Candid Justice

Who's trying to smear Judge O'Rourke?

O'Rourke says he first read about the gifts-for-favors accusations in a 1991 Reader story. "When this 'gift' thing first appeared in your newspaper, I was astounded. I remember it very well. And I remember a judge, who's an old friend, still on our court: we had a judges' meeting of some sort, and we were out in the parking lot, and he took me aside and he said, 'Terry, everyone says you're talking about the gifts and that it's wrong, and I'm telling you as an old friend: shut up! Don't talk about it anymore.' I got warned from day one. I think they went out of their way to intimidate as many judges and lawyers as they could into keeping their mouths shut."

O'Rourke didn't. "Sure, I knew what I was getting into. I don't even think there was a decision process. Right is right, wrong is wrong. Why in the world should judges be involved in misconduct? They're not supposed to be. You have a duty as a judge to report it when you encounter it."

And, says O'Rourke, it wasn't just the three indicted judges. "Let's put it this way: other [San Diego judges] are out there who the U.S. Attorney believed had been involved in conduct that amounted to substantial misconduct, but not to a level he thought was worth indicting. That's what he said publicly.

"Most of the judges are very honest and honorable people. It was only really when you sat in the civil division downtown that these things were simply too obvious to not deduce. Not necessarily bribery, but substantial misconduct. You couldn't sit there eight or nine years ago and not know that certain lawyers were able to select their trial judge. There are chummy relationships, which in my judgment would have dictated recusal. And there was a generally low level of awareness of what a judge's ethical obligations were.

"I think most of the problem has been focused downtown with a small number of law firms and lawyers and judges over the years. When you're downtown, that's where you can control things."

O'Rourke says what happened after the judges were busted speaks volumes about San Diego lawyers' and judges' attitudes towards ethics.

"When Judge Greer resigned, he was honored by a roast at Sea World. I'm told that over 900 prominent lawyers attended. He was welcomed to JAMS [the privately run Judicial Arbitration and Mediation Services/Endispute]. Overnight! The purported reason of his resignation was bad health. But apparently he had a miraculous weekend recovery and materialized at JAMS.

"And when Judge Adams was subject to his removal proceedings, there were organized efforts on the part of prominent lawyers to collect letters and prepare an amicus brief to the Supreme Court to come to his rescue.

"So here was a situation where San Diego judges who were under investigation for misconduct could resign, go over to JAMS...basically still handling San Diego Superior Court work. Surely there must be better rewards for misconduct than this kind of enrichment. But this is what the situation was. To the extent that prominent downtown attorneys have spoken out on the corruption issue, it has been to embrace and to defend the three bribe-takers."

"I've heard it repeated over and over again," says San Francisco attorney Peter Keane, "that [in] the San Diego legal community and the San Diego trial courts, things are a lot looser than they are, say, in Los Angeles, San Francisco, Sacramento. It's because of tradition. A 'wink-wink, nudge-nudge' way of doing things in the legal community apparently is a long and a strong one. Terry came in and said, 'This is wrong, I'm not going to be any part of it,' and he started complaining about it publicly, and that was heresy for him to do that! Heretics get burned at the stake, and that's what they tried to do to Terry.

"What isn't told is why [O'Rourke] got re-appointed to San Diego," says Leslie Abramson. "None of the stories talked about the fact that I believe it was his mother died, and he had to move back to San Diego to take care of his disabled brother. Now, what kind of person is that, folks?

"And that's why he left [LA, in 1987]. He was doing fine here, people loved him. Nobody was affidaviting him. The defense bar liked him. The prosecution bar liked him. And he went down there -- that small town, full of...with its reputation of corruption between attorneys and judges, and all of a sudden he becomes this controversial figure. He was anything but controversial here."

Peter Keane says Judge O'Rourke committed two sins that took him out of San Diego's judicial brotherhood. "One was blowing the whistle on corrupt judges in San Diego. The other was he backed Proposition 190, which I wrote. That reformed the Commission on Judicial Performance [a judges' oversight body], from having been this secret whitewashing cover-up agency that allowed judges to get off the hook for all sorts of terrible things, to an accountable body with only a minority of judges on it."

But is San Diego any worse than L.A.? Definitely, says Abramson. "San Diego was always viewed as a rather small town where there was a very social, interactive community between the lawyers and the judges. L.A. is enormous. There are hundreds of judges here. There's no way a few lawyers could have influence here. And yet that was the reputation San Diego had."

O'Rourke says the reputation was richly deserved. He cites such accepted practices as bench-bar golf tournaments. "The same lawyer paid for judges' green fees for years, week-in, week-out. It adds up. It wasn't a secret, it was just accepted."

And no, size doesn't count.

"There are lots of smaller communities that aren't like this," says O'Rourke. "I always found that Portland and Seattle were highly ethical. Honolulu was a highly ethical place. Cleveland. The things that would make a man a pariah in Portland would probably not even raise an eyebrow in San Diego. When I was up in Vista, I found that to be just a wonderful court. There is no impropriety or suggestion of impropriety among the bench and bar, and yet they get along. The judges attend the dinners. It is possible to have appropriate bench-bar relations without sleaziness.

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