Professional Documents
Culture Documents
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INQUIRY CONCERNING
JUDGE PETER J. McBRIEN
CJP NO. 185
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TRANSCRIPT OF THE
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SACRAMENTO, CALIFORNIA
APRIL 3,
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VOLUME 3,
2009
PAGES 526 -
630
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REPORTED BY:
SANDRA LEHANE
(510) 864-9645
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' - - - - - - - - - - - - I N RE CJF NO.
185 - 4 / 3 / 0 9 - - - - - - - - - - - '
526
PARTICIPANTS:
SPECIAL MASTERS:
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Honorable Dennis A.
Associate Justice
Court of
eal,
Cornell
fth District
Honorable Gail A.
Andler
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Respondent's Counsel:
James A.
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Murphy,
Esq.
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Ex
ner:
Andrew Blum,
Esq.
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L - - - - - - - - - - - - I N RE CJF NO.
185 -
4/3/09--------------'
527
APRIL 3,
2009
9:00 A.M.
000
Good morning.
in the
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me,
Exhibits 42,
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MR.
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12
We
ay.
44.
BLUM:
ear to be marked
Is that correct,
Yes,
Mr.
Mr.
Murphy?
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MR.
14
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Blum.
Your Honor.
have in front of
That's correct.
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MR.
Yes,
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they have.
Mr.
Murphy,
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for the
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reporter.
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And yesterday,
413109--------------------~
exhibit to us,
would do so.
Is that available?
MR. MURPHY:
It is,
Your Honor.
had it
d as Exhibit N.
premar
MR.
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And I
MURPHY:
N,
as in negative.
N,
as in Nancy,
Pardon me?
I
believe.
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MR.
MURPHY:
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MR. MURPHY:
this is
But there
The difference -
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Blum.
then.
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only have one copy of the local rules and the complete
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And I
Blum beforehand.
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when I
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Mr.
~-----------------------IN
I was
Court.
Exhibit 0,
MR.
MR.
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MURPHY:
MURPHY:
0,
0,
as in Oscar.
as in os scar;
BLUM:
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MR.
MURPHY:
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No,
Your Honor.
No,
Your Honor.
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MURPHY:
Mr.
All right.
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testified as follows:
---000--
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Then you
Murphy.
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right.
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1'm sorry,
O.
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Okay.
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which is
Garcia,
G-a-r-c-i-a.
SPECIAL MASTER CORNELL:
~-----------------------IN
Thank you.
413109--------------------~
530
DIRECT EXAMINATION
BY MR. MURPHY:
Q.
Good morning,
A.
Good morning.
Q.
You are a
Judge Garcia.
erior Court?
A.
Yes,
Q.
I am.
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11
12
Davis.
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but I
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have.
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16
17
Q.
Followi
A.
I did.
California Bar,
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Washington,
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there,
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23
did you
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21
Q.
D.C.
Supreme Court.
What were the inclusive dates of your active
From 1974,
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25
reserve status,
~-----------------------IN
4/3/09----------------------~
531
bench in 1987.
2
3
Q.
A.
Tehama,
1974.
in
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11
small.
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13
whatever,
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15
child support,
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time,
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the Law.
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Excuse me.
22.
it was very
anything in between.
paternity.
l\nd then
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20
Office,
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he -- I
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of California at Davis,
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that.
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governor,
I did
~------------------------IN
4/3/09----------------------~
532
And so I
a district
attorney,
one judge.
And then I
in Municipal Court.
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9
10
Q.
did
again,
March of 1989
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12
13
Q.
14
departments?
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A.
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1987 or 1988.
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18
that back.
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assignment.
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Q.
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department?
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A.
25
Q.
The Court
I take
would be my first
4/3/09----------------------~
533
Court?
A.
I have not.
position.
Presiding Judge.
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8
9
Q.
udges also
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13
was not in a f
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15
Q.
ly law assignment.
Commission proceedings,
have,
multiple times.
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A.
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Q.
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A.
I believe three.
19
Q.
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21
a Special Master?
A.
You know,
I should.
just
one was in
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Orange County.
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24
know -- I
You know,
the names -- I
you
and I didn't
4/3/09--------------------~
534
One still is a s
Q.
A.
Q.
A.
But,
was.
I'm sorry,
Q.
A.
I do.
10
Q.
11
A.
12
Q.
13
Office?
14
A.
Yes.
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Q.
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A.
I did.
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Q.
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relationship?
A.
Well,
I was,
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General's Office,
25
and I
excuse me.
Judge McBrien
4/3/09--------------------~
535
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6
A.
Yes,
Q.
A.
Yes.
Q.
I would.
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11
A.
believe -
I believe I
13
before
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16
Q.
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McBrien's assignment?
A.
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You know,
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assignment.
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fact,
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25
relationship?
12
As a matter of
as Presiding Judge,
4/3/09--------------------~
536
Well,
A.
first,
do.
upon
as a judge, he has
So,
you know,
sat
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11
law well.
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He's
He knows the
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14
15
organizational skills,
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18
person that I
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bar.
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24
it was
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wanted to supervise,
and he has
thought he had
it was an
And there -
gosh
both
413109----------------------~
537
Judge-
Scotland,
Presiding Judge -
You know,
or Presiding Justice
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of fact,
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16
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21
Q.
And
as I would say,
for
A.
He -- he continued that.
towards that,
Q.
Now,
He -
and he worked
yes.
when Judge McBrien joined the bench and
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A.
the family
It did.
4/3/09--------------------~
538
Q.
change?
A.
He was,
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10
A.
12
stated.
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think,
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15
resolve.
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will.
Q.
in
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17
as
Q.
think i t is,
previously
ght reasons.
It is a
it's a
There's a lot of
joint venture,
if you
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19
the bench?
excuse me,
20
A.
21
Q.
22
brings?
23
A.
to
do.
Well,
again,
24
25
IN RE CJF NO.
believe
185 - 4 / 3 / 0 9 - - - - - - - - - - -
539
professionals.
curiosity.
believe,
He still
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- well,
I think everybody
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in regards to
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the issues,
I think,
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issues.
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MR.
have,
MURPHY:
Your Honor.
All those
The
And I think
resolving those
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23
MR.
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25
the
BLUM:
Mr.
Blum?
No quest ons.
May this witness be
excused?
L-------------IN
RE CJF NC . ..I85 - 4 / 3 / 0 9 - - - - - - - - - - - - - - - 1
540
Your Honor.
MR.
THE WITNESS:
MURPHY:
Yes,
THE WITNESS:
---000--
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12
Please state your full name and spell your last name.
THE WITNESS:
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testified as f0110ws:
---000--
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hand.
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Thank you,
Your Honor.
S c-o t
I-a n-d.
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DIRECT EXAMINATION
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BY MR. MURPHY:
Thank you.
21
Q.
Good morning,
22
A.
Good morning.
23
Q.
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25
Justice Scotland.
A.
Presiding Justice
4/3/09--------------------~
541
Q.
Excuse me.
A.
District.
Q.
I'm a stickler.
Sorry,
A.
Since 1998.
Q.
Third Appellate
briefly,
for the
ecial
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A.
11
have a J.D.
12
degree
13
Q.
14
A.
In 1974.
15
Q.
16
accepting a
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A.
In 1987.
18
Q.
judicial position?
19
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21
erience?
A.
Yes.
Actually,
before I
graduated
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23
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25
so I
'60s,
became a
So I
4/3/09--------------------~
542
001.
to Sacramento,
Attorney's Office.
So I
came back
I became a
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8
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11
young,
and I thought,
12
and
13
bit more about the law than just trying cases all the
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time.
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16
17
and writs,
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District Court.
19
"Well,
I did mainly cr
so I
inal appeals
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unit.
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25
So I
and
185
So I
I would also
4/3/09-------------------~
543
General's position.
either in support
office.
campaign.
And then
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Office.
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Governor Dukemajian.
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example,
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carried out.
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in policy,
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I was
did that,
So,
for
the Chief of
So I did
4/3/09--------------------~
544
ars.
And then I
2
3
Governor,
office in
1989,
10
and I
got appointed as a
judge of the
did that for less
ril of 1987.
took
when Presiding
11
Q.
12
13
A.
14
Q.
You know a
15
A.
16
Q.
17
A.
18
Q.
Now,
do.
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Superior Court,
21
was
A.
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24
assignment.
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practitioners.
had
actually
185
There's
4/3/09-------------'
545
challenging,
mu
law.
August of
Presiding Judge,
And during a
found it to be a very
interesting position.
enjoyed it very
'87 until
as
d me to go to a
And so I
handled a number of
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11
nature.
12
Q.
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14
Superior Court?
15
A.
We had
16
other S
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calendar system;
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courts.
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Unless
we had
unless i t was a
dentiary hearings.
4/3/09----------------------~
546
settlement,
assignment.
Q.
If
And as I mentioned,
we had many,
many
did that
10
A.
It did.
11
Q.
12
A.
13
is -- first of all,
14
law lawyers
15
Of course,
16
17
18
handled,
19
adoptions.
20
the assignment.
My understanding
of course.
by the way,
domestic violence.
We handled
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master calendar.
24
25
And instead,
L-----------~------------IN
as I
And
un
4/3/09--------------------~
547
hear trials.
SPECIAL MASTER CORNELL:
THE WITNESS:
BY MR.
Q.
Appeal,
10
correct.
MURPHY:
As Justice of the Third District Court of
do you have occasion to review matters
11
A.
12
Q.
13
do.
14
A.
have a great
15
16
court.
But I
17
course,
18
19
law,
20
21
period of time,
22
23
24
So I
25
of course,
of
also
continue to attend
-
have,
over a
RE CclF NO.
185 - 4 / 3 / 0 9 - - - - - - - - - - - - - - '
548
also,
by the way
witness,
up
court.
and I
said no,
And so I
and I
did research.
looked
looked
so I
researched
10
whom I
11
much,
12
13
Judge McBrien
14
but
I'm sorry.
respect very
Because I
knew from my
I have known
15
Q.
16
A.
17
to know,
18
When I
19
20
General's Office,
21
General there.
22
professionally.
23
extent.
24
He played on one;
25
So I
mainly
Of course,
we
His -- one of
4/3/09 - - - - - - - - - - - - - - - '
549
frequently,
So,
on occasion -
not
mainly
professionally,
then,
Governor's Office,
I,
10
mentioned,
11
12
13
14
of course,
15
And
Pete
as I
if I may
16
17
18
with you.
19
20
extent,
21
Municipal Court.
22
Court of Appeal,
23
Court.
24
25
assignment.
In fact,
I can't remember,
it might
to be honest
to a certain
~-------------------------IN
4/3/09--------------------~
550
Because of my -
as I
good position -
performance as a
Q.
indicated
judge,
as well.
in addition to your
10
11
12
13
14
have
15
A.
have.
16
Q.
17
A.
18
19
20
Q.
21
detail,
22
23
24
25
Now,
in fairly great
~--------~------~-----IN
4/3/09----------------------~
551
A.
have.
Q.
A.
was a
Well,
when I
Q.
think it was
it was in mid-March.
by Judge McBrien?
10
A.
110.
11
Q.
12
reversals?
13
A.
Yes.
14
Q.
15
A.
16
17
either in whole
Mostly in part.
or in part.
Q.
18
Carlsson v.
19
A.
It does.
20
Q.
21
22
23
Carlsson?
authored by me.
24
Q.
Okay.
25
A.
Yes.
4/3/09--------------------~
552
Q.
A.
Only
part.
Q.
number of reversals,
approximately 5%?
A.
only two
If I
Because I
10
calculated that,
11
part,
12
13
14
25 percent.
15
16
17
issues.
So that,
18
19
20
21
which
Because
is a very
unpublished decisions?
22
A.
Correct.
23
Q.
24
25
Court of Appeal?
A.
Correct.
4/3/09--------------------~
553
Q.
Now,
A.
Yes.
current.
10
11
12
but I wanted to be
the
fami~y
13
A.
law area?
Well,
it's excellent.
He has a reputation as
14
15
knowledgeable,
16
17
18
19
20
21
22
well.
23
very thorough,
who's very
very careful.
A number
very
24
25
4/3/09--------------------~
554
certain point,
on.
10
case.
And Judge McBrien -
11
a number of them
12
13
waste time.
14
perhaps,
15
16
17
18
would
19
20
21
But,
appear abrupt.
23
prepared.
Q.
then he
so to speak.
in other words,
25
22
24
They
just
lawyers?
L-------------------------IN RE CJF NO. 185 --
4/3/09----------------------~
555
A.
Yes,
yes.
And actually,
person said,
Q.
as this
So -
temperament?
A.
Well,
the same.
10
11
you know,
12
of the attorneys said any time that they ever saw him
13
14
pro per.
responding appropriately.
In fact,
several
it was a
15
Q.
16
A.
17
18
in his court.
19
Q.
What is
20
A.
Well,
If you're a good,
is:
22
23
24
heard
21
25
What I
~------------------------IN
4/3/09----------------------~
556
the canons?
A.
as that language
,
lS
used In
undignified.
job.
inappropriately,
law judge,
10
know.
11
12
13
Q.
In your opinion,
you
he
14
A.
Absolutely.
15
16
17
18
another assignment.
19
20
21
22
23
24
25
ly law,
if he took
I'm sorry,
When I
the
557
were really,
you know,
over.
And it was
fami
th~t
81
Because
q!
~l
Judge McBrien
really respected of
111
policy.
13
141i
think,
15
assignment it is.
And so -
l..;-J
as
what a good
16
he stayed there.
He stayed
171
18
assignment.
ody happy.
19
20
cases,
22
23
issues.
24
And I
25
wouldn't want to
sometimes you
y.
serious
L---~~---------IIJ
lot of -judaes
~
CJ
that.
RE
~JC
..
-; 0
c:.
...L L'J
A- /I
r:;r:;o
..J ....J U
1
2
3
commitment and his care and his concern about family
And I
4
law cases.
if he were to
or whatever reason,
if he were,
to be found to have
10
11
frankly -- I
12
Carlsson case.
justice.
but
or whatever,
allow -- that
"I
I
possible crime.
19
judge and I
20
IvIR.
And I
canlt imagine,
if I
was the
There is no
question pending.
22
25
know that
18
21
And I
Sustained.
t1URPHY:
our Honor,
in your' opinion,
is Judge l\1cBrien
!,IC"
1 85
s .
Q.
years?
A.
In my opinion,
he has.
Q.
he is an asset to the
A.
MR.
10
have.
MURPHY:
Thank you.
11
12
MR.
13
14
BLUM:
excused?
MR. MURPHY:
16
17
MR. MURPHY:
him,
He may be excused.
Thank you very much.
though.
19
20
MR. MURPHY:
21
22
Blum?
No questions.
15
18
Mr.
Judge McBrien,
23
THE WITNESS:
24
25
I am.
Please be seated.
4/3/09--------------------~
560
MR.
Thank you,
MURPHY:
Your Honor.
---000--
---000--
DIRECT EXAMINATION
BY MR. MURPHY:
testified as follows:
Q.
Judge McBrien,
10
Tentative Decision,
11
Do you have
12
A.
13
Q.
14
A.
15
Q.
16
do.
it 21?
17
A.
Yes.
18
Q.
19
20
Well,
I,
first of all,
21
22
23
1S
24
25
Q.
continually looked
in chronological order.
L - - - - - - - - - - - - - J N RE CJF NO.
185 -
4/3/09--------------'
561
by the parties?
A.
I did.
Q.
A.
I did.
Q.
decision?
A.
I did.
Q.
10
11
A.
12
(Reading) :
actually,
why don't
"
13
14
15
account."
16
Q.
17
A.
18
19
20
21
Ms.
22
Ms.
23
to the contrary.
24
unusual as it is,
25
Carlsson,
Ms.
that she
Keeley
And
4/3/09--------------------~
562
Did Mrs
No.
by Mr.
words,
contribute to;
certain date,
Emplo
In other
you don't
es,
after a
10
11
12
13
14
was
15
16
19
20
21
THE WITNESS:
BY MR.
Q.
I presume.
It was.
MURPHY:
The decision goes on to state:
It
The request by
17
18
participated as Tier 2.
(Reading) :
"Each is awar
"Each is
Your Honor?
d one-half of the
22
23
24
25
Q.
8/8/87,
3/29/04."
4/3/09--------------------~
563
A.
needed distribution,
parameters of that.
Q.
through a quadro
(phonetic)
or
Going down to t
A.
needed.
1S
10
Q.
11
A.
or the
12
13
14
15
well-known is DissoMaster.
16
17
from DissoMaster.
18
19
20
21
Q.
22
needed?
23
A.
The most
Ex-Spouse is actually
First of all,
Both
24
25
the
4/3/09--------------------~
564
brought.
It wasn't,
to my mind,
support.
been addressed.
It was,
Okay.
SPECIAL MASTER ANDLER:
judgment of child
Excuse me.
Did you
10
11
did you have the attorneys each run a version and give
12
THE WITNESS:
13
Well,
14
15
I think Ms.
16
or
Huddle too,
and
17
18
19
counsel?
20
THE WITNESS:
21
22
23
24
of dispute.
25
Carlsson's
and
Thank you.
413109--------------------~
565
BY MR.
Q.
Correct.
MURPHY:
Judge McBrien,
Exhibit 21,
of spousal support.
turning to Page 2 of
A.
Correct.
10
Q.
11
A.
12
Q.
How much?
13
A.
14
Q.
15
A.
The
16
much as Mrs.
17
18
one,
19
20
21
22
an important,
23
24
25
did.
Mr.
Carlsson.
Mrs.
Carlsson's evidence,
the dentist,
to my mind,
two,
suggested,
that he was
4/3/09--------------------~
566
worked.
hours,
words,
10
And fran
y,
or whatever,
In other
regardless of the
Q.
and
on Page 2,
states:
could -
11
12
13
14
support."
the
15
A.
Correct.
16
Q.
17
advanced,
18
support?
19
A.
Yes.
20
Q.
21
A.
She was.
22
Q.
23
24
25
Mr.
what
an extended weekend,
~------------------------lN
It was
4/3/09----------------------~
567
morning.
Q.
believe,
3
4
And that,
THE WITNESS:
It was not.
THE WITNESS:
That wasn't a
BY MR.
10
That arrangement
is that correct?
It was.
MURPHY:
Q.
11
12
real property,
13
Ri ver house.
14
A.
Correct.
15
Q.
16
17
A.
18
Q.
Why?
19
A.
First of all,
did.
And secondly,
the
20
four plex.
21
Mr.
22
23
24
25
~-----------------------IN
However,
he presented
Carlsson.
or
And so I
4/3/09--------------------~
568
Mr.
house,
amount,
loan on.
So I
by ordering it sold,
figured
certainly if
that would be
that
10
11
12
13
Q.
14
A.
I mean,
know that
15
16
17
attorney.
18
But I
Q.
Finally,
20
A.
I did.
21
Q.
22
A.
It wa s.
23
Q.
24
A.
19
25
fees?
Mr.
Carlsson?
First of all,
~-----------------------IN
more than
413109--------------------~
569
I want to say,
any,
if
determined by me.
10
And also,
11
changes in position.
12
13
14
15
16
17
18
19
price,
20
21
house,
22
in the
23
24
Mr.
25
four-plex,
you know,
was falling.
And then
actually,
L . . . - - - - - - - - - - - - - I N RE CJF NO.
185 -
4/3/09-----------------1
570
attor
that issue.
discuss it,
a new topic.
recess?
then I
MR. MURPHY:
Your Honor,
10
11
But I
Yes.
12
(Recess taken.)
13
We're back in
14
15
16
17
MR.
18
MURPHY:
Mr.
Murphy.
Thank you,
Mr.
in the
Your Honor.
Blum and I
-- or
19
Mr.
20
21
fairly short,
22
23
which should be
24
Okay.
25
MR.
MURPHY:
Your Honor,
- - - - - - - - I N RE CJF NO.
185
have,
as noted,
413109--------------------~
571
had marked,
which I
Exhibit K.
Exhibit L,
Myles; as Exhibit M,
Blum,
a one-page document,
as
10
11
as Exhibit 0,
12
13
as of March 2006.
15
14
MR.
17
BLUM:
into evidence.)
21
BY MR.
24
25
Your Honor.
They will be
20
23
No,
received.
19
22
of these exhibits?
recei
16
18
and
Q.
MURPHY:
Judge McBrien,
each ex parte,
85 -
4/3/09--------------------~
572
dispos
on
e ex par e.
Q.
A.
through counsel,
Sharon Huddle,
Carlsson
for a continuation of
and it was
A.
It was.
10
Q.
11
denied?
12
A.
It is.
13
Q.
14
that you,
in fact,
15
A.
It does.
16
Q.
17
A.
Yes.
18
Q.
A.
19
20
is?
21
in 1998 by me,
22
Larry Myles,
23
24
25
Rebecca Myles.
Gladys Myles,
And then
also represented by
4/3/09--------------------~
573
Ms.
Huddle.
completion and,
Q.
wo and a
, declared a mistrial.
estimate
a two-day trial?
A.
It was.
Q.
withdraw that.
10
11
But after
was there a
12
A.
There was.
13
Q.
14
A.
It was.
15
Q.
16
A.
I did.
17
Q.
18
19
Yes.
by the parties?
correct?
20
21
22
the child.
23
24
area,
25
their testimony.
And,
frankly,
if any,
certainly,
185 - 4/3/09
574
issue.
SPECIAL MASTER CORNELL:
When a
strial is
declared,
THE WITNESS:
Actually,
always do.
setting calendar.
10
11
12
THE WITNESS:
13
14
Right.
In this case,
it
15
THE WITNESS:
did.
16
17
18
only issue,
19
20
21
BY MR.
22
23
Q.
MURPHY:
Ju
Exhibit M,
e McBrien,
as in Mary.
24
A.
Yes.
25
Q.
What is Exhibit M?
~-----------------------IN
4/3/09--------------------~
A.
Keeley and
and we went a
A.
I did not.
10
Q.
12
A.
13
Q.
14
A.
15
Q.
16
A.
Yes.
17
Q.
18
A.
It was.
19
Q.
11
20
day?
did.
and Exhibit 0.
21
A.
Yes.
22
Q.
Exhibit 0,
23
have,
24
25
A.
right?
Correct.
4/3/09--------------------~
576
Q.
in 2006 authorizing
A.
On
the Fourth
10
11
12
13
14
15
Q.
Now,
Judge McBrien,
And when
16
17
18
19
estimates?
20
A.
It's rare to
21
carry it out.
22
23
24
25
get as
4/3/09--------------------~
577
remaining issues.
MR.
MURPHY:
Your Honor,
it.
Division 3,
a copy.
but counsel
I would love
to
be complete.
MR. MURPHY:
Okay.
MURPHY:
Sorry,
MR.
21
22
book.
23
BY MR. MURPHY:
Q.
Based on Blumenthal,
Your Honor?
20
25
I don't,
18
24
2006.
them.
16
17
may.
14
15
12
13
copy?
10
11
Edward Blumenthal,
8
9
413109--------------------~
578
the
exceeded?
A.
Correct.
Q.
5
6
Well,
first of all,
The "FLEC"?
10
THE WITNESS:
11
12
THE WITNESS:
13
Thank you.
Sorry.
had no real
14
objection to it.
15
16
17
18
19
you have to
20
21
THE WITNESS:
22
24
BY MR. MURPHY:
Q.
Yes.
23
25
in
and
- - - - - - - - - I N RE CJF NC.
185
4!3!09--------------------~
579
A.
Yes.
Q.
Judge McBrien,
A.
Yes,
Q.
6
7
see it.
A.
Well
SPECIAL MASTER CORNELL:
referring to here?
10
MR. MURPHY:
11
12
Yes.
I
13
MR. MURPHY:
14
THE WITNESS:
15
MR. MURPHY:
Right.
I think
But I
want an explanation of
16
17
18
19
20
THE WITNESS:
It's mitigation.
regarding it.
21
22
THE WITNESS:
23
I don't think
would be here,
Go ahead.
24
MR. MURPHY:
Okay.
25
580
THE WITNESS:
and
personally
law.
~-
but
it
10
11
12
13
without a permit.
14
15
16
misdemeanor.
17
18
19
I pled no contest to a
20
judges' meeting,
21
22
23
24
BY MR. MURPHY:
25
Q.
4/3/09----------------------~
581
A.
It was.
the backyard,
came from the crotch of that flat land versus the down
I and.
10
which
11
little white jeep with the man in the white came and
12
13
14
at it.
15
16
17
He said if,
Q.
18
and the
- to
in fact,
Judge McBrien,
It was
19
20
21
22
24
25
I did.
MR.
23
have.
at
MURPHY:
Thank you.
SPECIAL MASTER CORNELL:
Mr.
Blum?
185 - 4/3/09
582
MR.
1
2
Judge.
THE WITNESS:
MR.
Thank you.
MURPHY:
right hand.
---000--
10
11
BLUM:
ROBERT O'HAIR
having been first duly sworn,
testified as follows:
12
---000--
13
14
sir.
15
name.
16
THE WITNESS:
17
18
19
MR. MURPHY:
20
DIR!~CT
21
BY MR. MURPHY:
Robert J. O'Hair,
Thank you,
O'H a-i r.
Thank you.
Your Honor.
EXAMINATION
22
Q.
Good morning,
23
A.
Good morning.
24
Q.
25
A.
I'm an attorney,
Mr. O'Hair.
family law
583
Q.
A.
U.C.
3
4
Berkeley,
communications,
J.D.
in 1977.
State of California?
A.
Either '77,
Q.
early '70s.
early '78.
have you been
A.
Yes,
10
Q.
11
A.
Family law.
12
Q.
13
I have.
area?
14
A.
15
Q.
16
'82.
17
A.
Ye s
18
Q.
19
A.
Ye s.
am.
20
21
22
to me.
Excuse me.
Could you
Yes.
23
THE WITNESS:
24
25
MR. MURPHY:
Actually,
L . . . - - - - - - - - - - - - - J N RE CJF NO.
185
Thank you.
Mr.
O'Hair,
it's
4/3/09
584
pr
er
2
can hear you rather than me.
THE WITNESS:
4
BY MR.
Q.
Okay.
MURPHY:
Have you held any positions with the
6
Sacramento County Bar Association?
A.
Yes,
Q.
A.
10
First time,
11
have.
about
2
on the board,
'89 to
'94,
And while
3
from treasurer/secretary,
chair,
past chair.
done that,
15
16
17
18
19
20
'80s.
guess.
I've
14
21
So I've
22
23
California?
24
A.
Yes,
25
Q.
am.
L - - - - - - - - - - - - - - I N RE CJF NO.
185
4/3/09-----------------~
585
A.
Since 1985,
Q.
think.
A.
Yes,
Q.
it does.
A.
Yes.
Q.
law bar?
10
A.
11
Q.
Okay.
12
A.
13
14
yes.
Q.
15
committee,
16
17
McBrien?
18
A.
Yes.
19
Q.
20
A.
Well,
as I
indicated,
21
22
mid
23
24
25
it's
'90s,
And the
once every
And I believe
~------------------------IN
But
4/3/09--------------------~
586
was on
rs
oar ,
ge
r en came
the
committee,
10
11
12
13
through 2000,
And
guess joint
five or six
years.
Q.
14
15
16
to -- you know,
17
things.
18
19
right now.
20
21
22
23
Q.
you know,
work on calendars.
This committee,
you know,
We
'90s.
the liaison
24
A.
Yes.
25
Q.
413109----------------------~
587
2
involvement with that committee?
3
A.
Yes,
Q.
5
committee,
I have.
6
improvement of family law in Sacramento County?
A.
Yes,
8
active judges,
9
I would.
compared to
Q.
Now,
have you
1
appeared before Judge McBrien?
12
A.
Yes.
13
Q.
14
A.
Yes.
15
Q.
16
A.
Trials?
17
18
Hearings -
19
I mean,
20
track.
21
Q.
two or three,
probably
trials a year.
I don't know.
I lost
22
Judge McBrien,
23
judge?
24
A.
Absolutely.
25
Q.
Patient?
~------------------------rN
RE CJF NO.
185
4/3/09
588
Q.
A.
Yes.
Q.
Courteous to counsel?
A.
Yes.
Q.
A.
Yes.
Q.
Hard working?
A.
Yes.
I mean,
yeah.
11
12
13
14
15
16
Q.
Have
10
or in your
17
18
before him?
19
A.
Unfortunately,
20
22
Q.
Some of my biggest
23
24
25
A.
Yes,
I would.
413109--------------------~
589
MR. MURPHY:
have.
Thank you.
MR.
BLUM:
No
excused?
MR. MURPHY:
MR.
10
11
MR. MURPHY:
12
BLUM:
Yes.
Yes.
Thank you very much.
right hand.
14
---000--
15
CAMILLE HEMMER
16
du~y
17
sworn, testified as
19
THE WITNESS:
20
Thank you.
THE WITNESS:
22
23
fo~~ows:
---000--
18
21
Blum?
estions.
13
Mr.
Hemmer,
H e-m-m-e-r.
24
25
~----------------------IN
Thank you.
413109--------------------~
590
DIRECT EXAMINATION
BY MR. MURPHY:
Good morning,
Ms.
Hemmer.
My name is Jim
Q.
Murphy.
A.
No.
Q.
A.
Q.
10
A.
In 1984.
11
Q.
12
background?
13
A.
have we?
remember,
anyway.
law?
14
15
Q.
16
(sic),
17
A.
18
Q.
ecialist
19
20
State of California?
21
A.
22
Q.
23
A.
am.
24
25
date.
think
L - - - - - - - - - - - - - - I N RE CJF NO.
185
413109-------------------~
591
Q.
time?
A.
Yes.
Q.
right?
A.
That's my understanding,
Q.
10
yes.
examination?
11
A.
Yes.
12
Q.
13
A.
Correct.
14
Q.
In other words,
right?
15
16
certification;
correct?
17
A.
Yes.
18
Q.
19
Association?
20
A.
21
Q.
22
am.
23
A.
Yes,
24
Q.
25
am.
particular section?
4/3/09
592
chair,
and I
Q.
A.
It is.
Q.
you not?
A.
That's correct.
10
Q.
Now,
Carlsson case,
did
have you
11
12
13
A.
Yes.
14
Q.
15
16
A.
17
meetings together.
18
basis.
19
20
21
22
23
fact,
24
25
When I
Q.
think we have.
And we meet
And in
4/3/09--------------------~
593
A.
Yes.
Q.
Judge McBrien?
A.
Yes.
Q.
A.
You know,
question.
recall.
10
Q.
1]
I honestly don't
12
A.
Q.
14
A.
Oh.
15
Q.
6
17
law,
40.
courtroom demeanor?
18
A.
I have.
Q.
20
A.
Yes.
21
Q.
Dignified?
22
A.
Yes.
23
Q.
24
A.
Yes.
25
Q.
In my experience,
~~~~~--------~~~--IN
he is.
413109--------~~--~~~~~
594
Q.
In your opinion,
A.
Yes,
Q.
A good judge?
A.
Yes.
Q.
10
I would.
assignment to?
11
A.
have,
and I would.
12
MR.
13
14
Mr.
MURPHY:
Thank you.
have.
Any questions,
Blum?
15
MR.
16
17
That's all I
BLUM:
No,
Your Honor.
May this witness be
excused?
18
MR.
MURPHY:
19
MR.
BLUM:
20
21
MR. MURPHY:
could I check;
Yes,
Your Honor.
Yes.
Your Honor,
22
23
24
here,
25
I'm
is here or not.
If he's not
L - . - - - - - - - - - - - - - I N RE CJF NO.
185 -
Blum has
4/3/09-----
~------1
595
1
2
3
MR.
MR. MURPHY:
7
8
MURPHY:
Thank you.
10
(Pause in proceedings.)
11
MR.
12
13
14
15
MURPHY:
17
THOMAS RUSSELL
20
21
22
23
ng.
---000--
19
We'll
16
18
clever.
testified as follows:
---000--
Please state your full name and spell your last name.
THE WITNESS:
Junior.
R u-s-s-e 1-1.
24
25
L-------~------IN
RE CJF NO.
185
Thank you.
413109-------------------~
596
DIRECT EXAMINATION
BY MR. MURPHY:
Q.
Good morning,
Mr.
Russell.
represent
Judge McBrien.
A.
Yes,
Q.
A.
Q.
sir.
I
10
A.
35 years.
11
Q.
What,
12
13
generally speaking,
lS
the nature of
14
15
16
17
18
Q.
and I
do you work
19
20
department?
21
A.
Yes,
22
Q.
sir.
23
24
25
A.
Yes,
sir.
4/3/09 - - - - - - - - - - - - '
597
2
3
Q.
relationship?
A.
cases,
experience.
Q.
9
10
12
MR. MURPHY:
14
or domestic
11
13
where there's
I'm sorry,
sir.
15
relationship,
16
in a courtroom environment?
17
A.
Yes,
Slr.
18
Q.
19
20
patient?
that,
in a courtroom,
21
A.
Very patient.
22
Q.
23
A.
Yes,
24
Q.
25
A.
Yes,
he's
sir.
sir.
598
Q.
A.
Yes,
Q.
A.
sir.
him?
before him.
Q.
10
A.
Yes.
11
Q.
12
A.
Absolutely.
13
Q.
Has he demonstrated,
14
has he been
to you at least,
15
A.
Yes.
16
Q.
17
18
19
20
A.
21
22
23
24
25
as a
Absolutely.
MR.
have.
would you,
MURPHY:
Thank you.
SPECIAL MASTER CORNELL:
How many t
shave
approximately?
Probably 40 to
413109--------------------~
599
custody matters?
THE WITNESS:
question,
No.
10
11
THE WITNESS:
12
13
14
MR.
15
MR. MURPHY:
16
17
BLUM:
No,
Thank you.
Mr.
Blum?
Your Honor.
Thank you,
Mr.
Russell.
excused?
MR. MURPHY:
19
MR.
20
BLUM:
Russell.
Yes,
23
witness stand.
24
oath.
Your Honor.
Yes.
Thank you,
You're excused.
Judge McBrien,
22
25
as a mediator?
No.
18
21
understand your
sir.
SPECIAL MASTER CORNELL:
when
Mr.
Blum.
4/3/09--------------------~
600
MH..
Thank you,
BLUl'1:
Your Honor.
---000--
hav~ng
been
prev~ous1y
sworn,
test~f~ed
as f0110ws:
---000--
CROSS-EXAMINATION
BY MR. BLUM:
Q.
Good morning,
A.
Good morning.
10
Q.
Your Honor.
11
12
Examiner's 21?
which is
13
A.
Yes.
14
Q.
15
16
17
Just
third paragraph,
you
18
A.
Yes.
19
Q.
20
21
A.
It is.
22
Q.
23
segregating it
24
25
A.
L-----~-----------------IN
4/3/09--------------------~
601
Q.
weren't you,
Ms.
ended;
correct?
Correct.
8
9
Yes.
THE WITNESS:
11
13
Is getting a
14
15
10
that at least
A.
when
BY MR.
Yes.
BLUM:
16
Q.
17
A.
Very often.
18
Q.
19
20
21
jurisdiction.
22
or
23
24
ex wife?
25
A.
That's
Ulf Carlsson
Correct.
~------------------------IN
4/3/09--------------------~
602
Q.
Again,
same lssue:
decision,
correct?
A.
Correct.
Q.
MR.
11
please turn
to Exhibit 18.
10
well,
Q.
BLUM:
Yes,
18?
18.
12
13
14
15
16
17
Correct?
18
A.
Correct.
19
Q.
20
21
A.
22
Q.
23
A.
Yes.
24
Q.
25
A.
Yes.
which lS Exhibit L?
do.
IN RE CJF NO.
185
4/3/09
603
Q.
attorneys?
A.
Correct.
Q.
A.
The main
issue basically.
Huddle represented the father?
Q.
Ms.
A.
She did.
10
Q.
11
A.
It was.
12
Q.
13
A.
He was.
14
Q.
15
excuse me,
16
A.
Apparently.
17
Q.
18
19
A.
20
it 3111 or -
21
evaluation by a psychologist.
22
23
24
25
Q.
In the report,
or a 730
A.
' - - - - - - - - - - - - - - I N RE
C~JF
NQ.
185
4/3/09---------------------~
604
quite frankly.
suggested?
A.
don't.
Q.
as you described,
10
parent?
11
A.
Correct.
12
Q.
13
A.
Very fair.
14
Q.
15
A.
John Munsell.
17
Q.
Munsell.
A.
20
21
23
A.
It's possible.
but I
I don't
he's a very
22
25
19
24
Huddle,
16
18
it's
J85 -
4/3/09-------------'
605
A.
That,
Q.
Including videotapes?
A.
I don't know.
4
5
but I didn't.
It's okay.
Huddle?
A.
10
anyone.
11
12
13
Q.
14
recollec ion,
15
by Attorney Huddle?
16
17
A.
to your
I could -- I
Q.
19
A.
Okay.
20
Q.
testimony about
22
A.
Correct.
23
Q.
24
25
do have an
observation though.
18
21
and
or was
4/3/09----------------------~
606
2
3
4
5
Q.
admonishment?
A.
No.
Well,
A.
Presumably.
Q.
Now,
10
wouldn't you
but I
thought you
ordinance
Correct.
11
A.
12
Q.
13
A.
Correct.
14
Q.
15
A.
16
17
felony.
18
Q.
The ordinance?
19
A.
Well,
20
Q.
21
22
ordinance?
23
A.
Correct.
24
Q.
25
A.
Correct.
L - - - - - - - - - - - - - I N RE CJF NO.
not a county
185 - 4 / 3 / 0 9 - - - - - - - - - - - - - '
607
Q.
A.
Correct.
Q.
Section 384(A),
do.
A.
Q.
(Reading)
10
11
12
13
14
15
16
Facts?
A.
understand that.
17
Q.
No,
18
A.
19
20
21
but -- well -
Q.
22
23
24
plural
25
plural
413109--------------------~
608
A.
Q.
Is i t accurate?
A.
Is i t accurate?
call i t a limb,
if you wish to
From my perspective,
A.
--
Q.
fence
10
11
us.
SPECIAL MASTER CORNELL:
12
13
removed?
THE WITNESS:
14
15
mean -- I mean,
16
BY MR.
17
18
One.
It was a
lengthy one.
BLUM:
Q.
Same paragraph,
next sentence:
II
"The trees
Is that correct?
19
A.
20
Q.
Is i t true?
21
A.
22
the land.
23
24
up to the crotch,
25
Q.
And below,
Correct.
was
don't know.
~------------------------IN
4/3/09----------------------~
609
true?
don't -
A.
In what respect?
Q.
Is that true?
A.
The 1
Oak.
says "trees," not "limb."
Q.
A.
Q.
10
A.
11
Q.
12
to be untrue?
A.
13
14
15
accepted it.
16
Q.
and I
17
18
true?
19
20
A.
in fact,
You're referring to
23
THE WITNESS:
24
25
what,
happened.
SPECIAL MASTER ANDLER:
21
22
Correct.
Your plea of no
contest?
I . . . - - - - - - - - - - - - - I N RE CJF NO.
185 -
4/3/09------------'
610
5
6
I think it might
Yes.
THE WITNESS:
BY MR.
BLUM:
Q.
A.
Q.
Well,
9
10
11
12
13
Okay.
A.
Well,
A.
15
Q.
restitution?
17
A.
Correct.
18
Q.
19
A.
Correct
- no.
20
measured,
21
And as I indicated,
22
23
then why
14
16
That's
apparently,
It was a limb.
It was
24
(Recess taken.)
25
We're back in
4/3/09--------------------~
611
Mr.
Blum,
MR.
BLUM:
in the
Yes.
questions.
Q.
A.
Correct.
Q.
10
11
12
13
residence."
Is that the reason the trees,
14
15
or limb,
were
cut?
16
A.
17
Q.
18
A.
19
20
21
22
benefit,
Q.
purposes?
IL
23
feet in length.
24
25
185 - 4 / 3 / 0 9 - - - - - - - - - - - - - "
MR.
REDIRECT EXAMINATION
BY MR. MURPHY:
A.
Judge McBrien,
Q.
BLUM:
Q.
10
A.
They do.
11
Q.
12
explain
13
A.
14
Q.
15
A.
That is.
16
Q.
17
A.
We did.
18
Q.
19
A.
Correct.
20
21
Correct.
what you did?
MR. MURPHY:
have.
Thank you.
22
23
MR.
24
25
THE WITNESS.:
BLUM:
Mr.
Blum?
No questions.
I have some.
Okay.
4/3/09-------------"
613
EXAMINATION
Q.
submission?
A.
6
7
trial,
Q.
I did.
I mean,
understand that.
What
10
A.
That's correct.
11
Q.
So formally,
12
submission?
13
A.
That is correct.
14
Q.
15
16
If,
in fact,
17
18
19
20
21
Q.
And frequently,
I mean,
I would indicate
and I would
22
11'\
Often.
23
Q.
Do you ever
24
trial,
25
413109--------------------~
614
A.
in fact,
Q.
necessary?
A.
Well,
because if,
in fact,
they engage in
that stipulation,
10
11
Q.
position
12
A.
13
Q.
14
A.
15
16
17
18
case,
19
20
21
would be successful.
22
Q.
can't tell
recognize that -
23
24
25
A.
4/3/09--------------------~
615
1
2
Q.
you
is that correct?
A.
Yes.
Q.
A.
Yes.
Q.
That is,
A.
at times,
the claim.
But I accept
10
11
12
Q.
At the
13
A.
14
a tactic.
15
to claim,
16
table and,
17
18
19
Q.
"Well,
you know,
Frequently,
20
A.
Right.
21
Q.
Did you,
22
to you,
23
24
25
A.
at the t
consider that
I don't believe I
do have a
413109--------------------~
616
for
Q.
A.
At the t
But I
that.
County that I
from.
Any
Okay.
questions?
10
EXAMINATION
11
12
13
If you
Q.
purposes?
14
A.
15
Q.
16
A.
17
Q.
18
A.
19
Q.
was.
on the case?
was.
were
20
21
22
A.
23
available,
24
25
department.
heard -- normally I
rs?
would.
If I
were
were unavailable,
If
4/3/09--------------------~
617
2
3
Q.
recall that I
before involving a
ordering Ms.
employment.
8
9
10
11
12
13
Q.
namely
ly residence?
don't recall a
Q.
14
15
the trial?
16
A.
17
18
Yes.
SPECIAL MASTER ANDLER:
Thank you.
Those are
my all my questions.
SPECIAL MASTER DE BELLEFEUILLE:
19
would like
20
21
department's system,
22
THE WITNESS:
if you would.
Sure.
23
EXAMINATION
24
25
Q.
185 -- 4 / 3 / 0 9 - - - - - - - - - - - - '
618
A.
Now?
Q.
Now.
A.
A.
We do.
Q.
In 2006,
10
11
A.
12
been three,
13
was,
14
15
believe,
And one
Q.
A.
you?
16
17
during Monday/Tuesday/Wednesday.
18
19
Q.
20
four
21
22
A.
Right.
23
Q.
24
A.
Correct.
25
Q.
4/3/09----------------------~
619
1
2
department.
frankly,
mornings.
settle,
10
11
For instance,
in my department,
probably
And so If
when we're
bigger, more
12
13
Monday,
14
A.
15
Tuesday or Wednesday?
There sometimes is on Tuesday afternoons or
16
Q.
17
lunch hour?
18
A.
I would.
19
Q.
20
have.
in the Year 2000,
21
A.
22
Q.
2006.
23
A.
Pardon me.
and I couldn't tell you if
24
25
~------------------------IN
you know,
4/3/09----------------------~
or s
Q.
A.
attorneys,
10
Thank you.
11
12
question.
13
14
15
priority,
16
17
the time or -
18
THE WITNESS:
19
20
THE WITNESS:
Pardon me?
No.
Rental?
It was the
21
22
23
24
25
And
4/3/Q9~~------------~~--~
621
THE WITNESS:
It was.
Mr.
BY MR.
It was.
Thank you.
Anything else,
Murphy?
MURPHY:
Q.
the bench?
10
A.
I've estimated
11
Q.
Trials.
12
A.
13
40,000.
14
well,
15
MR.
16
THE WITNESS:
17
18
MR.
MURPHY:
BLUM:
Thank you.
Mr.
Blum?
19
20
FURTHER CROSS-EXAMINATION
21
BY MR.
22
cases or trials?
BLUM:
Q.
23
24
25
A.
if they
if,
are
with their
RE CJF NO . .1 85 - 4 / 3 / 0 9 - - - - - - - - - - - - - '
622
time,
yes.
Q.
Yes.
Q.
trial"?
A.
calendar.
10
Q.
In other words,
11
A.
It has been.
12
13
MR.
MURPHY:
14
THE WITNESS:
15
MR.
16
MURPHY:
right?
It is.
Thank you.
17
18
copy of yet;
19
i t ' s the
And that's
is that true?
THE WITNESS:
20
than anything.
21
22
I don't know.
23
24
MR.
25
BLUM:
No,
Anything else?
Your Honor.
4/3/09--------------------~
623
of this witness?
MR. MURPHY:
case,
own retrials,
No,
Your Honor.
THE WITNESS:
MR. MURPHY:
Generally.
Thank you.
You may step down.
Respondent rests.
Anything else,
Blum?
12
MR.
13
14
generally speaking?
11
If you miss-try a
10
BLUM:
No,
Your Honor.
Okay.
From my understanding,
16
17
18
Yes,
Madam Court
sir.
THE REPORTER:
21
24
BLUM:
Is that correct?
23
25
Reporter.
20
22
Let's talk
15
19
We rest.
Correct.
Which would take you
~-----------------------IN
4/3/09--------------------~
624
transcript.
May 29,
to take place
to be Friday,
MURPHY:
Your Honor.
10
11
May 18.
12
13
14
15
16
17
18
Well,
20-day trial.
SPECIAL MASTER CORNELL:
19
But if not,
20
21
22
MR. MURPHY:
23
24
25
and I
Would it be
Friday morning.
Mr.
Blum,
any
4/3/09--------------------~
625
MR.
BLUM:
No,
Your Honor.
That date is
2
fine.
So we 11 schedule
contemporaneously,
on May 17.
or
6
And oral argument will be scheduled for 9:00 a.m.
7
May 29 at the Ninth Circuit,
on
8
to be set up by notice from the Commission.
MR. MURPHY:
10
1
12
The notice
13
MR.
14
15
MURPHY:
Okay.
Masters.)
SPECIAL MASTER CORNELL:
16
17
18
19
have
MURPHY:
20
MR.
21
22
Yes,
Your Honor.
-- so we can receive
23
MR.
24
25
BLUM:
Certainly.
Is there anything
I believe all the
413109--------------------~
626
to-
MR.
BLUM:
MR. MURPHY:
Oh,
with the
that.
Actually,
Mr.
Blum and I
have
10
11
exhibit,
12
13
14
MR.
BLUM:
15
MR.
MURPHY:
16
17
18
much,
No,
And I
believe
Anything else
Your Honor.
No,
Your Honor.
Thank you all very
11:29 a.m.)
19
20
21
22
23
24
25
- - - - - - - - - - I N RE CtJF NO.
185
4/3/09--------------------~
627
STATE OF CALIFORNIA
ss.
reported by me,
10
11
12
13
14
15
16
17
18
hand
__ ~ __L]____ ,
2009.
----~--~----
19
SANDRA LEHANE,
20
STATE OF CALIFORNIA
C.S.R.
7372
21
22
23
24
25
L------------------------IN RE CJF NO. 185 - 4/3/09
628
INDEX
PAGE
WITNESSES:
4
5
MICHAEL GARCIA
DIRECT EXAMINATION
531
7
8
541
561
10
11
DIRECT EXAMINATION
12
CROSS EXAMINATION
13
614
14
617
15
EXAMINATION BY
16
(BY MR.
BLUM)
17
RE DIRECT EXAMINATION
18
RE-CROSS EXAMINATION
601
618
613,
BLUM)
622
583
591
622
19
20
21
ROBERT O'HAIR
DIRECT EXAMINATION
22
23
24
CAMILLE HEMMER
DIRECT EXAMINATION
25
' - - - - - - - - - - - - - - I N RE CJF NO.
185
4/3/09-----------.1
629
WITNESSES
(CONTINUED):
3
4
THOMAS RUSSELL
DIRECT EXAMINATION
597
5
6
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
L - - - - - - - - - - - I N RE CJF NO.
185
4/3/09-----------.....l
630