When Superior Court judge Terry Byron O'Rourke was allowed a glimpse at the accusations against him, he admits he gulped.
"The candidate is viewed as having one of the worst temperaments among San Diego judges," the State Bar paper said. "[He] has a reputation for being mean-spirited and vindictive...has not provided fair and impartial justice...outbursts of anger...slamming books and other materials on the bench...insults attorneys...loud, confrontational behavior."
There was worse. The Commission on Judicial Nominees Evaluation of the State Bar of California, usually called the Jenny Commission (after the initials JNE), cited criticisms of sexism and racism. "The candidate's ill temperament and abusive behavior are disproportionately visited upon women.... He has been heard to make racially and gender-sensitive remarks such as 'The quality of the bench has declined since governors have started pandering to women and minorities'; 'Mexicans are the dregs of society'; and 'We have to deal with all of this minority law practice.' ... Candidate's behavior problems have become worse in the last decade."
O'Rourke, 51, a Superior Court judge for the past 15 years (11 in San Diego), was appearing before the commission earlier this month after his longtime friend Governor Pete Wilson nominated him to the 4th District Court of Appeal.
Being buddies with the governor didn't help. At the meeting, even fellow judges weighed in against him. Retired State Supreme Court Justice Armand Arabian wrote in a letter to the evaluation committee that O'Rourke showed "a quality of aggression, a hatred of women and [a predisposition for] the delivery of scurrilous accusations against members of the bench."
"Sexism, racism? Impossible!" roars O'Rourke's friend Leslie Abramson, the lawyer celebrated for her defense of Eric Menendez. "I never saw a shred of it. A client that I had in front of him was a Mexican-American, and he treated him with utmost respect, in fact he married him [officiated at his wedding]. And as far as gender-bias: I don't believe it for a second. If ever a type of woman is going to draw fire it's someone like me who's extremely aggressive, and he treated me splendidly."
When Wilson nominated O'Rourke, the commission sent out 1563 questionnaires seeking the California legal fraternity's opinion on him. They promised anonymity to all. They received 263 "knowing responses." The accusations all came anonymously by this means, following a system meant to encourage frank assessment of judicial appointees. On the basis of those replies, said the Jenny Commission, "at least 75 percent of the commissioners voting find the candidate Not Qualified."
"I'm not privy to how many people made the comments," says O'Rourke, "or whether they were made at all. There's a total lack of due process. So I don't know how many they are, or who they are. It's shadow-boxing!"
Not all accusations are politically motivated, he believes. "As a judge you make a certain number of people unhappy with you because of the outcomes of cases, irrespective of how well behaved you are, how good a judge you are. There isn't a trial judge anywhere who doesn't have some disgruntled parties or attorneys who have been in front of him. I would just say there's an enormous disparity between the claims that are made in the Jenny report as opposed to [my] record."
With allies like Abramson, and, more importantly, Governor Pete Wilson, O'Rourke is perhaps less vulnerable to the judgment of "Jenny" than many judgeship hopefuls. Still, the commission's conclusions were totally untrue, he says, and devastating to him. He brought in seven witnesses, including a Latino judge, a retired Asian-American jurist, a female attorney, and an African-American public defender. All insisted O'Rourke supports women, minorities, is polite to a fault, and is devoid of bias.
Could such malice prevail? And why so much venom directed at one of the county's most respected judges?
O'Rourke's friends say it's because of one thing: he is the judge who was largely responsible for exposing San Diego's Superior Court judges James Malkus, G. Dennis Adams, and Michael Greer. The three were convicted two years ago of accepting gifts from prominent downtown lawyer Patrick Frega in return for giving him favorable treatment in their courtrooms. Their convictions rocked San Diego's legal community. "Over a period of many years, in cases involving dozens of litigants and millions of dollars," prosecutors said recently, "Frega, Adams, and Malkus exploited and dishonored the system of justice that it was their obligation to defend." (Adams and Malkus are free on bail pending appeals on charges of conspiracy and mail fraud. Greer pled guilty to bribery and turned state's evidence.)
Judge O'Rourke won't specify his role in bringing the judges down. He says all interactions between federal investigators and sources of information were anonymous.
Yet many in the legal profession consider that O'Rourke, in blowing the whistle on his fellow judges, had betrayed his fraternity.
"They said Terry was 'divisive among judges,'" says Peter G. Keane, chief deputy public defender in San Francisco, who spoke up for O'Rourke at the hearing. "Well, yeah, he was. He was divisive among San Diego judges in the same way that Serpico was divisive among New York City police officers: he was honest! And he refused to stay silent about corruption and bribery and unethical and illegal conduct in the San Diego justice community. And by that token he was divisive. Well, more power to him. God bless him!"
O'Rourke and his speakers denied every accusation against him. His friend for three decades, Pete Wilson, stood by his nominee. And the three Republican-appointed judges on the commission -- California Chief Justice Ronald George, Attorney General Dan Lungren, and Daniel Kremer, presiding justice of San Diego's 4th District -- appointed him to the appeals court anyway. But to O'Rourke, the shocking accusations are an indication that many San Diego judges and lawyers haven't forgiven him.
"I've always freely admitted that I'm very controversial," says O'Rourke, sitting among computers and boxes in his new fifth-floor office in Symphony Towers. "[I'm] viewed as a maverick, because of the activities I've undertaken."
O'Rourke says he first read about the gifts-for-favors accusations in a 1991 Reader story. "When this 'gift' thing first appeared in your newspaper, I was astounded. I remember it very well. And I remember a judge, who's an old friend, still on our court: we had a judges' meeting of some sort, and we were out in the parking lot, and he took me aside and he said, 'Terry, everyone says you're talking about the gifts and that it's wrong, and I'm telling you as an old friend: shut up! Don't talk about it anymore.' I got warned from day one. I think they went out of their way to intimidate as many judges and lawyers as they could into keeping their mouths shut."
O'Rourke didn't. "Sure, I knew what I was getting into. I don't even think there was a decision process. Right is right, wrong is wrong. Why in the world should judges be involved in misconduct? They're not supposed to be. You have a duty as a judge to report it when you encounter it."
And, says O'Rourke, it wasn't just the three indicted judges. "Let's put it this way: other [San Diego judges] are out there who the U.S. Attorney believed had been involved in conduct that amounted to substantial misconduct, but not to a level he thought was worth indicting. That's what he said publicly.
"Most of the judges are very honest and honorable people. It was only really when you sat in the civil division downtown that these things were simply too obvious to not deduce. Not necessarily bribery, but substantial misconduct. You couldn't sit there eight or nine years ago and not know that certain lawyers were able to select their trial judge. There are chummy relationships, which in my judgment would have dictated recusal. And there was a generally low level of awareness of what a judge's ethical obligations were.
"I think most of the problem has been focused downtown with a small number of law firms and lawyers and judges over the years. When you're downtown, that's where you can control things."
O'Rourke says what happened after the judges were busted speaks volumes about San Diego lawyers' and judges' attitudes towards ethics.
"When Judge Greer resigned, he was honored by a roast at Sea World. I'm told that over 900 prominent lawyers attended. He was welcomed to JAMS [the privately run Judicial Arbitration and Mediation Services/Endispute]. Overnight! The purported reason of his resignation was bad health. But apparently he had a miraculous weekend recovery and materialized at JAMS.
"And when Judge Adams was subject to his removal proceedings, there were organized efforts on the part of prominent lawyers to collect letters and prepare an amicus brief to the Supreme Court to come to his rescue.
"So here was a situation where San Diego judges who were under investigation for misconduct could resign, go over to JAMS...basically still handling San Diego Superior Court work. Surely there must be better rewards for misconduct than this kind of enrichment. But this is what the situation was. To the extent that prominent downtown attorneys have spoken out on the corruption issue, it has been to embrace and to defend the three bribe-takers."
"I've heard it repeated over and over again," says San Francisco attorney Peter Keane, "that [in] the San Diego legal community and the San Diego trial courts, things are a lot looser than they are, say, in Los Angeles, San Francisco, Sacramento. It's because of tradition. A 'wink-wink, nudge-nudge' way of doing things in the legal community apparently is a long and a strong one. Terry came in and said, 'This is wrong, I'm not going to be any part of it,' and he started complaining about it publicly, and that was heresy for him to do that! Heretics get burned at the stake, and that's what they tried to do to Terry.
"What isn't told is why [O'Rourke] got re-appointed to San Diego," says Leslie Abramson. "None of the stories talked about the fact that I believe it was his mother died, and he had to move back to San Diego to take care of his disabled brother. Now, what kind of person is that, folks?
"And that's why he left [LA, in 1987]. He was doing fine here, people loved him. Nobody was affidaviting him. The defense bar liked him. The prosecution bar liked him. And he went down there -- that small town, full of...with its reputation of corruption between attorneys and judges, and all of a sudden he becomes this controversial figure. He was anything but controversial here."
Peter Keane says Judge O'Rourke committed two sins that took him out of San Diego's judicial brotherhood. "One was blowing the whistle on corrupt judges in San Diego. The other was he backed Proposition 190, which I wrote. That reformed the Commission on Judicial Performance [a judges' oversight body], from having been this secret whitewashing cover-up agency that allowed judges to get off the hook for all sorts of terrible things, to an accountable body with only a minority of judges on it."
But is San Diego any worse than L.A.? Definitely, says Abramson. "San Diego was always viewed as a rather small town where there was a very social, interactive community between the lawyers and the judges. L.A. is enormous. There are hundreds of judges here. There's no way a few lawyers could have influence here. And yet that was the reputation San Diego had."
O'Rourke says the reputation was richly deserved. He cites such accepted practices as bench-bar golf tournaments. "The same lawyer paid for judges' green fees for years, week-in, week-out. It adds up. It wasn't a secret, it was just accepted."
And no, size doesn't count.
"There are lots of smaller communities that aren't like this," says O'Rourke. "I always found that Portland and Seattle were highly ethical. Honolulu was a highly ethical place. Cleveland. The things that would make a man a pariah in Portland would probably not even raise an eyebrow in San Diego. When I was up in Vista, I found that to be just a wonderful court. There is no impropriety or suggestion of impropriety among the bench and bar, and yet they get along. The judges attend the dinners. It is possible to have appropriate bench-bar relations without sleaziness.
"You see, I have a real simple attitude about this: why in the world should any litigant or his lawyer have the fears and apprehensions that people used to have about getting assigned to a courtroom in San Diego? As to whether the trial was already rigged? Why in the world should you have to worry about that? What a terrible thing! And [that] was at one point a very legitimate concern. It's the court I'm on! And I just found it intolerable. But [if you speak out], there's a payback, and that's the reason most people opted out of saying anything publicly or doing anything."
Are things better since he blew the whistle? Yes, says O'Rourke. "I think it would be safe to say that there has been a pretty substantial change in the way business is being done in the courts and by the lawyers. On the whole there certainly doesn't appear to be any outright bribery going on here."
But Leslie Abramson believes the hostility O'Rourke faced at his hearing is a sign that the war is not over. "Obviously what's going on is because Terry is candid, which is not welcomed, particularly among right-wing politicians like [retired judge] Arabian. Obviously Terry didn't, as we say in Yiddish, kish Arabian in tuches farren — didn't kiss his ass."