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A lawyer for a Placer County judge facing possible discipline after being accused of misconduct for telling prospective jurors to hide racial bias says his client is getting a raw deal. San Francisco’s James Murphy, who specializes in representing judges, said late Wednesday that Superior Court Judge Joseph O’Flaherty was only trying to ensure that minority defendants were treated fairly. He also accused Sacramento’s Third District Court of Appeal of unjustly ripping O’Flaherty for something he rectified long ago. “It seems rather harsh and unfair that the appellate court would make the comments it did in regard to Joe O’Flaherty, who was just trying to make sure, in a county with few minorities, that a minority defendant received a fair shake,” the Murphy, Pearson, Bradley & Feeney partner said. “He acknowledges now that what he did was not right.” On Tuesday, the Third District in People v. Abbaszadeh, 03 C.D.O.S. 1647, accused the 56-year-old O’Flaherty, on the bench since 1988, of having a practice of instructing jurors to conceal “invidious bias” during jury selection. The justices were angry because they felt O’Flaherty had encouraged jurors to lie under oath about their biases and the court — in People v. Mello, 97 Cal.App.4th 511 — had admonished O’Flaherty last year for the same thing. The court ordered its opinion in Abbaszadeh sent to the Commission on Judicial Performance, the state agency that investigates wrongdoing by judges, for possible disciplinary action against O’Flaherty. Murphy, who was retained by O’Flaherty Wednesday, said the problem with the Third District’s reasoning is that its ruling in Mello was issued after the trial in Abbaszadeh. Therefore, at the time of trial O’Flaherty had no way of knowing that his voir dire instructions were inappropriate. “His intentions were all in good faith in both cases,” Murphy said, “but clearly the judge has not engaged in this method of voir dire since the Mello decision came down.” Murphy, who has advised O’Flaherty not to talk publicly about the ruling for now, suggested that Mohammad Abbaszadeh’s appellate lawyers “may have got wind of Mello” and used it to their benefit. Neither of those lawyers — Sacramento solo practitioner Christopher Wing and Mill Valley solo Eric Multhaup — returned calls seeking comment. In Mello, the defendant was a black woman accused of aiding and abetting a robbery, while in the recent case the defendant was an Iranian accused of bilking friends and relatives out of money. In Mello, the Third District noted Tuesday, O’Flaherty had flatly instructed jurors to lie under oath if they held racial prejudices, while in Abbaszadeh he advised jurors wanting off jury duty to do “whatever” to answer his questions in such a way that didn’t reveal bias. The appeal court said that was the same as telling the jurors to lie. In dissent, Justice Richard Sims III agreed that O’Flaherty’s instructions were improper, but said the verdict should not have been reversed because no one objected to the judge’s voir dire at trial. He said that by deciding the issue, the majority was allowing the defense to engage in “consummate sandbagging.” On Wednesday, Murphy said O’Flaherty is taking the Third District’s action hard. “He prides himself on running a fair courtroom,” Murphy said, “and that’s all he’s ever tried to do.” To make matters worse, he said, O’Flaherty is powerless to challenge the court. “While Joe O’Flaherty was vilified by the appellate court, he has no standing to seek review,” Murphy said. That would be up to the attorney general’s office, which lost when the Third District sent the case back to Placer County to be heard by a different judge. Sacramento Deputy Attorney General R. Todd Marshall, who represented the state in Abbaszadeh, said Thursday he hasn’t decided yet whether to recommend his office seek rehearing by the Third District or review by the California Supreme Court. But, as he did Tuesday, Marshall again defended O’Flaherty. “Judge O’Flaherty had a good intention in mind of not having racially biased persons end up being on a jury,” he said, “but he just went about it in an erroneous and incorrect way. I don’t think he had any nefarious intent or any designs to harm the judicial process.” Neither Placer County Superior Court Presiding Judge Alan Pineschi nor Placer County District Attorney Bradford Fenocchio could be reached for comment. Placer County Public Defender Leonard Tauman would only say that O’Flaherty’s jury selection methodology was “poor” in that “it’s inappropriate to tell jurors to lie.” “My understanding,” Tauman added, “is that he no longer does it.”

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