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A March 2 Recorder article correctly “Stipulated: Alameda Superior Court Judge Robert Freedman is an outstanding judge” [ "No Honest Mistake"]. However, it went on to castigate not only Judge Freedman, but the two California appellate court justices and one superior court judge who served as special masters. I have known Judge Freedman for a number of years. I write this letter in support of Judge Freedman. I understand that the California Supreme Court specially selected three California judges as special masters for the task of judging a peer. The special masters heard several days of testimony, including two days of cross-examination of Judge Freedman, admitted thousands of pages of documents into evidence, read hundreds of pages of briefing, heard oral argument and considered applicable law. In none of the four reported Supreme Court and two Commission [on Judicial Performance] decisions that considered charges against judges who executed salary affidavits during periods of delay was the judge found to have engaged in willful misconduct or to have acted in “bad faith.” Judges, of course, are duty-bound to consider, and follow, precedent, especially the rulings of the state Supreme Court. In its thoughtful and thorough 25-page Findings of Fact and Conclusions of Law (“FFCL”), the special masters addressed the specific facts of Judge Freedman’s case, weighed the evidence that they heard, and applied the facts to the governing precedent. The masters’ concluded that Judge Freedman did not act in bad faith (FFCL at 2, 16, 19). They also found his delayed rulings “do not impugn the judge’s integrity, independence, or impartiality,” which is the applicable standard for determining bad faith conduct by a judge. (FFCL at 8). Indeed, they noted that certain “tardy rulings were due to Judge Freedman’s taking courthouse tasks upon himself while attempting to improve the existing system.” (FFCL at 19). As the special masters found, “It is clear that Judge Freedman is respected as a thoughtful, intelligent, compassionate, and hard-working jurist. The unfortunate reality is that extra assignments and responsibilities tend to gravitate to the most able and the most conscientious judges, which without serious dispute, this record indicates is what happened here.” (FFCL at 23) The special masters further found that Judge Freedman “explained, credibly, that he was not consciously aware of the late cases when he signed the salary affidavits.” (FFCL at 15). And they found that the last alleged infraction was in 2004, when Judge Freedman reported himself to the Commission [on Judicial Performance]. (FFCL at 21) Determining the credibility of witnesses is nearly always the unassailable province of the trier of fact. The judge or jury who hears the witness, observes his temperament and body language on direct and cross-examination, decides whether that witness is telling the truth and whether he should be believed. In this case three experienced jurists found Judge Freedman credible in his mea culpa, and although they chastised him for violating rules, they found under the totality of circumstances that he was a well-intended, dedicated public servant who made a mistake. An appellate court should not substitute its judgment regarding the credibility of witnesses for the judgment of a trial court. After further rounds of briefing, Judge Freedman will again be called to another hearing, this time before commission members who will give the special masters’ factual determinations and legal conclusions due deference in arriving at a just result. Given the groundswell of support for Judge Freedman by those who know him and recognize his worth to his community and to the courts of California, I hope that more people who regard Judge Freedman well will make their voices heard so he can continue doing his job for the people of California.

James J. Brosnahan San Francisco

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