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Judge Joseph O’Flaherty has been branded a repeat offender. On Tuesday, Sacramento’s Third District Court of Appeal angrily referred the Placer County Superior Court jurist to the state’s Commission on Judicial Performance for possible discipline after finding a second instance where he advised prospective jurors to conceal any racist feelings. This only a year after the appeal court had reversed O’Flaherty in People v. Mello, 97 Cal.App.4th 511, for doing the same thing. In fact, O’Flaherty had already gained some notoriety in that mistakes of this type are now called Mello error. “In Mello, we assumed this ‘astonishing’ error was a ‘well-intentioned but misguided’ incident,” Justice Fred Morrison wrote. “It now appears Judge O’Flaherty has a practice of instructing jurors to hide invidious bias.” Justices George Nicholson and Richard Sims III concurred that O’Flaherty’s actions were improper, but Sims opposed reversing the judgment on the basis that the defense lawyer never objected to O’Flaherty’s instruction at trial. “Our Supreme Court,” Sims wrote, “has uniformly held that, in order to preserve a problem with voir dire on appeal, a defendant must have objected to the improper voir dire in the trial court.” All three justices, however, were upset that O’Flaherty, while following guidelines for instructing jurors on racial bias, had gone too far. In Mello, he had told prejudicial jurors they should “lie about it under oath and make up other reasons to be excused.” Tuesday’s case was tried before Mello was issued. According to the justices, O’Flaherty didn’t use the word “lie” in a fraud case against Iranian Mohammad Ali Abbaszadeh but, instead, advised that he didn’t want any biased jurors on his panel, and told them to “answer my questions in such a way that you get off in some other way. Does everybody understand that?” The appeal court justices said O’Flaherty’s suggestion was perfectly clear. “We think the venire, indeed, understood,” Justice Morrison wrote, “that Judge O’Flaherty was inviting prospective jurors to do ‘whatever’ was necessary to get off the jury ‘even if . . . you have to answer my questions in such a way’ as to get off other than by admitting to harboring racist feelings, i.e., to lie.” Jurors convicted Abbaszadeh, who had bilked residents out of money, of thefts by false pretense and securities fraud. O’Flaherty granted probation. The appeal court justices ordered a new trial under a different judge and called the “needless expense” of at least two retrials “appalling.” “It is now difficult to conclude that Judge O’Flaherty’s conduct was ‘well-intentioned’ when it was not the product of an off-the-cuff decision during one trial, but was apparently his practice,” Justice Morrison wrote. “It is not for us to determine whether Judge O’Flaherty’s motivation was benign or malignant, but his conduct raises serious questions which must be answered.” In what may be a first, the justices ordered that the opinion be sent to the CJP, the state agency charged with investigating and disciplining judges. The 56-year-old O’Flaherty, who sits in Roseville, could not be reached for comment Tuesday. A former deputy district attorney in Placer and Imperial counties, the graduate of San Diego’s California Western University School of Law was elected to the bench in 1988. He was unopposed in a 1994 re-election bid. Sacramento solo practitioner Christopher Wing, who represented the defendant, couldn’t be reached. But Sacramento-based Deputy Attorney General R. Todd Marshall, representing the state, said he has no ill feelings toward O’Flaherty. “The judge made a mistake,” he said. “I think his motivations were good. I just think he went about his desire not to have anybody with racial bias on the jury the wrong way.” The case is People v. Abbaszadeh, C036850. The full text will appear in Thursday’s California Daily Opinion Service.

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