CJP 1 85 Oral Argument

Page 1 COMMISSION ON JUDICIAL PERFORMANCE

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INQUIRY CONCERNING JUDGE PETER 1. McBRIEN CJP NO. 185 -------- ---------------------------1

TRANSCRIPT OF THE ORAL ARGUMENT BEFORE SPECIAL MASTERS

SAN FRANCISCO, CALIFORNIA MAY 29,2009

REPORTED BY: SANDRA LEHANE REGISTERED PROFESSIONAL REPORTER

CERTIFIED SHORTHAND REPORTER NO. 7372 155 Orr Road

Alameda, California 94502 (51 0) 864- 9645

1 PARTICIPANTS: 2 3 SPECIAL MASTERS: 4 5 Honorable Dennis A. Cornell

6 Associate Justice 7 Court of Appeal, Fifth District 8 9 Honorable Gail A. Andler

1 o Superior Court of Orange County II 12 Honorable Denise de Bellefeuille

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13 Superior Court of Santa Barbara County 14 15 Respondent's Counsel: 16 James A. Murphy, Esq. 17 18 Examiner:

19 Andrew Blum, Esq. 20

21 22 23 24 25

I MAY 29, 2009 2 ---oOo---

Page 3 9:00A.M.

3 SPECIAL MASTER CORNELL: Good morning. We're 4 on record in the matter of the Inquiry Concerning 5 Judge Peter McBrien, No. 185. I note that

6 Judge McBrien is present, with counsel, as is 7 Mr. Blum. This is the time set for oral 8 presentations. 9 We are fully familiar with the facts of the

I 0 case and the exhibits and transcripts. We're fully II familiar with the briefs that you filed. So please 12 keep that in mind when you're making your 13 presentations. All of us view this as an opportunity

14 to ask you questions concerning the positions you've 15 taken, so expect questions from the panel. And also, 16 because of all of this, we expect you to be brief and 17 to the point in your presentations. 18 So with that in mind, Mr. Blum, you go first.

19 MR. BLUM: Thank you, Your Honor. 20 ---oOo---

21 ORAL ARGUMENT BY EXAMINER 22 MR. BLUM: Good morning. There really isn't 23 a lot of factual dispute in this case. The 24 transcripts and the court records make it pretty clear 25 what happened.

Judge McBrien left the Carlsson trial with a 2 witness on the stand, and he didn't return. The

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3 bigger question is: Why did he do that? Now, the 4 case was coming up on its two-day estimate. But as we 5 heard, that's not all that unusual, for a case to take

6 a little bit longer than estimated. Brief extensions 7 of time are typically given. In fact, they have a 8 system that specially set them on a 9 Monday/Tuesday/Wednesday if they didn't finish on a

10 Thursday/Friday. Estimates are, after all, just I I estimates. It's hard to predict exactly how long a 12 trial will take. And unexpected issues can arise, as 13 happened in the Carlsson case. 14 But from the beginning, Judge McBrien seemed 15 to be impatient with this trial. At first he wanted 16 it over not in two days but in a day and a half. And 17 he actually threatened a mistrial if it wasn't 18 finished by then. Both attorneys took his threats, or

19 warnings, very seriously. Neither wanted a mistrial. 20 So why did he end the trial the way he did?

21 Well, he has given varied and sometimes 22 contradictory explanations for his actions. ln his

23 response, he said it was very likely that the EPO, the 24 Emergency Protective Order, phone call was lengthy and 25 complicated and apparently prevented him from

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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. Page 6

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 Page 1 1

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

Page 10 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

20 occurred. 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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Page 13 I checks, and there was the impact of selling the house 2 on the child. So those are some concrete examples. 3 Anyway, even though Ms. Huddle explained as 4 he was leaving that there was more evidence and 5 restated it in her closing argument, he argues that, 6 "Well, that's not good enough. She didn't ask for 7 more time." Now, first of all, that claim contradicts 8 what he said at his deposition, where he said that he 9 had offered them more time. But more specifically, I

10 ask d him, "Do you always cut off trials right at the I I moment they reach the estimate?" And he said no. 12 "No." Typically, he would have tried to determine I 3 what more evidence and what more time was needed. But 14 now the line of argument is that, "No, I don't do

I 5 that. They have to initiate it." I 6 Secondly --17 SPECIAL MASTER CORNELL: So this was a 18 one-time event, as far as you know? 19 MR. BLUM: I don't think he's ever ended a 20 trial like this. 2 I SPECIAL MASTER CORNELL: Is that significant? 22 MR. BLUM: Certainly. If this was a pattern, 23 if he'd done this multiple times, that would be more 24 aggravated. 25 Also, this line of argument is -- to put it

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Page 15 I that something more is needed? 2 Hypothetically speaking: You're in a 3 criminal case. l assume that you would agree that if 4 somebody is representing a criminal defendant and it 5 occurs to the judge that there is something happening 6 that might impact due process, the judge has an 7 obligation to take affirmative steps to prevent that 8 from happening. Agreed? 9 MR. BLUM: Agreed.

10 SPECIAL MASTER ANDLER: Is there a difference II in a family law case where you've got an advocate on 12 each side? 13 MR. BLUM: I think that in all cases the I 4 judge is obligated to protect due process rights. And I 5 to say that "there's nothing I can do because she 16 didn't say 'I need time,"' especially in the context 1 7 of what had happened, l think is very improper. She 18 had been told, "There's no more evidence; you can't do

I 9 that," and yet he still is putting on her that "she 20 didn't say 'time,' so there's nothing I can do; so I 2 1 have to basically sit here and watch due process 22 rights be violated" No, I think that's 23 inappropriate. 24 SPECIAL MASTER ANDLER: Would your answer be 25 the same if it were a civil case--

Page 16 I on Huddle. After the judge has declared the trial has I MR . BLUM: Yes. 2 ended and walks away, and then the next morning 2 SPECIAL MASTER ANDLER: -or a probate case?

MR . BLUM: Yes, it would. 3 Ms. Huddle gets instructions that this trial is deemed 3 4 over and no further testimony will be allowed, it's 4 SPECIAL MASTER ANDLER: Okay. So you draw no 5 pretty hard to expect her to think that she could 6 still ask for more time. 7 Now, this policy that we're told about isn't 8 a rule of court or a local rule. It's a practice or a 9 culture. as they described it. But it doesn't

I 0 override the judge's obligation to protect due process I I rights. I asked Judge McBrien if it concerned him 12 that he was making a decision in a situation where the .13 attorney had said there was additional evidence to 14 introduce, evidence which he admitted would have been 15 relevant. His answer was, "Yes, but she offered no 16 remedy; she didn't ask for more time, so there really 17 wasn't a Jot l could do." That's the current line of I 8 defense here. Forget about the other arguments, the 1 9 EPO and, "yes, I offered them more time, but I was 20 basically kind of helpless." 2 1 SPECIAL MASTER ANDLER: Does the judge have a 22 different obligation in a criminal case as opposed to 23 a family law case to interject in a way to make sure 24 the due process rights of a party are being protected 25 even in the absence of an assertion by the attorney

5 distinction because of the nature of this proceeding? 6 MR. BLUM: I don't know that the courts have. 7 As I stand here, I can't honestly tell you if the 8 Appellate Courts have done that. I don't believe so. 9 In civil cases -- anyone appearing before the Court

I 0 has due process rights. I don't know that the I I Appellate Court in this decision made that 12 distinction. 13 Anyway, none of these claims justifY him 14 walking out with a witness on the stand, declaring the 15 trial has ended or failing to go back to the courtroom 1 6 afterwards, as we just discussed. His explanation for 1 7 not going back is fairly weak. He says, "Well, the 18 attorneys needed some time to meet and confer." He is 1 9 speclating about that. He didn't attempt to go back 20 and see what was going on. And this was a fairly 2 1 routine dissolution case. There's no reason he 22 couldn't have gone back and, with the attorneys, 23 figured out how much more time was needed or if any 24 time was needed. 25 He should have- obviously what he should

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Page 17 I have done is called a recess, taken the phone call and 2 retumed a few minutes later. He told us that these 3 calls typically take only three to five minutes. He 4 had no reason to believe this one was going to be 5 lengthy. But like I said, he was impatient about this 6 case from the beginning. And I don't know if it's 7 because he doesn't like the lawyer, didn't like 8 Mr. Carisson, thought the attomeys were kind of 9 dragging it out. I don't know what it was. But for

I 0 some reason, he wanted this case over. 1 1 SPECIAL MASTER CORNELL Well, to get to 12 willful misconduct, don't you have to prove by clear 13 and convincing evidence some of the very animus you 14 just described? 15 MR. MURPHY: I have to prove that this was 16 done for other than faithful execution of his duties, 17 and I think that's clear. 1 8 SPECIAL MASTER CORNELL But for a bad faith 19 component, that's the animus I was talking about.

20 MR. BLUM: Right.

Page 19 I percent. 2 SPECIAL MASTER CORNELL: So it's our job to 3 determine whether the circumstances reflect that 4 animus? 5 MR. BLUM: I think so, yes. 6 Anyway, he wanted this case over, and the 7 phone call coming when it did was just an excuse. His 8 attitude seems to have been "I've heard enough; I've 9 got a call; I'm out ofhere. Trial is over." And

1 0 within a few minutes, he's out the door, calling home, II leaving the parties sitting there wondering what's 12 going on. The court staff and everybody else. 13 Then he compounds the problem. And this is 14 part of the evidence here. It's not just the walking 15 out and not going back two minutes later. He 1 6 compounds the problem by making his decision despite 1 7 Ms. Huddle's pleas, despite knowing there was relevant 1 8 evidence he hadn't heard and despite the obvious 1 9 problems with the way he ended the triaL 20 SPECIAL MASTER ANDLER: You said one of his

2 1 SPECIAL MASTER CORNELL You just described 2 1 options would have been to exclude evidence; that that 22 you don't know if these were the reasons. 23 MR. BLUM: Well--24 SPECIAL MASTER CORNELL: Does that kind of 25 cut across the burden that you have to get to willful

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1 misconduct? 2 MR. BLUM : I don't believe so. I don't think 3 I have to prove that it was that he didn't like the 4 lawyer or he didn't like the Defendant/Respondent. I 5 don't think I have to prove that. I think I have to 6 prove that what he did, ending the trial the way he 7 did and not coming back, was done for other than 8 faithful execution of his duties. I think it was done 9 because he was just tired of the case. He'd heard

10 enough, and he didn't care anymore. He didn't care 1 1 about the due process rights. 12 SPECIAL MASTER CORNELL: So what you're 13 saying, then, it's a strict liability standard? That 14 if somebody walks off the bench in that manner, then 1 5 it's bad faith per se? 1 6 MR. BLU M : I wouldn't call it strict 1 7 liability. I would look at the entire circumstances 1 8 here. 19 SPECIAL MASTER CORNELL: So that's where

20 you're going back to you don't know if he disliked the 2 1 lawyer or Mr. Carlsson or was frustrated with the time 22 it was taking? 23 MR. BLUM : I think it's probably a 24 combination of all of them. But I can't sit here and 25 tell you it's this one 80 percent and that one 20

22 could have been permissible. So let's say, 23 hypothetically, he carne back in after two minutes and 24 said, "Ms. Huddle, what else do you have," and she 25 said, "Well, I want to fmish the testimony of my

I client on these issues," and he said, "Excluded"; "I 2 want to put in these records," and he said,

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3 "Excluded." Would that have been better than the way 4 the facts show he terminated the proceeding? 5 MR. BLUM: Certainly. 6 SPECIAL MASTER ANDLER: Would that have been 7 something that rises to the level of a disciplinary 8 proceeding, assuming an appellate decision saying that 9 was wrong?

1 0 MR. BLUM: Well, I guess it would depend on 1 1 the reason why it was wrong. We're doing such a 1 2 hypothetical here, I don't know why he's making the 13 rulings you're describing. 1 4 SPECIAL MASTER ANDLER: Well, you said he had 1 5 options. One of his options was to have excluded the 1 6 evidence. So I'm just asking you to take it the next 1 7 step. He comes back out and he excludes the evidence. 1 8 What then, if he had the same net result? 1 9 MR. BLUM: Well, if he's told-- he hears 20 what the offer of proof is and rules that it's 2 1 irrelevant or cumulative, that's within his discretion 22 to make that decision. Now, an appellate court may 23 rule that you abused your discretion. Is that kind of 24 the hypothetical? But abuse of discretion, making a 25 bad decision, isn't necessarily misconduct. We don't

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I generally allege misconduct because you made a wrong 2 under-the-Jaw decision. I mean, judges are entitled 3 to make wrong decisions. They can't have us breathing 4 down their necks like that. 5 Obviously that's not what happened here, but 6 I think that would be certainly a closer call. And 7 you would have to look at the individual facts. At a 8 hypothetical level, it's a little difficult to pin 9 down, but-- yeah.

10 SPEGAL MASTER ANDLER: Thank you. II MR. BLUM: Anyway, between the time he walked 12 out and the time he issued his ruling, he had plenty 13 of time to reflect on the situation and to correct it. 14 B ut he didn't do that. As the Court of Appeal found, 15 Judge McBrien did not allow the parties their full 1 6 opportunity to be heard. That's what the Commission 17 has alleged, and it's pretty clearly true. He ended 18 the tria I the way he did not for the faithful 19 discharge of his duties but because he felt he heard 20 enough and he wasn't concerned about their rights. 21 That's bad faith, and that's willful misconduct. 22 The second allegation has to do with 23 Judge McBrien's threatening Ms. Huddle with contempt. 24 I think there are two questions to ask in this 25 allegation. Why did e want the documents? And then,

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I why did he threaten her? In his response he said, 2 among other things, those documents would be relevant 3 to the fai market value and gross rental income of 4 the II ur-plcx. But we saw that really wasn't true. 5 Nothing in the documents would clarifY whether the 6 four-plex was worth 610,000 versus 650,000. And there 7 was no dispute about the rental. And he even admitted 8 at the deposition that he really had no recollection 9 if that was something that was on his mind.

10 J\t the deposition and then later at our II hearing, he claimed that he thought that FPPC might be 12 able to, quote, "put a lien on or otherwise take the 13 property," unquote. Now, that was the first time we 14 heard that rather novel theory. He admits he's never 15 heard of that happening, and he now knows they can't 16 do it. Well, 1 mean, of course not. If you violate 17 disclosure rules, you don't lose the property. The 18 FPPC doesn't acquire interest in real estate. 19 But in his letter, he gave a third 20 explanation for why he wanted the documents. He was 21 faced with the disclosure of possible criminal 22 activity. This is the plausible one of his 23 explanations. He wanted the documents because he was 24 looking for evidence of a crime, and that's why he 25 warned them about the possible "other consequences."

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I So then why did he threaten her with 2 contempt? In his response, he says that he regrets 3 mentioning the possibility of contempt and that he 4 became momentarily inappropriately frustrated with 5 Ms. Huddle's misapplication of the Fifth Amendment. 6 But then in his answer, we got a completely different 7 explanation. He said it wasn't about misapplying the 8 Fifth Amendment; it was about whether or not the 9 Court's order to produce the statement was going to be

10 obeyed. But then at the deposition I asked him, "Was II this a court order?" He said, "No." And he repeated 12 that at the hearing. And he admitted he couldn't find 13 her in contempt since there never was a valid court 14 order here. So apparently the explanation in the 15 verified answer is simply untrue. This was not about 16 enforcing a court order. 17 So why did he threaten her? Well, I think 18 the truth is pretty simple. He got angry at her 19 because she was resisting doing what he wanted.

20 That's pretty close to what he admitted in his 2 1 response, where he says "inappropriately frustrated." 22 Ms. H uddle was not trying to be an obstructionist; she 23 just didn't know this Jaw. She didn't know what to 24 do, and she was trying to keep her client out of 25 trouble. But he used the threat of contempt to

Page 24 I intimidate her into agreeing to get what he wanted, 2 and it worked. She was intimidated. 3 SPECIAL MASTER CORNELL: Mr. Blum, it's not 4 your position that a judge who threatens contempt is 5 guilty of misconduct, is it? Because that's what they 6 are instructed to do in all the various courses, is to 7 elevate the warnings before they do anything 8 seriously. 9 MR. BLUM: The allegation in the notice is

I 0 that the threat of contempt was improper under the II circumstances. 12 SPECIAL MASTER CORNELL: Now, the 13 circumstances that you think make it improper include 14 what? 15 MR. BLUM: Well--16 SPECIAL MASTER CORNELL: Specifically? 17 MR. BLUM: --as--18 SPECIAL MASTER CORNELL: One, you said that 19 they didn't produce the documents. Two, that she was

20 attempting to assert the Fifth Amendment. What else? 21 MR. BLUM: The circumstances are that he is 22 attempting to enforce a nonexistent court order in 23 order to obtain evidence of a crime. 24 SPECIAL MASTER CORNELL: What if the evidence 25 reflects that, when you look at the discussion from

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I the beginning to the end, frustration that occurred 2 because Ms. Huddle did not seem to understand the 3 Fifth Amendment doesn't apply to protect your client 4 from producing records that are public documents, and 5 she was continuing to make that argument even after he 6 explained to her that that was not the issue? So 7 counsel, in essence, was continuing to argue a point 8 that the judge ruled on. Now, isn't that rising to 9 the level where the judge has the right to reign

10 counsel in? 11 MR. BLUM: I don't believe so in these 12 circumstances. She hadn't re-argued the Fifth 13 Amendment. She had said it at lease once or twice, 14 but mostly she first argued the irrelevancy of it. 15 But she's in a situation where she's about to agree to 16 get documents that might incriminate her client. 17 She's in a very, very tough spot. And she's-- the 18 comment that got the threat of contempt was "I don't 19 know what to do. I don't know what to do when you're 20 asking me for documents that they don't want and to 21 gel my client in trouble." He threatens her with 22 contempt. I think it's inappropriate. And contempt 23 of what? There's no order. 24 I think it's an improper purpose to threaten 25 someone with contempt to enforce a nonexistent court

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I order for the purposes of gaining evidence of a crime. 2 The third allegation concerns a partial 3 transcript of Mr. Carlsson's cross-examination 4 testimony. Now, Judge McBrien wanted the transcript 5 not to help him make a decision in the case but 6 because he, quote, "thought he heard the admission of 7 the violation ofFPPC rules, a potential misdemeanor" 8 unquote. In other words, he's looking for evidence of 9 that crime again. Just like with the Statement of

10 Economic Interest, now he's looking for evidence of II that crime with the transcript. 12 At the deposition, he testified that after 13 reading the transcript, he determined that it appeared 14 there was some violation that Mr. Carlsson was 15 admitting. As simple as that. But then in our 16 hearing, he claimed that after he read the transcript, 17 he had no idea whether Mr. Carlsson had done anything 18 improper. In fact, there was virtually no doubt that 19 there had been a violation, a failure to disclose. It 20 was undisputed that the Carlssons owned the property 21 with Mr. Minkoff; that Mr. Minkoff was a State 22 contractor, and Mr. Carlsson freely admitted in his 23 testimony that he hadn't disclosed. He hadn't 24 disclosed the property or his relationship because he 25 didn't think he had to.

Page 27 I SPECIAL MASTER ANDLER: Repeat for me the 2 timeline from the Judge's request for a partial 3 transcript and the completion of the matter after the 4 submission of briefs. 5 MR. BLUM: He apparently first asked for the 6 transcript on March 9, the third day of trial. They 7 were transcribed the next day. 8 SPECIAL MASTER ANDLER: Do you fault him for 9 asking for a transcript or for what he did with it

10 once he got it? II MR. BLUM: The latter. 12 SPECIAL MASTER ANDLER: Okay. 13 MR. BLUM: You can also say that seeking out 14 the transcript goes beyond reporting a crime. It goes 15 actually into investigating a crime. He's seeking out 16 evidence of a crime. He doesn't really need the 17 transcript to report a crime. If that's what he 18 thinks he's obligated to do, he doesn't need the 19 transcript to do that. So it's both. 20 SPECIAL MASTER C O RNELL: What should a judge 21 do in Judge McBrien's position? 22 MR. BLUM: Well, it depends a lot -- first of 23 all, the rules about judges reporting crimes, which is 24 kind of the gist of the question, first of all, it 25 depends a lot on who the violator is. They cite a

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I 1991 CJP case where an advisory was issued. But that 2 was dealing with an attorney who committed misconduct 3 or may have broken the law. Now, the canons of 4 judicial ethics place special reporting requirements 5 on judges regarding attorney misconduct. It's a 6 different animal. There's debate in the legal 7 community about what obligation a judge has when it's 8 a party before them who may have conunitted a crime. 9 And Rothman goes into this at Section 5.68,

10 and they cite CJA opinion-- California Judges II Association --which holds that judges have no more 12 obligation to report crimes of individuals than 13 anybody else. None. In fact, it could arguably be 14 said to be a violation of Canon 3 because you need to 15 be impartial and appear to be impartial with parties 16 before you. And if a judge is instigating or 17 initiating a prosecution of a party before him, 18 arguably it could violate Canon 3. That's the 19 discussion in Rothman. 20 There seems to be some consensus that if a 21 judge is in a situation where he or she is the only 22 person who knows this information, they should 23 probably disclose it to the correct authority. And 24 that was the situation in that older CJP case. That 25 was something the judge learned in confidence in

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Page 2 9 I chambers. That's not the situation here. This was 2 out in a public courtroom, a courtroom full of people. 3 The bailiff is there; these are law enforcement 4 officers. There are parties, litigants. A lot of 5 other people could have reported this. 6 SPECIAL M ASTER CORNELL: Okay. So you've 7 educated me. 8 9

MR. BLUM: Sorry. SPECIAL MASTER CORNELL: Now let me take you

1 0 back to the point where he learns that there may be a I I potential conflict, and that point appears to have 12 occurred in the cross-examination of Mr. Carlsson by 13 Ms. Keeley. I'm taking you back to that point. 14 MR. BLUM: Right. 15 SPECIAL MASTER CORNELL: At that point, what 16 could Judge McBrien have done without violating the 17 canons? 18 M R. BLUM: Well, he wouldn't have to do 19 anything. 20 SPECIAL MASTER CORNELL: I didn't ask that. 21 22

M R. BLUM: I know. I'm prefacing my answer. I think he could have reported that to the

23 FPPC, not to the guy's employer, should not have 24 obtained evidence, not crossed over into 25 investigating. He could report it to FPPC if he

Page 30

1 thinks no one else is going to report it. But then he 2 has to disclose what he's done and why. 3 SPECIAL MASTER CORNELL: Well, even if he 4 thinks somebody else could report it, there is case 5 law indicating a judge should not be considered to 6 have committed misconduct by reporting it. Isn't that 7 correct? 8 MR. BLUM: I don't think we would have 9 considered it misconduct if he had done what I

I 0 described. 11 SPECIAL MASTER CORNELL: Right at the 12 beginning as opposed to what happened after that, 13 which then gets into the investigation part? 14 MR. BLUM: Right. And the timing is an 15 issue. I mean, it's going to be case by case. I f 16 he's learning there's about t o be a n assassination, he 17 better step on it right away. Now, this one he 18 doesn't report to anybody for six months. But there 19 was no compelling need to do it right then, as you're 20 describing. I don't think he would have to do it 2 1 right then in the middle of trial. I think that it 22 would behoove him to wait at least until he's made his 23 decision. But I think he could report it to the FPPC, 24 very simply, matter of factly, not taking sides, not 25 providing evidence, and then put on the record what he

I did. Make it above board so if they want to make a 2 motion, the attorneys, they can.

Page 31

3 SPECIAL MASTER ANDLER: So would it have been 4 a problem for him, after hearing that testimony, to 5 say, "I'm not sure I heard what I thought I heard; 6 give me a partial transcript," and then upon reviewing 7 it, reporting it to the FPPC? Would that have been 8 misconduct? 9 MR. BLUM: Well, I have a l ittle issue with

I 0 getting a transcript because I don't think that was I I necessary. l f he thinks he heard a crime, he can just 12 relay that to the FPPC without getting the document. 13 SPECIAL MASTER DE BELLEFEUILLE: I sn't the 14 transcript the best evidence of the words spoken that 15 formulate the potential crime? Getting a transcript 16 isn't investigating, is it? It's just getting the 17 verbatim record. 18 MR. BLUM: Like 1 said, this is a gray area. 19 I think it's debatable. I think it may cross the 20 line. 2 1 SPECIAL MASTER DE BELLEFEUILLE: But are you 22 suggesting that obtaining the transcript was 23 conducting an investigation? Is that what I heard you 24 say? 25 MR. BLUM: Under these circumstances, I think

Page 32 I it probably was, because I think there was no doubt 2 about what had happened. Mr. Carlsson wasn't beating 3 around the bush. He said, "I didn't disclose this," 4 and there was extensive testimony about what the 5 relationship was and ownership in the property. I 6 think it was crystal clear that this wasn't reported. 7 All he has to do is relay that to the FPPC. 8 SPECIAL MASTER DE BELLEFEUILLE: In the 9 judge's own words? In other words, don't get the

10 transcript, which reveals what Mr. Carlsson did on the I I forrn, but write a letter or put it in the judge's own I 2 words? Or summarize it to the right agency, the FPPC, 13 instead of the employer? Isn't the transcript the 14 best evidence of the crime, if one was committed? 15 MR. BLUM: It is good evidence of the crime, 16 but it's not for the judge to provide evidence of the I 7 crime. It's for the judge to report that there may I 8 have been a violation. 19 SPECIAL MASTER DE BELLEFEUILLE: So, in other

20 words, you're arguing he should have summarized it in 21 a letter rather than providing a transcript? 22 MR. BLUM: Well, he still summarized it on 23 the phone. All he had to do was say, "There may be a 24 violation here. a failure to report; you may want to 25 look at these transcripts."

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Page 33

SPECJAL MASTER DE BELLEFEU1LLE: So if he 2 called the right person, not general counsel for 3 Mr. Carlsson's employer -- if he called the right 4 person and said, "You need to look into this," that 5 would have been okay? 6 M R. BLUM: 1 think that would have been okay, 7 and then come back and put that on the record, what he 8 had done. 9 SPECJAL MASTER DE BELLEFEUILLE: Okay.

10 M R. BLUM : I believe the way he handled this II would appear, to an objective observer, to lower 12 public esteem for the judiciary, the whole process of 13 sending it to the employer and all that. Sending it 14 to the employer, which we briefly mentioned here, it 15 looks vindictive. I t looks like it's -- first of all, 16 it's the wrong person to send it-- the wrong agency 17 to send it to. But it looks like he's trying to get 18 Mr. Carlsson fired or in trouble at work. 19 If you're going to report a crime, you don't 20 just send evidence of the crime to the employer 21 because you happen to know somebody who works there. 22 That's why they chose that. You send it to the 23 enforcement agency. 24 Part of the third allegation is about failure 25 to disclose. And you're familiar with the rules of

Page 34 I disclosure, I'm sure. But under these standards, once 2 he starts obtaining the transcript, reads it, 3 determines that it has evidence of a crime and then 4 sends it to the employer, he needs to disclose this. 5 He needs to disclose what he's done. Put it on the 6 record, explain why. You can state, "I haven't formed 7 an opinion; I think I can be fair," whatever, and let 8 the attorneys decide if they need to make a motion. 9 SPECIAL MASTER CORNELL: You don't believe

I 0 it's a disqualifying event in and of itself? I I MR . BLUM: I think it is. I think he had 12 made a decision. I think --13 SPECIAL MASTER CORNELL: Let's back up. In 14 the abstract, it's not a disqualifying event in and of 15 itself? 16 MR. BLUM : Well, it's not alleged that way in 17 the Notice, so I've only argued fai lure to disclose 18 rather than failure to recuse. The notice only says 19 failure to disclose. 20 SPECIAL MASTER CORNELL: So, in other words, 21 we should deal with what's in front of us? 22 MR. BLUM: Well, I think we have to stick to 23 what's charged. 24 Anyway, certainly once he's done all those 25 steps -- he's taken all those steps, there's no

Page 35 I question the attorneys might reasonably entertain a 2 doubt that he could be fair. So at a minimum, this is 3 prejudicial misconduct. 4 SPECIAL MASTER ANDLER: So you've basically 5 got three prongs to this particular allegation of 6 misconduct. You've got obtaining the transcript, 7 making the phone call, and failing to disclose. Does 8 it stand or fall based on whether you've established 9 all three acts were violations of the canon

10 independently, or is any one of those sufficient for I I us to find a violation? 12 MR. BLUM: The first one is probably the 13 least, just getting the transcript. As we discussed, 14 maybe that's borderline. The other two, I think, are 15 adequate by themselves. And I would add a fourth 16 prong: Sending it to the employer. 17 SPECIAL MASTER CORNELL: Well, getting the 18 transcript here, we've been talking about in the first 19 instance, before the pursuit of the Form 700 and 20 continued pursuit of the transcript after the filing 21 of new motions, doesn't all of that come into play? 22 MR. BLUM: Certainly. 23 The fourth allegation is that Judge McBrien 24 was impatient and discourteous with Sharon Huddle. In 25 making that detennination, the views of the actual

Page 36 I observers are sufficient to establish prejudicial 2 misconduct under the objective observer standard. So 3 what did the actual observers say? Sharon Huddle said 4 that the judge was very impatient with her. 5 SPECIAL MASTER CORNELL: Excuse me. I 6 apologize. I want to go back to the last one for a 7 minute. If I heard you correctly, you said you 8 thought the actions that we have been describing for 9 the last few minutes rise to a level of conduct

10 prejudicial as opposed to intentional m isconduct or II willful misconduct. I s that your position? 12 MR. BLUM: We've argued that it is, at a 13 minimum, prejudicial misconduct. l think it depends 14 on some of your factual findings. For example, if you 15 found that he did send them to the employer for a 16 vindictive purpose, that's obviously bad faith and 17 willful misconduct. 18 SPECIAL MASTER CORNELL: His conferring with 19 two other judges plays into that determination, 20 wouldn't you agree? 21 MR. BLUM: l don't-22 SPECIAL MASTER CORNELL: I'm not saying it's 23 determinative necessarily, but it certainly plays into 24 it, doesn't it? 25 MR. BLUM: Well, it has an affect. The judge

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1 is doing something here that I think is very unusual 2 for a judge. Reporting a crime. You guys know --

Page 3 7

3 SPECIAL MASTER CORNELL: You're very fami l iar 4 with Oberholzer who said that seeking an opinion from 5 the CJA i s essentially insulating you from a bad faith 6 allegation. 7 MR. BLUM : That's what I was going to say. 8 SPECIAL MASTER CORNELL: Would that be akin 9 to what occurred here?

10 MR. BLUM: Well, talking with a couple of 1 I your friends down the hallway about where to send the 12 transcript, I don't think is the same level.

13 SPECIAL MASTER CORNELL: If your two friends 14 down the hal lway are justices, isn't that a little bit 15 different than talking to two staff people? 16 MR . BLUM : Sure, sure. I don't mean it's 17 like talking to the people on the street or something. 18 But he should have consulted with CJA. There's no 1 9 question he should have done that. This was a rare 20 and unusual and touchy thing he was doing, reporting a 21 crime against a party in front of him. He needs to be 22 very careful about what he says and who he said it to. 23 SPECIAL MASTER ANDLER: Does the failure to 24 consult CJA make it prejudicial misconduct or willful 25 misconduct?

Page 38

1 MR. BLUM: I wouldn't argue that point, no. 2 SPECIAL MASTER ANDLER: But you think he 3 should have disclosed? 4 MR. BLUM: I think he should have. I think 5 it's a factor in looking at how the objective observer 6 m!ght view it. But I don't think it by itself makes 7 it prejudicial misconduct or will ful . 8 Actual observers, on the fourth allegation. 9 Sharon Huddle says the judge was ve1y impatient with

10 her. Ms. Keeley said that the judge was somewhat 11 impatient with Huddle. She didn't see it as negative, 12 but she admitted he showed impatience. Robbi Joy is a 13 neutral third party. She's not friends with any of 14 thcs people. She's been a court reporter for a long 15 time, and she has seen a lot of what takes place in 16 courtrooms. She testified that the judge was 17 demeaning to Ms. Huddle, treated her with disdain and 18 displayed irritation towards her throughout the trial, 1 9 and she never saw Ms. Huddle do anything to justify 20 that conduct. Even Judge McBrien admitted that some 21 of his comments could make it appear that he was 22 badgering Ms. Huddle in an inappropriate manner. 23 Now, in addition to what these actual 24 observers said, the record shows that he repeatedly 25 threatened a mistrial from early on in the trial,

Page 3 9

1 curtailed her presentation o f evidence, threatened her 2 with contempt, and he would barely let her take breaks 3 to go to the bathroom. 4 The law school comment was discourteous. 5 Referring to law school as he did could reasonably be 6 interpreted as demeaning. It certainly was 7 interpreted that way by Ms. Huddle. She described the 8 judge's tone as like a parent scolding a child. She 9 said she fel t belittled in front of her client.

10 The judge's response is that he didn't mean 11 or didn't intend to be discourteous. I think the 12 evidence shows that he probably did intend to be 13 discourteous. But either way, his intention is not a 14 significant factor in assessing whether prejudicial 15 misconduct occurred. It's how it appears to an 16 objective observer, not what he meant. And remember 17 in context, this incident occurred shortly after he 18 threatened her with contempt, just a few pages later 19 in the transcript. And I think his attitude towards 20 her is stil l showing. 21 There's one other matter I would l ike to 22 discuss because i t goes to the judge's credibility. 23 Judge McBrien testified about his prior admonishment. 24 He testified that it involved one limb from one tree. 25 He said that a number of times. He said that he was

Page 4 0

1 just telling u s what actually happened. But i t wasn't 2 what actually happened. 3 You can see from Exhibit 45, the court 4 documents, that that's not what happened. And in 5 Exhibit 46, his sworn statement, he admitted that he 6 was aware that other trees had been cut. He describes 7 seeing at least two branches fal l . He said he knew 8 that the search warrant reflected that five mature oak 9 trees and three smaller ones were cut, and he said he

10 could see other branches lying on the ground. So why 11 did he testify at our hearing that it involved one 12 limb on one tree? Exhibit P is his attempt to explain 13 that. He says that what he meant was he only saw one 14 limb fal l to the ground. So instead of telling us 15 what actually happened, now we're hearing that what he 16 was trying to tell us is what he saw with his own 17 eyes. 18 Sure, he was at home; he heard the chain saw 19 running, but he was inside most of the time and only 20 saw one branch fal l . Wel l , first of all, what 21 difference would that make? If you hire someone to 22 cut trees that should not be cut, you're responsible 23 for all that are cut, not just the one you watched 24 fal l to the ground. But more importantly, is that 25 what he testified to at our hearing? Was he saying,

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1 "Yes, I know there were many branches cut, but I only 1 SPECIAL MASTER ANDLER: Thank you. 2 saw one fall"? Is that what he said? Or did he 2 SPECIAL MASTER DE BELLEFEUILLE: So, what is 3 testify that somehow he only feels responsible for one 4 limb? Did he qualify his testimony like that? No, he 5 didn't. 6 What he said was, "It's all been blown out of 7 proportion by the media. I'm not Paul Bunyan. I t 8 involved only one limb from one tree." He w a s very, 9 very clear about that fact. But it's simply not true,

1 0 and he knew it. When I asked him if he had been 1 1 charged $20,000 for one branch, he said "correct." 12 But it's not correct. The charge was for many 1 3 branches. At our hearing, he also claimed that the 14 limb was cut for fire safety and that improving the 15 view was just a side benefit. But in his sworn 16 statement at Page 66, he said it was cut to improve 1 7 the view. His testimony at our hearing about his 1 8 prior incident was misleading, and he knew it. He 19 knew that a lot more than one limb had been removed. 20 To conclude, obviously we're not bound by 21 what the Court of Appeal did in this case. But if 22 anything, the facts before us are worse than what are 23 in that opinion. The Appellate Court's decision, for 24 example, did not include the fact that the EPO took 25 less .than two minutes, that he just walked away

Page 4 2 I without even checking back into the courtroom, and 2 that he just left the parties sitting there not 3 knowing what was going on. No reasonable judge would 4 have behaved this way. And now he wants to blame the 5 attorney, but the misconduct is his. 6 Thank you. 7 SPECIAL MASTER CORNELL: Any questions? 8 SPECIAL M ASTER DE BELLEFEUILLE: (Shakes 9 head .)

10 SPECIA L MASTER ANDLER: With regard to the I I appellate decision, I would like you to talk a little 12 bit about the extent we should consider the content of 1 3 that decision as opposed to just the outcome. Counsel 14 for the judge has argued that it's hearsay and we 15 should not consider -- in essence, we should not 16 consider the content of it . 17 MR. BLU M : Well, the findings of fact in the 1 8 Court of Appeal decision are not what you have here. 19 You make your own findings of fact based on what the 20 evidence is before you, of course. The law in there, 2 1 the principles of law, are controlling law in the 22 area . What is due process violation? What are 23 parties entitled to? What obligations does the judge 24 have to protect those rights? Those are very 25 i mportant.

3 due process? 4 M R. BLU M : Whoa. 5 SPECIAL MASTER DE BELLEFEUILLE: Well, it's 6 an issue here. What is it? 7 MR. BLUM: It's a combination of things. 8 It's a whole bundle of things. In terms of putting on 9 your case, it's a right to have a full and fair

I 0 hearing, a right to have all relevant, material I I evidence introduced and considered by the judge. 12 There's a lot of other things that due process are as 1 3 well, but it may go beyond what we need here. 1 4 SPECIAL MASTER D E BELLEFEUILLE: Thank you. 1 5 SPECIAL MASTER CORNELL: Okay. Thank you. 1 6 We'll be in recess for 1 0 minutes. 1 7 (Recess taken.) 1 8 SPECIAL MASTER CORNELL: Mr. Murphy, you may 19 begin. 20 MR. MURPHY: Thank you, Your Honor. 2 1 ---oOo---22 ORAL ARGUMENT ON BEHALF OF RESPONDENT 23 MR. MURPHY: I usually have my best thoughts 24 after I conclude a trial or after I've concluded an 25 argument, but I think I came up with a pretty good one

Page 44

I this morning. 2 What is this case really all about? The 3 question, I think, for the Special Masters to resolve 4 is: Is it a denial of due process to limit by time 5 the parties' abil ity to present evidence? And I 6 submit that under the circumstances of this case, the 7 answer is it is not a denial of due process. 8 SPECIAL MASTER ANDLER: So the Appellate 9 Court was wrong?

1 0 MR. MURPHY : I think the Appellate Court was II wrong. And let me explain why factually. 12 There are limitations that are imposed on 13 lawyers by a number of tribunals with respect to what 14 evidence or what arguments may be advanced. For 1 5 example, the Commission on Judicial Performance in 16 Policy Declaration 2. 1 states: Arguments -- this is 1 7 in connection with a Notice oflntended Public 1 8 Admonishment when a judge and/or counsel request an 19 opportunity to be heard. Quote: Argument shall be 20 limited to oral presentation not the exceed 20 21 minutes. Rule of Court 8.256(c)2 limits oral argument 22 in the Court of Appeals to 30 m inutes per side. Rule 23 8.524(e) limits oral argument in the Supreme Court to 24 30 minutes per side. 25 I know it's not part of the record in this

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I matter, but I have personally been involved in at 2 least three trials. One here in federal court before

Page 45

3 Judge Olson, one in San Diego before Judge Vincent 4 DiFiglia, and one in Los Angeles in front of James 5 Chalfant, where our time was limited. It was limited 6 to the presentation of evidence, and the Court made 7 sure that we complied with its order relative to the 8 amount of time you had to present your case. 9 SPECIAL MASTER COR NELL: Mr. Murphy, I don't

I 0 think anybody is disputing the authority to do what I I you're describing. If you want to go one step higher, 12 the State Supreme Court limits it to 30 minutes. But 1 3 I think the method is what's in question here, in that 14 the argument, I presume, is there could be a due

15 process violation if the method is abusive. 16 M R . MURPHY: Well, it appeared to me as 17 though Mr. Blum was criticizing the fact that 1 8 Judge McBrien did not go out of his way to extend more 19 time to the parties to complete the evidence. 20 Well, the parties themselves, through 21 counsel, were the ones who estimated the time of two 22 days. And if you take a look at the record, they were 23 given 12 hours and 27 minutes of trial time. Now, i f 24 you start at 9:00 and g o to noon, start a t I : 3 0 and go 25 to 4:30 and break for 15 minutes in the morning and I S

Page 4 6 I minutes i n the afternoon, that's only fi v e and a half 2 hours of testimony. Two days of five and a half hours 3 of testimony would be I I hours. They were given an 4 hour and a half over what I would characterize as a 5 normal court day for a hard-working j udge. So it 6 was --7 SPECIAL MA STER CORNELL: What do you think is 8 the significance of Judge McBrien having handled -- by 9 his estimate, and I don't dispute it -- 40,000 trials,

I 0 and that this is the only one that ended in this II fashion? 12 MR . MURPHY: Well, the significance is that 13 he adhered to the time estimate by the parties and had 14 told them repeatedly that they needed to conclude on 15 time. He told them not only on the first day, and not 16 only on the second day, but on the third day. And the 17 parties knew all along that they were given two full 18 court days and, in fact, were given more than two full 19 court days. So can he be disciplined -- or should he 20 be disciplined for adhering to a time limitation? I 21 say no. And it's up to -- I'm not criticizing Sharon 22 Huddle; I'm not criticizing Charlotte Keeley. But 23 it's up to the lawyers to be able to fashion their 24 case to make the presentation to the C ourt within the 25 time allowed.

Page 4 7 SPEC IAL MASTER ANDLER : I'll ask you the same

2 question that I asked earlier: Does it matter whether 3 it's a criminal case, a civil case, a family law case 4 or another type of case in terms of whether the judge 5 has an obligation to step in and actively do something 6 to ensure a full and fair hearing? 7 MR . MURPHY: I think it's up to the lawyers 8 to make sure that a full and fair hearing is held 9 within the time limitations imposed by the C ourt. And

10 if the Court has imposed a time limitation of two I I days, based on the representations made by counsel,

12 it's counsel's responsibility to do that. And 13 Judge McBrien pointed that out: " I t's not my 14 responsibility as a judge to estimate the length of 15 the trial; that's the responsibility of counsel . " 16 SPEC IAL MASTER ANDLER : Would the C ourt have 17 the obligation to do that in a criminal case? 18 MR . MURPHY: Well, I guess I would have to 19 know more facts to be able to address the 20 hypothetical. But it would depend on the 2 1 circumstances. Here, as Mr. Blum says, it's kind of a 22 garden-variety dissolution case without too much 23 complexity. Why it could not h ave been completed 24 within two days is beyond me. Mr. Blum said that they 25 needed more than two days. There wasn't any evidence

Page 4 8 I they needed more than two days other than Sharon

2 Huddle saying that she hadn't completed her case. Why 3 hadn't she completed her case? They were given a week 4 between the second day of trial and the third day of 5 trial to refine what they needed to do. And they --6 Ms. Huddle never requested any additional time. Even 7 knowing at 4:00, when she asked to take a recess to 8 use the bathroom, knowing at 4 :00 -- and I kept asking 9 her this question during the hearing, "You knew at

I 0 that point in time you were not going to complete i t I I b y 4:30" -- she didn't come back in and ask for I 2 additional time. 13 SPECIAL MASTER CORNELL: Well, Mr. Murphy --14 let's see if I can articulate this. Judge McBrien's 15 actions should be governed by the canons, shouldn't 16 they, and not by the conduct of the lawyers? 1 7 MR . MU RPHY: Yes. 1 8 SPECIAL MASTER CORNELL: Okay. So 19 hypothetically, you're in the middle of a j ury trial . 20 You've exceeded your time, and the judge says, "Trial 2 1 over" and walks off with a j ury in the box and you 22 sitting and waiting to ask a question of a witness. 23 Do you think that's a proper thing for a judge to do? 24 MR . MURPHY: Well, again, I would have to 25 know more information. We're talking about a jury

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I trial; we're talking about a jury being impaneled. 2 I've tried cases where my time was limited.

Page 4 9

3 SPECIAL MASTER CORNELL: I would agree that 4 you can have them limited. I'm saying that's not the 5 issue. It's not the authority to limit it; it's the 6 method. 7 So my hypothetical to you is: Is it 8 appropriate for a judge, in your case -- you're in a 9 jury trial, you're examining your witness in front of

I 0 the jury -- to get up and walk off, "time is up" and I I walk off the bench? 1 2 MR. MURPHY: I think it would be within the 1 3 sound discretion of the Court to declare the trial 14 over, that "You have now exceeded your time 1 5 limitation; I'm retiring for the day; evidence is 1 6 over; we're going to have oral argument tomorrow 1 7 morning." 1 8 SPECIAL MASTER DE BELLEFEUILLE: But the case 1 9 wouldn't be over then, because oral argument would 20 still take place in front of a jury. Here we had no 21 oral argument; there was no argument. 22 MR. MURPHY: Well, that's true. That's why I 23 have to know more facts to be able to respond to that. 24 But oral argument is not a right in a family law case, 25 and I provided that authority to the Court.

I So if the judge does not have to take 2 argument and is only taking evidence to make a 3 decision, there would be no prohibition under the

Page 50

4 canons to say, "All right, at 4:29, you have one more 5 minute and the case is over. I don't care what 6 additional evidence you have. You estimated two days; 7 I gave you two days. I gave you more than two days. 8 If you weren't able to complete the presentation of 9 your case within that time period, too bad." I think

I 0 a judge would be within his or her right to do that. I I And in this particular instance, court 1 2 adjourned at 4:29. Evidence was over at 4:29. That's 1 3 why I come back to this issue of due process. I f 1 4 Judge McBrien h a d waited a n additional minute a n d then 15 said, "Okay, it's 4:30. I've told you it was going to 1 6 be over at 4:30; it's now over at 4:30. I'm off the 17 bench," how would that have been any different? And I 1 8 think the judge, under that circumstance, would have 1 9 the absolute right to terminate the trial at 4:30. 20 SPECIAL M A STER ANDLER: What gives the judge 2 I that right? You've given us examples of other 22 situations where timed trials or the equivalent of 23 timed trials are considered to be appropriate under 24 the law. In the federal system, you've indicated that 25 that occurs; under other situations, you've indicated

Page 5 1

I that occurs. Some o f those situations are governed at 2 least by a local rule, if not something stronger than 3 a local rule. In this particular instance, there was 4 not, at that point, a local rule that said the 5 consequence of exceeding your time limit could be a 6 mistrial. So what was the -- was it an inherent 7 authority, or was there something else? 8 MR. MURPHY: It's the i nherent authority of 9 the Court to control the orderly administration of

I 0 justice in matters coming before it. And if the time I I limitation is -- I guess we have to step back and 1 2 say -- this wasn't presented, and the Commission 13 didn't present i t -- was two days adequate to present 14 this case for hearing? I don't know whether it was or

15 not, but that's what the parties said it would take to 16 present the case. It appears to me that this case 1 7 could have and should have been completed in less than I 8 two days, but it wasn't. 1 9 Now, if there is a denial of due process 20 because the judge did not allow the parties to go on 2 1 indefinitely, because we don't know how long 22 Ms. Huddle needed to take to complete her case, the 23 question is if you terminate the trial at the 24 expiration of two days, regardless of whether there's 25 additional evidence to present or not, is that a

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I denial of due process? And under the circumstances 2 here, it cannot be. It was the parties' estimate of 3 two days. They didn't complete the trial. So at the 4 end of the second day, does the judge have the right 5 to say, "Enough. I'm not going to take any more 6 evidence; I'm going to make the decision based on what 7 has been presented during your estimated time length," 8 I don't think there was any prohibition under the law 9 for the judge to do that.

10 So it really comes down to, all right, if he I I had just said those magic words at 4:30 as opposed to 1 2 taking the EPO call at 4:29, would that have made a 1 3 difference in the Commission's mind? Apparently i t 1 4 would have. So we're talking about one minute. And 15 how was due process denied i n that one minute of time? 16 SPECIAL MASTER CORNELL: Well, that's I 7 misstating it. Mr. Blum's position was that if he had 1 8 come back out on the bench and made inquiry, made a 1 9 decision and took it under submission, that would be a 20 different thing. That's far different than coming out 2 1 and saying "Trial is over" at 4:29. 22 MR. MURPHY: But we're talking about a denial 23 of due process. That's what the Commission has been 24 arguing. And how is due process denied if the judge 25 had the right to terminate at 4:30 and terminated

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1 instead at 4:29? If we're talking about bad faith 2 conduct -- that's what he was talking about. That's 3 what Mr. Blum was talking about. I submit that, if 4 anything, that perhaps it was not prudent for the 5 Court to do that, and perhaps it didn't appear to the 6 public to be the correct way of doing it, but it 7 wasn't bad faith. I t wasn't a denial of due process.

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8 SPECIAL MASTER CORNELL: Would you agree that 9 it was conduct prejudicial then?

10 MR. MURPHY: I think it would be closer to I I that than -- certainly it is not bad faith. If we 12 start with the premise that the --13 SPECIAL MASTER CORNELL: Do you think we have 14 to find due process violation to get to willful 1 5 misconduct? 1 6 MR. MURPHY: Under the bad faith standard, I 1 7 believe you do, willful misconduct. And that's what 1 8 they're alleging, that this was willful misconduct; he 1 9 denied the parties their due process rights. 20 SPECIAL MASTER ANDLER: So are you conceding 2 1 that it was conduct prejudicial for the trial to end 22 in the way it did? 23 MR. MURPHY: Under the circumstances, given 24 the appellate decision, I think that it would probably 25 amount to that.

1 One other issue that I wanted to address, and 2 it related to Mr. B lum's comment that the trial

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3 changed because M s . Keeley decided that h e r client did 4 not want to have the 24th Street property and she 5 wanted her husband, Mr. Carlsson, to have that 6 property and give an equalizing payment and that 7 caused the case to last more than two days. That's 8 not quite accurate. 9 Remember, the reason why that 24th Street

I 0 property became an issue with respect to valuation was I I because Mr. M ayo had filed a lis pendens against the 12 property when he filed his complaint against the 13 Carlssons. And if that property were sold, like 14 Mr. Carlsson wanted, that l is pendens would hold up 15 the disbursement of any funds. So the reason why 16 Ms. Keeley was proceeding with a valuation for that 17 property for an equalizing payment was because it 18 would avoid the whole l is pendens issue. 1 9 SPECIAL M A STER CORNELL: However, all of that 20 was contrary to the position taken even in the trial 21 memo, wasn't it? 22 MR. MURPHY: No, it wasn't. Ms. Keeley, at 23 trial, took the position that 24th Street should be 24 retained by Mr. Carlsson; there should be an 25 equalizing payment made to her. And the reason for

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I that is because o f the l i s pendens. If the property 2 were ordered sold, which Judge McBrien actually did 3 order, that lis pendens would then prevent the 4 disbursement of funds pending resolution of the l is 5 pendens. That's why Ms. Keeley did not want or would 6 not stipulate just to have that property sold, because 7 this lis pendens, this Mayo issue, was still out 8 there. 9 SPECIAL MASTER DE BELLEFEUI LLE: Is her

I 0 strategy decision one of the reasons that the trial I I took longer than she had estimated? That was an 1 2 unexpected position that Ms. Huddle found herself in. 13 Ms. Huddle -- let's face it, she wasn't an insider. 14 She wasn't a pro tern. She didn't belong to the local 1 5 Bar. She didn't have her certification. You spent a 1 6 great deal of time in your closing brief addressing 1 7 her lack of qualifications. She was a little less 1 8 prepared and Jess organized than her opponent but, 1 9 nonetheless, doing the best that she could to 20 represent her client and counter the strategies that 21 were set forth by Ms. Keeley, which was to do 22 something that the judge had never seen before, 23 forcing one of the parties to retain a piece of 24 property. A lot of the evidence had to concentrate on 25 that unique issue.

Page 56 I MR. MURPHY: Well, it wasn't unique at the 2 time the at-issue memorandum was filed in December of 3 2005. And at that point in time, valuation of the 4 properties was an issue, and the parties had expert 5 witnesses. So at the time they estimated the length 6 of trial at two days, they knew valuation was an 7 issue. It wasn't a surprise. It wasn't like they 8 brought in these expert witnesses a day before trial 9 to come in and testify, "Oh, l took a look at the

1 0 property yesterday, and this is my opinion of value." 1 1 That was always an issue. That was present and joined 12 at the time the at-issue memorandum was filed in 1 3 December 2005. When they estimated a two-day trial, 1 4 that was included, the valuation of those properties. 1 5 SPECIAL MASTER DE BELLEFEUILLE: Mr. Murphy, 1 6 as I'm fond of saying as a trial judge, Murphy's Law 1 7 often comes into play in trial proceedings. It always 1 8 seems to come into play in courtroom proceedings. The 1 9 time that was needed to be spent on the evaluation of 20 this four-plex, it exceeded what was estimated 2 1 partially because one of the experts made a mistake 22 mathematically which had to be addressed. Was it not 23 important from all perspectives to conclude Mr. Shah's 24 testimony to find out why he made the mistake? 1 25 mean, that came up. That was Murphy's Law in

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I operation. Should a judge not be flexible in terms of 2 accommodating surprises in trial? Should Ms. Huddle 3 and her client be penalized because their witness made 4 a mistake that needed to be addressed? 5 MR. M URPHY: Well, I think that would 6 probably be true in any situation where you find out, 7 during the course of trial, that your evidence wasn't 8 what it was when you started trial . And there's an 9 old adage that plaintiffs' l awyers use, and that is

10 "your case never gets any better than the first day 1 1 the client walks into your office." Things change. 12 Trials are dynamic. But because an expert made a 1 3 wrong C< lculation or had to concede an error is not a 1 4 reason to extend the trial. That in and of itself 15 That's something that the client and the lawyer have 16 to take up with the expert witness. 17 But getting back to the point and 18 Your Honor's question about unexpected results, well, 19 that testimony was unexpected; but what was expected 20 going into the trial and when the at-issue memorandum 2 1 was fiied was that there would be expert testimony 22 with respect to the values of these two properties. 23 So that wasn't a surprise. 24 Now, Mr. Blum was talking about the second 25 claim by the Commission with respect to the threat of

I contempt. And I take it that that is his 2 interpretation of what Judge McBrien said during the 3 course of the trial. I think what Judge McBrien said 4 has to h;: considered in the context of what was 5 pr sentcd. He made the statement that "Am I to take 6 that as a no, placing you in the possibility of

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7 contempt?" I believe those ':"ere his exact words. He 8 didn't threaten but "placing you in the possibility of 9 con "mpt." That statement was made four pages after

10 the discussion began on the morning of M arch -- excuse I I me, the afternoon of M arch 9, 2006 with respect to the 12 request that the FPPC filing be presented. The second 13 day of trial was concluded on March 3. That is when 14 Judge McBrien requested the document. I 5 A week later, when trial resumed, he made the 1 6 request of the document. The parties had a week_ 17 Ms. l luddle and Mr. Carlsson had a week to get that 18 document. What was the response? "Mr. Carlsson's on 1 9 disability and was unable to go down to his place of 20 employment to get that document," and then there are 2 I four pages of discussions with Ms. Keeley. 22 SPECIAL MASTER CORNELL: Ms. Huddle. 23 MR. MURPHY: I can read this --

I SPECIAL MASTER CORNELL: They aren't 2 interchangeable. 3 MR. MURPHY: I see Ms. Huddle's name here. 4 For some reason, I was thinking Keeley. 5 Was Judge McBrien frustrated? lt looks to me 6 as though he was frustrated. Was he threatening her

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7 with contempt? No. He was expressing his frustration 8 with her and what appears to be a responsive argument 9 on her part that was not addressing the issue that he

I 0 had raised. 1 1 The comment about law school is almost 1 2 laughable. 13 SPECIAL MASTER DE BELLEFEUILLE: Mr. Murphy, 1 4 it's not laughable if you're the lawyer in front of 1 5 the Court who's being addressed down with a law school 1 6 comment. ... 1 7 MR. MURPHY: But, Your Honor, I would 1 8 disagree that that is a pejorative comment. 1 9 SPECIAL MASTER CORNELL: Well, maybe in 20 isolation, but don't we have to take all of this in 2 1 context? 22 MR. MURPHY: And that's what I'm requesting 23 the Court to do here, take that into context. What 24 prompted that statement? It wasn't as though it came 25 out of the blue in response to a question. She was

1 getting ready to question -- she actually was Page 60

2 questioning Mr. Minkoff and wanted to go back and ask 3 him questions about his physical condition, and turned 4 to the Court -- I wasn't there, but it certainly 5 appears from the transcript that she turned to the 6 Court to explain to the Court why she was going to go 7 back and ask Mr. Minkoff questions about his medical 8 condition, which related to her statement regarding 9 his medical condition made on March 3 . And

1 0 Judge McBrien said, "Ms. Huddle, you don't have to 1 1 explain your motives; this isn't a law school class. 1 2 Just ask your questions." And you saw his demeanor 1 3 during the course of his testimony. He's pretty even 14 keeled. He doesn't raise his voice, doesn't lower his 15 voice. He's actually kind of a monotone. I'm not 1 6 suggesting that you need to be dynamic, but his 1 7 demeanor was pretty even keeled. It would surprise 18 me, based on his testimony and the manner of his 1 9 testimony in questions he was asked by Mr. Blum during 20 the course of the hearing, that he would be someone 2 1 who would be yelling or screaming or demeaning. He's 22 just not that way, and you saw it when he testified. 23 Finally, I want to address this partial

24 SPECIAL MASTER CORNELL: You said Ms. Keeley. 24 transcript matter. I think Your Honor, Justice 25 MR. MURPHY: Excuse me, Ms. Huddle. 25 Cornell, when you asked Mr. Blum the questions about

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I that partial transcript, especially with respect to 2 the consultation with other judges -- what really 3 happened here? We don't know when that partial 4 transcript was first requested other than it was 5 requested after the trial. It wasn't received by

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6 Judge McBrien until September of2006, right around 7 September 1 1 . And at that point in time, 8 Judge McBrien reviewed the transcript, consulted with 9 two other Superior Court judges as to what he should

I 0 do, an I the r commendation was that it should be I i referred to General Services. And that is exactly 1 2 what Judge McBrien did. But he didn't report a crime 13 like Mr. l:!lum argued. All he did was contact Linda 14 Cabatic, tell her that he had this transcript that she 1 5 should take a look at and sent it off to her. H e 1 6 didn't report a crime. A n d h i s testimony was he 1 7 didn't know whether there was an obligation to report 1 8 this or not. He wasn't taking a position on that. H e 1 9 was leaving that u p t o General Services. 20 SPECIAL MASTER DE BELLEFEUILLE: If he wasn't 2 1 reporting a crime, what was he doing? What do you 22 characterize the action as? 23 MR. MURPHY: He was reporting circumstances 24 that could have been criminal. 25 SPECIAL MASTER DE BELLEFEUILLE: What's the

l difference? 2 MR. MURPHY: He wasn't --

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3 SPECIAL MASTER DE BELLEFEUILLE: Why, in your 4 mind, is there a difference that matters? 5 MR. MURPHY: Because Mr. Blum was arguing to 6 the Masters that he was report -- he was taking a 7 position on this particular matter. He wasn't taking 8 a position. All he was doing was reporting the 9 factual circumstances surrounding the testimony that

I 0 was presented. He was not editorializing. He was I I merely providing the testimony. 1 2 SPECIAL MASTER ANDLER: He was contacting the 1 3 employer of a party who was, I think, still in a 1 4 proceeding that had not finally concluded before him. 1 5 MR. MURPHY: Right. 1 6 SPECIAL MASTER ANDLER: H e was contacting the 1 7 employer to advise of possible criminal activity by 1 8 their employee who was still a party in front of him. 19 MR. MURPHY: I don't have the transcript in 20 front of me, but l don't believe --2 1 SPECIAL MASTER ANDLER: I 'm saying, isn't 22 that a fair assessment of what be did? 23 MR. MURPHY: Well, whether Judge McBrien 24 considered it to be criminal or not, I don't think is 25 in the record. What is in the record is that he did

I not advise General Services that, in his opinion, a 2 crime had been committed. He left it up to General 3 Services to conduct their investigation. He wasn't 4 conducting an investigation.

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5 SPECIAL MASTER ANDLER: Let's leave out the 6 issue of whether it was criminal activity. Let's just 7 say he was contacting the employer about something 8 that needed to be investigated regarding an employee 9 of theirs who was a party in front of him.

1 0 MR. MURPHY: Right. I I SPECIAL MASTER ANDLER: Is that what he was 1 2 doing? 1 3 M R . BLUM: Yes. 1 4 SPECIAL MASTER ANDLER: I s that okay? 1 5 MR. MURPHY: Well, I think merely what he did 1 6 was okay. Once the action was taken by General 1 7 Services, Judge McBrien then disqualified himself from 1 8 any further proceedings in the matter. General 19 Services took action in, I believe it was October. 20 SPECIAL MASTER DE BELLEFEUILLE: In November, 2 1 when Judge McBrien learned that Mr. Carlsson had been 22 fired from his position with the government, be then 23 recused himself. What you're describing sounds to me 24 like an ex parte communication, which hasn't been 25 anything that we've talked about before.

Page 6 4 M R . MURPHY: Well --I

2 SPECIAL MASTER DE BELLEFEUILLE: If he's not 3 reporting a crime, he's talking to someone out of 4 school about a party, providing evidence in an ongoing 5 case that he's handling, a pending case. Doesn't that 6 add more difficulty to our scenario? It's an ex parte 7 communication not authorized by the code. 8 MR. MURPHY: Well, given the fact that that 9 wasn't charged --

1 0 SPECIAL MASTER D E BELLEFEUILLE: But --I I MR. MURPHY: -- I haven't given it much 12 thought. 13 SPECIAL MASTER DE BELLEFEUILLE: But what 14 you're describing sounds like that to me. 15 SPECIAL MASTER CORNELL: Can you answer the 1 6 question? 1 7 MR. MURPHY: Is it ex parte with respect to 1 8 the matters then pending before the Court? I don't 19 think so because it's not really an i ssue. The judge 20 has already decided the case. 21 SPECIAL MASTER DE BELLEFEUILLE: Family law 22 cases are never decided until the chi ldren grow up and 23 move away. 24 M R. MURPHY: Unfortunately I know that. But 25 he had ruled on the matter that had been presented to

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Page 6 5 Page 67 1 him in March of2006. 1 he frequently -- and my estimation would be m aybe once 2 SPECIAL MASTER DE BELLEFEUILLE: The case was 2 a week -- sees people lying either on the witness 3 st ill pending. 4 MR. MURPHY: The case is still pending. The 5 case is sti i l pending in the Sacramento County Family 6 Law Depnrtment. He is still presiding, for the most 7 part, on that matter. So I guess the question really 8 has to be : Is this an ex parte communication wi th 9 respect to matters that arc then pending before the

I 0 Court': And 1 don't believe that matter was then I 1 pending before the Court. 12 SPEC!i\l. MASTER CORNELL: Let's pull back. 13 Excuse me:. you had a question. 14 SPECiAL MASTER ANDLER: No. Go ahead. 15 SPECIAL MASTER CORNELL: Let's pull back. 16 You're treating in isolation a final event after a I 7 seric, of :vents. And I want your opinion as to what I 8 th i .; . c:ncs of events, which are described in Count I 9 3 - whnt that constitutes in terms of misconduct. 20 Bec;.us we start with him talcing a line of questioning 2 I and fol lov ing it, without request by lawyers, on a 22 subjc, : t 1ar was not pursued by lawyers, and then he 23 askcc or n transcript, not once but three times, with 24 the second and third times coming a month later, and 25 they happened to coincide when new motions were filed

Page 6 6 I and pending i n front of him. S o obviously h e had some 2 tickle in h is brain and said, "Oh, yes, I still 3 h;.w cn't g ttcn that transcript." And then he notifies 4 the ernpl0y.:r with a personal phone call and provides 5 thL transcript. All done without any disclosure. Now 6 we hav.: an entire course of conduct. 7 Do you think that that rises to the level 8 of -- any level of misconduct under the canons? 9 M R . M U RPHY: No. And I'll tell you why.

I 0 Because l th ink judges every day make requests for 11 information. They have concerns, and they don't 12 disclose that on the record. The disclosure has to be I 3 made under the canons if an objective person, knowing 14 all of the facts, would question whether the judge can 15 be fair and impartial. 16 SPECIAL MASTER CORNELL: That's why I started 17 with the description that it all started when he I 8 continued to cross-examine the witness on an issue I 9 that asked for records that nobody else had ever 20 pursued. That was the beginning of this. And he 21 followed through on it and then ultimately did the 22 final act that you're describing. So what you 23 described to me is the right of a judge to do 24 something, and I compare what happened here to 25 Judge McBrien's own testimony that in 40,000 trials,

3 stand or under oath in a tax return, which is a 4 felony, and he did not once pursue it and did not once 5 report it. So we're looking at literally hundreds of 6 felonies on one side that he did nothing on, and maybe 7 some conflict of interest on this side in which he 8 pursued i t zealously without disclosure. 9 Now, you're telling me that conduct is okay?

10 M R . MURPHY: Well, I would disagree with the II Court's characterization that he zealously pursued 12 that. 13 The inquiry was made by, I believe, 14 Ms. Keeley after the door was opened by Ms. Huddle, 15 and Judge McBrien requested that the document be 16 produced. 17 SPECIAL M ASTER CORNELL: She started it and 18 then he followed up on it. I 9 M R . MURPHY : And then his testimony was -- he 20 wasn't interrogating Mr. Carlsson on the document or 21 under the disclosures. That was questioning by 22 counsel, not by the Court. The Court merely requested 23 a document be produced. 24 And Judge M cBrien testified that the reason 25 he requested the partial transcript was to make sure

Page 68 1 he accurately heard what was said by Mr. Carlsson. 2 And when he requested that partial transcript, 3 subsequently there was an order that issued in the 4 case, so it was matter of public record that the 5 partial transcript had been requested. When it was 6 requested in September of 200 1 , I don't believe --7 excuse me, September of2006 -- I had September I I on 8 my brain -- I don't believe that there was anything 9 pending before the Court at that point in time. So

10 the question is --11 SPECIAL MASTER CORNELL: But there was. At 12 the time he reported it, there was. In September, I 3 they had just concluded one. 14 MR. MURPHY: The hearing on the enforcement 15 of the order?

16 SPECIAL MASTER CORNELL: Yes. 17 MR. MURPHY: Okay. 18 The question, I think, is whether 1 9 Judge McBrien became embroiled by undertaking the 20 efforts to secure the partial transcript. I think, in 2 I and of itself, the answer is he was not embroiled. 22 SPECIAL MASTER ANDLER: Breaking it down into 23 the steps we talked about earlier, the issue of asking 24 for the transcript, you've just addressed; making the 25 phone call, I think you've given us your perspective

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I o n that. I 'm sti l l not sure that I understand your 2 position on why he did not have to disclose until 3 after he knew what the net effect of his transmission 4 of that information was. Is your position that he was 5 excused from disclosing because ultimately he 6 disqualified? 7 MR. MURPHY: Well , it's hard to look into the 8 record in this particular case and try to draw any 9 conclusions one way or the other as to what the judge

10 was thinking. What we do know is that his testimony I I was h didn't know whether there was going to be any 12 action taken by General Services or the Fair Political 13 Practice Commission or not. 1 4 SPECIAL MASTER ANDLER: Why is that 15 significant though? We're talking about -- are you 16 saying the duty to disclose would only be triggered i f 17 h e knew what the results o f this action were going t o 1 8 b e a s opposed to the disclosure that h e had 1 9 transmitted the evidence? 20 M R . MURPHY: Well, I think i f his actions 2 1 resulted in some process by General Services that was 22 adverse to Mr. Carlsson, then at that point in time, 23 it wmi ld be clear to me that he would have to recuse 24 himsel r I don't think just disclosing that would be 25 sufficient. I think under those circumstances, the

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Page 7 1 I further questions -- have you concluded your --2 MR. MURPHY: I have, Your Honor. 3 SPECIAL MASTER CORNELL: (Gesturing)? 4 SPECIAL MASTER DE BELLEFEUILLE: No. Thank 5 you. 6 SPECIAL MASTER ANDLER: I think I understand 7 from your briefs that you believe we should not pay 8 any attention to the testimony that was elicited, 9 including the testimony from your client, about the

I 0 prior incident because it's unrelated? I I MR. MURPHY: It is unrelated. And the reason 12 Judge McBrien wanted to address that is for the very 1 3 testimony he gave. He's been vilified in the press. 1 4 If you take a look at any comments about this case in 1 5 any of the -- well, The Recorder, for example, has a 16 picture of Judge McBrien. They call him "Chain Saw 1 7 McBrien." And he wanted to just clear the record as 18 to what really happened. He wasn't out there cutting 1 9 down trees. He saw one large branch cut down. And 20 all of the other branches that were cut may -- some of 2 1 them were very old, were cut before he moved to the 22 property. So does he accept what he did? Yes. He's 23 not challenging the previous admonishment, but he 24 wants to get rid of this moniker of "Chain Saw 25 McBrien" because he's not Paul Bunyan, like he said.

I judge would pro