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JUDGE RETIRES AMID DISCIPLINE PROBE SACRAMENTO — David Wasilenko, a Yuba County Superior Court judge facing disciplinary action from the Commission on Judicial Performance for ticket fixing, decided this week to retire rather than continue with oral arguments scheduled before the commission. Wasilenko, 58, has been on medical leave since May, said his attorney, James Murphy of San Francisco. Murphy declined to describe the nature of Wasilenko’s illness, which a local Yuba County paper called a “stress attack.” “The likelihood of him coming back to work off medical leave was remote,” Murphy said. Wasilenko’s retirement took effect Tuesday. A judge since 1985, Wasilenko may be eligible for 75 percent of his salary when he turns 60, said Darin Hall, a spokesman for the California Public Employees’ Retirement System. But the CJP could still rule on Wasilenko’s case, which could affect his eligibility for benefits, said Hall. “It’s really hard to tell,” he added. The CJP accused Wasilenko of 10 counts of misconduct, saying he had engaged in ex parte communications with acquaintances charged with traffic offenses and disposed of their cases “often without requiring the individual’s presence in court.” Among the acquaintances were Wasilenko’s wife’s cousin and the parents of a minor accused of driving with an open alcoholic beverage. Murphy said the CJP’s case against his client is a strike at small-town judges who traditionally know everyone and deal informally with the public. “Frankly, we don’t need a Los Angeles model in Modoc County or Sonora or Jackson,” said Murphy. “I guess the cautionary tale to our rural judges is not to engage in ‘robing room justice.’ If you do, the commission will come looking for you and may very well impose discipline.” CJP Director Victoria Henley said Wasilenko had received a private admonishment for similar conduct in 2003, and said the commission was recommending removal from office. — Jill Duman DEFENSE OPENS IN TRIAL OF FORMER TYCO EXECS NEW YORK — Delivering opening statements Thursday in the retrial of former Tyco International Ltd. executives L. Dennis Kozlowski and Mark Swartz, defense lawyers took square aim at the prosecution’s assertions of theft. “You tell me how you steal when you sign a promissory note and repay it,” Kozlowski’s lawyer, Stephen Kaufman, said to the jury. Kaufman said his client had done so when he borrowed company funds to buy $12 million in artwork. “If that’s theft, I need a new form of Webster’s,” the lawyer said. Charles Stillman, the lawyer for Swartz, presented the same chart that Assistant Manhattan District Attorney Owen Heimer had used in his opening to detail the major payments in controversy. The prosecutor’s chart had been labeled “thefts.” Stillman’s version had the word “alleged” added to it. “There’s no theft until you folks call it theft,” he told the jury. Kozlowski, Tyco’s former chairman and chief executive officer, and Swartz, the former chief financial officer, face charges of grand larceny because they allegedly stole $150 million in unauthorized bonuses and loans. The executives’ first trial ended in a mistrial in April. Justice Michael Obus of Manhattan Supreme Court, who oversaw that trial, is also presiding over the retrial. Kaufman and Stillman said their clients had legitimately received massive bonuses, which they attributed in large part to the enormous growth of Tyco’s revenue and profits during their tenure. — New York Law Journal

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