Judgment Day in San Diego

by Peter Kaye

Peter Kaye

On Oct. 18, two former San Diego judges and a prominent lawyer were convicted of federal racketeering and mail fraud. Are the convictions of ex-Judges G. Dennis Adams and James Malkus and attorney Patrick Frega the final chapter in a lengthy investigation? Or are they just another episode in a never-ending tale of judicial corruption?

U.S. Attorney Alan Bersin, whose office prosecuted the case, says the investigation is over.

"Court corruption was identified and no one -- including judges -- stood above the law," Bersin told reporters. Earlier, he said:

"The judges and attorneys serving the public in San Diego do so with distinction; the very few against whom there is evidence of criminal corruption either are named in this indictment or have already been convicted in a court of law."

The same sentiment was expressed by Hayden J. Trubitt, president of the San Diego County Bar Association:

"We feel there are only a few bad apples, and we're getting rid of them."

Others aren't so sure.

Significantly, they include the odd couple primarily responsible for overhauling the state's Commission on Judicial Performance -- a campaign fueled by the San Diego scandal.

Terry O'Rourke served three years on the Los Angeles Superior Court before returning to his native San Diego as a judge in 1987. His Republican roots include political duty with Spiro Agnew and the late Sen. Thomas Kuchel.

Peter Keane is chief deputy public defender of San Francisco. He's a former president of the Bar Association of San Francisco, former State Bar governor and a leader in the unsuccessful plebiscite to abolish the mandatory bar in California.

What this classic conservative and lion of the left shared was determination to change the way judges are judged.

Their target was the Commission on Judicial Performance, which began looking into the San Diego judiciary in 1991. Other judges were implicated, but the investigation centered on Malkus, Adams and Superior Court Judge Michael Greer, who eventually pleaded guilty to bribery and testified against his former colleagues.

Conducted in strict secrecy, the investigation ended with letters of reprimand to a dozen judges for accepting dinners and golf fees from attorneys.

At the time, Keane decried the "insidious, undemocratic secrecy with which the present commission cloaks its proceedings and blocks all public awareness of dishonest, corrupt and abusive conduct by California judges."

Both criticized domination of the commission by the California Judges Association. O'Rourke said it was "like the fox guarding the chicken coop."

Then they joined forces. Keane got Assembly Speaker Willie Brown, D-San Francisco, and Sen. Quentin Kopp, I-San Francisco, to sponsor legislation putting Proposition 190 on the ballot in 1994.

O'Rourke successfully lobbied Gov. Pete Wilson and Attorney General Dan Lungren. Despite opposition from the CJA, Proposition 190 was approved by voters.

Its major provisions do away with secrecy and give the commission a majority of public members as well as the power to set its own code of judicial conduct.

"No longer can the priesthood decide what judicial ethics are," said Keane.

As for Proposition 190's lasting effects, Keane said it may discourage corruption like San Diego's because "there's a more heightened awareness among judges that they are subject to greater scrutiny."

But he added "it can still happen anywhere" and that he's heard of other counties where corruption may exist. The biggest deterrent, he said, is an honest judge like Terry O'Rourke.

"They ought to pin a medal on that guy," he added.

O'Rourke said the size and diversity of the Los Angeles Superior Court precludes an old boys' network like San Diego's.

"But as long as people are people," he added, "there's a chance for corruption."

How can it be prevented? "Our friends don't come into our court because we're legally and ethically required to recuse ourselves," said O'Rourke. "An honest friend won't appear before an honest judge."