Judge Peter McBrien Commission on Judicial Performance Whistleblower Leaked Transcript of Judicial Misconduct Prosecution - CJP Victoria Henley

Judge Peter McBrien Judicial Misconduct Prosecution Leaked Oral Argument Transcript

Friday Document Dump

Sacramento Family Court News has obtained a confidential court reporter transcript from the Commission on Judicial Performance prosecution of family court Judge Peter J. McBrien. The CJP is the government agency responsible for oversight and accountability of California judges. The document contains the complete 2009 oral argument by CJP prosecutor Andrew Blum detailing McBrien's misconduct in the Carlsson case. 

The published 3rd District opinion in Carlsson - authored by three appellate justices without past employment in Sacramento County Superior Court - "developed a certain notoriety" throughout the state, according to Sixth District Court of Appeal Presiding Justice Conrad L. Rushing. Justice Rushing characterized McBrien's conduct in the case as a "judicial reign of terror." To view Rushing's statements about the Carlsson case, click here. 

Court watchdogs point to the Carlsson case as one example of the preferential treatment family court judges provide attorneys who serve as temporary judges in the same court. Almost every ruling issued by McBrien in the case was in favor of the party represented by judge pro tem attorney Charlotte Keeley, according to the 3rd District. As a result of the appellate opinion, which overturned McBrien's decisions and ordered a new trial, the CJP charged McBrien with multiple violations of the Code of Judicial Ethics, including willful misconduct in office, persistent failure or inability to perform his duties, conduct prejudicial to the administration of justice that brings the judicial office into disrepute, and improper action within the meaning of article VI, section 18 of the California Constitution.

For further information about the McBrien CJP prosecution, and to view the confidential CJP transcript, click Read more >> below...

Sacramento County Superior Court Judges James Mize, Thomas Cecil, Robert Hight and Michael Garcia, and 3rd District Court of Appeal Presiding Justice Arthur Scotland all testified as character witnesses in support of McBrien at the judge's CJP prosecution proceedings. Each judge aware of McBrien's misconduct was required by Canon 3D(1) of the Code of Judicial Ethics to take corrective action. It remains unclear how each rationalized testifying in defense of McBrien as satisfying the legal duty to take corrective action. Sacramento County Bar Association Family Law Section attorneys and family court temporary judges Robert O'Hair, Jerry Guthrie, Russell Carlson, and Camille Hemmer also testified as character witnesses on behalf of McBrien. Under the ethical standards for temporary judges, each attorney aware of McBrien's misconduct also was by law required to take corrective action. The character witness testimony played a significant role in reducing McBrien's punishment and effectively allowed the judge to remain on the bench, according to the CJP. To view the CJP decision imposing punishment against McBrien, click here. 

McBrien reportedly has not disclosed to opposing parties and attorneys the potential conflict of interest which occurs when the judge pro tem attorneys who testified in his defense, or attorneys from their firms, have a case heard in McBrien's courtroom. The failure to disclose the potential conflict is a violation of the Code of Judicial Ethics and other state laws, according to the CJP, Judicial Council, and California Judges Association. 

The notice of formal proceedings charged Judge McBrien as follows:

• Count I(A)(l )-Judge McBrien violated the Code of Judicial Ethics, canons 2A and 3B(7), by abandoning and terminating a trial in a contested marital dissolution matter in the middle of a party's case-in-chief, without giving that party the opportunity to complete the presentation of evidence or offer rebuttal evidence, and denied that party his constitutional right to due process and a fair trial.
• Count I(A)(2)-Judge McBrien violated the Code of Judicial Ethics, canons 2 and 3B(4) by threatening the attorney for that same party in the marital dissolution action with contempt if that party asserted his Fifth Amendment rights and declined to produce documents that were not relevant to the pending matter.
• Count I(A)(3)-Judge McBrien violated the Code of Judicial Ethics, canons 2 and 3E(2) by engaging in embroilment in that same marital dissolution case when he ordered his courtroom clerk to ask the court reporter to prepare a partial transcript of certain proceedings, sent that transcript to the party's employer, and notified the employer that the party failed to disclose certain information on his Statement of Economic Interest, without notifying the parties about these actions and continuing to preside over the dissolution matter.
• Count I(A)(4)-Judge McBrien violated the Code of Judicial Ethics, canons 2 and 3B(4) by being discourteous to the party's attorney in that same marital dissolution matter, and addressing the attorney in a derogatory manner while she was examining a witness.

Click here to view the McBrien CJP transcript in GoogleDocs.

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