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Having been scolded twice in published opinions for encouraging potential jurors to lie about any racial bias, a Placer County judge got a third rebuke Wednesday from the Commission on Judicial Performance. The judicial watchdog issued Judge Joseph O’Flaherty a public admonishment, saying there was “clear and convincing” proof that the judge’s instructions during voir dire “constitute conduct prejudicial to the administration of justice that brings the judicial office into disrepute.” O’Flaherty escaped a finding of willful misconduct, which could have led to his removal from the bench. He was charged last December in connection with two cases involving non-white defendants. O’Flaherty had told jurors that if they harbored racial bias but didn’t want to disclose it in front of others, they should make up another reason to be excused from jury service. The judge, on the bench since 1988, had asked the commission to conduct a full hearing rather than acquiesce to the public admonishment the commission had originally proposed. At that hearing in August, O’Flaherty argued that his mistake amounted to legal error, rather than misconduct, and was motivated by a desire to remove jurors who might be too embarrassed to come forward with their prejudices. O’Flaherty’s attorney, James Murphy, was out of town and had not read the commission’s decision on Wednesday, but said he suspected the judge would be disappointed by the outcome. “It was a well-intentioned mistake,” the Murphy, Pearson, Bradley & Feeney partner said. “If you went out on the street and asked if this was conduct unbecoming to a judge, people would say, ‘No, this is a guy trying to be fair.’” A panel of special masters — First District Justice Sandra Margulies, Sacramento County Judge Michael Garcia and Glenn County Judge Donald Byrd — accepted that O’Flaherty had acted in good faith, but said that by telling jurors to lie, he “not only condoned violating the law, he directed it.” The discipline case stemmed from a pair of rulings from the Third District Court of Appeal that took the judge to task for the instructions. However, the first appellate rebuke, People v. Mello, 97 Cal.App.4th 511, came down after he’d already given the instruction in a second case, People v. Abbaszadeh, 106 Cal.App.4th 642. The commission’s chair, Vance Raye, is a justice on the Third District and recused himself from the discipline case.

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