Your Honor.

16 Good afternoon. Before I begin, perhaps I

17 should explain that I don't know how apparent it is

18 from up there, but I have poison oak all over my face.

19 So if I look a bit worse than usual, you'll assume

20 that's why.

21 There is very little to dispute about the

22 facts in this case. Most of the misconduct occurred

23 on the record. To say that Judge McBrien pushed the

24 Carlsson trial along would be quite an understatement.

25 He repeatedly threatened attorney Sharon Huddle with

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CJP 185 Oral Argument

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1 returning to court because, otherwise, he would have.

2 But as we know, it turned out the EPO phone call was a 3 little bit less than hvo minutes; so it didn't prevent 4 him from going back to court. In his answer, he gave

5 several explanations for what happened. He claimed

6 that the record reflects that Mr. Carlsson had already 7 completed his case-in-chief. But when you look at it,

8 it really doesn't reflect that at all. He never 9 rested. And the witness who was on the stand when the

10 judge walked out, that witness was on surrebuttal but I I the case wasn't on surrebuttal. In fact, the record

12 shows that Mr. Carlsson's re-direct was interrupted

13 and he never got back to it. He never got to finish 14 it.

15 In his answer, he repeated the claim that the 16 EPO must have been extensive and time-consuming. It 17 must have lasted beyond the time counsel remained in

18 the courtroom or he would have gone back. As I just

19 said, we know that that wasn't really the case. I t

2 0 wasn't very lengthy. 2 1 He claimed that M r. Carlsson's expert had

22 already completely testified -- excuse me -- and was

23 just re-testifying about things that he already

24 testified about. 25 SPECIAL MASTER ANDLER: Take a moment.

1 MR. BLU M : I'm losing my voice here.

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2 MR. MURPHY: Do you want me to talk for you,

3 Andy?

4 (Laughter.)

5 MR. BLU M : Go ahead.

6 But actually, the witness was not 7 re-testifying about things he already talked about. 8 He was dealing with this new revelation that he had

9 made a very larger error in his appraisal. The judge 10 also claimed that Ms. Huddle never identified any I I other witness she intended to call , but she did that

12 in her closing argument. She didn't have much chance 13 to do that as he was leaving the courtroom.

14 Finally in his answer, he stated that all the 15 testimony had to be completed by 4:30; but he really 16 gives no explanation for why that would be true. Why 17 couldn't he have gone a little bit l onger that day or

18 scheduled another date? At his deposition, he made a 19 new claim. He claimed that he had offered to let the

20 parties schedule another trial day. He claimed that

2 1 when he declared this trial has ended, he just meant

22 it was over for that day because he had already told

23 them they could have additional court time. But the

24 transcript showed that's not really true. And at our 25 hearing, he admitted that he had never offered them

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1 more time beyond the hvo days.

2 Again at the deposition, he mentions the EPO.

3 He said that he had t\vo responsibil ities; one was to

4 hear the trial, the other was to respond to the EPO,

5 and they were not compatible responsibilities. He

6 couldn't do both. But again, a hvo-minute EPO

7 wouldn't have prevented him from doing both.

8 By the t ime he submitted his pre-hearing 9 brief, the focus is sort of shifted more squarely on

10 blaming the attorney. In his brief, he claimed that I I during the trial Ms. Huddle didn't bring to his 12 attention that she had more testimony and exhibits to

13 offer. He didn't know. But that's what she was

14 trying to do as he walked away, and she again said it 15 in her closing argument. 16 By the time we got to the hearing, the focus

17 really was on blaming Ms. Huddle. They claim she 18 wasted time, though she really didn't take much longer 19 than the other attorney did, and she did face some new 20 issues along the way. And she tried to shorten the

2 1 trial by stip'ing to the sale of the four-plex. And, 22 of course, if the judge had really felt that 23 Ms. Huddle was wasting time, he has ways to cut down 24 on that. He can exclude evidence. 25 They argue that she sort of secretly wanted a

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1 mistrial, and the evidence of that is that she moved

2 to continue the trial on March 2 but that was denied. 3 But that really flies in the face of all her conduct 4 throughout the trial. She was repeatedly offered a

5 mistrial; she repeatedly refused it. She took steps 6 to avoid it, including waiving issues at the end of

7 the trial. Even afterwards, Exhibit 43 shows she was

8 still worried, even afterwards, about a mistrial. She 9 clearly didn't want one.

10 They even suggest that before the trial I I began, she was planning to appeal it. The only 12 evidence of that is that the eventual appellate 13 attorney briefed a trial matter for them. There is no

14 way that she would have known ahead of t ime that she 15 was going to lose the trial and yet win at the appeal.

16 It would be a very odd, very risky strategy, and I

17 don't think there is any evidence of it.

18 They also claim that after the trial , 19 Ms. Keeley offered to allow more trial time but

20 Ms. Huddle didn't respond. And Ms. Keeley testified

21 to that, but it's not really true. Ms. Keeley did - -22 a s the judge was leaving or just had left, s h e said

23 something about more time. But if you look at

24 Exhibit 42, Ms. Keeley must have very shortly 25 thereafter changed her opinion because instead of

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I offering more time, she actually threatened Ms. Huddle I

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SPECIAL MASTER CORNELL: What i f h e did come

2 with a mistrial and imposition of attorney's fees by

3 way of sanctions if she tried to put her client back

4 on the stand. So all of that were efforts to

5 discredit or to attack Sharon Huddle.

6 So why go to all that effort? Basically it's

7 because these other claims.-- "the lengthy EPO; I did

8 offer them more time" -- they are not panning out, and

9 this is what they are left with. The focus is now

10 that Huddle didn't ask for more time.

I I We're told that Judge McBrien has a policy

12 that the attorneys have to initiate the request for

13 more time. He apparently can't say it first. If they

14 don't ask, there's not much he can do.

15 Now, Huddle did everything she could to

16 inform the Court that she wasn't finished. She tried

17 to explain the need for more evidence as the judge

18 walked away. And though she was told that no further

19 testimony would be taken, in her closing argument she

20 explained that there was additional relevant evidence

2 1 introduced.

22 SPECIAL MASTER ANDLER: Let me ask a

23 question, ifl may.

24 MR. MURPHY: Sure.

25 SPECIAL MASTER ANDLER: Are you saying that

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I the judge was wrong in not stopping before he

2 continued with and concluded the call to find out what

3 additional evidence she wanted to present? You said

4 that--

5 MR. BLUM: Before the call?

6 SPECIAL MASTER ANDLER: As the judge had the

7 phone in his hand and he was apparently walking away,

8 I think your position is and the evidence supports

9 that he had the phone; he was walking away, and she

10 was trying to explain that she wanted to present more

1 I evidence. Would you have had him say, "Hold on,"

12 listen to what she had to say, and then give direction

13 as to how they should proceed? Or is your concern

14 really that he didn't come back out? I'm not sure if

1 5 you're faulting him for not interrupting his call to

16 hear her out.

17 MR. BLUM: No, I'm not faulting him for

1 8 interrupting the trial to take the emergency call. He

19 has no idea what that call is about; it could be a

20 dire emergency. But two minutes later, he should go

2 1 back. There's no reason he couldn't go back. He

22 said -- and I'm going to get to it, but he said that

23 "typically I would go back and we would settle this."

24 But he didn't. So walking away and declaring the

25 trial has ended, I think is a mistake, is wrong.

2 back, took the bench and said, "The time for evidence

3 is now concluded, but I will allow the parties to

4 submit written declarations on attorney's fees and

5 oral argument in writing" and any other request they

6 deem appropriate? Would you consider that to be

7 misconduct?

8 MR. BLUM: I think it certainly would have

9 been a lot better. I think he-- I'm speculating here

10 now, because we don't know what really would have

I I happened. But had he returned after the phone call

12 and inquired, "Okay, where are we? How much more do

13 we have?"-- maybe he could rule some of it is not

14 admissible or is cumulative and ask them to tell him

15 the remaining issues that they could submit in writing

16 as you just suggested, I think that would have been

17 fine. I don't think that this --

1 8 SPECIAL MASTER CORNELL: So what you're

19 arguing about is the way he did it, not result that

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2 1 MR. BLUM: Well, no. Because !think there

22 is still some relevant evidence he didn't hear because

23 of the way he handled it.

24 SPECIAL MASTER CORNELL: Well, did he prevent

25 anyone from submitting additional evidence? Do you

1 have anything in the record where he prevented --

2 MR. BLUM: Yes.

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3 SPECIAL MASTER CORNELL: Other than getting

4 up and walking off the bench? In other words, in

5 writing, did he prevent them from submitting any

6 additional evidence?

7 MR. BLUM: He gave them a limit of they could

8 write about attorney's fees and make their closing

9 argument. That doesn't allow them to introduce more

10 evidence, in which she described, for example--

I I SPECIAL MASTER CORNELL: What she submitted

12 went beyond that, didn't she? That he didn't exclude?

13 MR. BLUM: She didn't introduce more evidence

14 in her writing. She objected to the process and said,

15 "I have this other stuff to introduce," but it was

16 never introduced.

17 SPECIAL MASTER DE BELLEFEUILLE: You

1 8 highlighted the fact that Mr. Carlsson's testimony was

19 interrupted and never taken up again. He was on

20 redirect examination. Do we have any idea of what

2 1 remained to be discussed with him in evidence?

22 MR. BLUM: Well, she laid that out in her

23 closing -- in her written closing argument where she

24 objected to the process. She said her client had to

25 talk about there was a tax return, there was some

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