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Very few people want to admit they harbor any racist feelings. They’re not something we take pride in or encourage, but they stubbornly lurk below the surface, whispering and nudging. Come on, with nobody else listening, can you honestly say there’s not a smidgen of racism anywhere in you? That every ethnicity, every lifestyle, every cultural eccentricity finds an equal foothold in your heart? If you can, you should apply for sainthood. If you can’t, you probably don’t feel like confessing your reluctant biases in open court to a jury panel composed of strangers you’re going to offend — and may encounter later in the parking lot. Judge Joseph O’Flaherty of Placer County Superior Court has received harsh treatment from Sacramento’s Third District Court of Appeal for, in essence, providing a non-threatening way to get biased people off his juries. According to the justices, O’Flaherty told potential jurors in a fraud case against Iranian Mohammad Ali Abbaszadeh that he didn’t want any biased jurors on his panel, and advised them to “answer my questions in such a way that you get off in some other way. Does everybody understand that?” Yes, the judge was, as two of the three justices irately pointed out, encouraging panelists to be less than honest. But human nature being what it is, the judge’s reasoning seems pretty clear. He knew it was highly unlikely that a panelist would raise his hand and say, “Yes, Your Honor, I don’t much like Iranians (or Asians, or whites, or whatever) and I have a strong suspicion that I couldn’t be fair to any of them. May I please be excused?” One can see the Third District’s point in remonstrating with the judge. But is a punitive approach really appropriate? The justices have taken the highly unusual step of referring O’Flaherty to the Commission on Judicial Performance, in part because they say he erred again, only a year after the appeal court reversed him in People v. Mello, 97 Cal.App.4th 511, for doing the same thing. O’Flaherty’s attorney, James Murphy of San Francisco’s Murphy, Pearson, Bradley & Feeney, says the judge realizes that what he did was inappropriate, but adds that it was well intentioned. The justices sure didn’t see it that way. “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.” Murphy points out that Abbaszadeh went to trial “well before” the Third District issued its opinion in Mello, so “to take such a harsh response to what Judge O’Flaherty was trying to do — to ensure a fair trial for a minority defendant in a very heavily Caucasian area” — was unfair. “It would be one thing if after the Mello decision Joe O’Flaherty continued to conduct voir dire the way he did in Mello,” said Murphy. “That would be something that should upset an appellate court. But he didn’t.” Murphy added that the judge hasn’t engaged in that kind of voir dire since the Mello decision came down . One wonders whether the justices have other issues with O’Flaherty, because, as Justice Richard Sims III pointed out in his dissent, no one objected to the judge’s voir dire at trial. Sims wrote that, by deciding an issue first raised on appeal, the majority was allowing the defense to get away with “consummate sandbagging.” It’s easy to huff in righteous indignation about encouraging potential jurors to lie, but the judge’s ultimate goal was the right one: keeping biased jurors off the panel. Everyone edits themselves during the jury selection process. O’Flaherty knows that, and the justices probably do too. So why punish him for trying to do something about it?

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