American Flag flying upside down as signal of DISTRESS


"[Observation: everytime I come up with something to justify returning gun to Mr. Smith, judge comes up with a reason not to do it--and he volunteers it and it comes from things he heard in other cases, not from this case, yet he insists he is neutral!]"

Date: Wed, 7 Aug 2002

  Dear All:

  Monday, I received a message from the Honorable David Flinn's clerk that the hearing on Aug 8 would not be on the merits. Instead, it would deal with my request of the judge to please remove himself from the case [on grounds that he is not neutral] and for a continuance.

  Mr. Smith, his parents, and I were in Judge Flinn's courtroom today, timely. The Assist City Atty, Carol Victor was there, too.

  Judge Flinn took the bench. He said he received and partly read my July 30 letter to him, copy to Ms. Victor. Ms. Victor said she did not get her copy.

  Judge described my letter as "inflammatory" [he never said that what was "inflammatory" was wrong] and of the type that would tend to upset many judges. He quoted accurately examples from the letter that he said were "inflammatory". He also referenced some things in the letter that, to me, were a "stretch" because they were out of context, etc. He repeatedly insisted that he is, was, and remains totally objective and impartial; therefore, he would not remove himself from the case due to anything arising from the events at the July 10th hearing. He opined that the question he asked about his prior knowledge was a legitimate question which does not telegraph bias or lack of impartiality on his part. He insisted he has done nothing wrong.

  Judge then said that does not settle the matter because my letter to him was, and is, "inflammatory," which, he said, raises a separate question: should he remove himself because the letter is "imflammatory"? Because he has serious issues with my style of advocacy? Becuase his thoughts of that style of advocacy, in the abstract, could slop over and penalize Mr. Smith? His answer: No! Reasons: If I am "judge shopping" [e.g., trying to get a different judge by provoking him to remove himself for whatever reason] he would not go along with that because that would reward my disfavored advocacy style and penalize Ms. Victor, who has done nothing wrong. He then indicated, vaguely, that, even though my letter was "inflammatory" he remained neutral and can be and will be neutral toward the parties.

  Judge then asked me for my input.

  Ms. Victor stated that she did not know what we were talking about. She stated that she did not receive the copy of the letter to the judge which I mailed to her, Mr.Smith and the judge on the same day. She confirmed the address I used was correct.

  I told the judge that I mailed the same thing to him, Ms. Victor and Mr. Smith at the same time, with ample postage, with addresses checked for accuracy; that I would not communicate with him in writing without copying Ms. Victor and I certainly would not communicate with him and tell him I copied Ms. Victor without actually coping Ms. Victor. Judge said no one was accusing me of doing any of that.

  I then moved on to respond to the judge's remarks. I told him I respected his office, him personally and professionally, and my letter sincerely complimented him in some respects; however, as I understand the law, there exists the following relevant grounds for his removal that are arguably meritorious:

  1. He has personal knowledge of disputed facts in this case;
  2. Judge believes he is not impartial in this case;
  3. Judge entertains doubt as to his neutrality;
  4. Judge reasonably believes that others could reasonably entertain doubt as to whether he is impartial;
  5. In the interest of justice; and
  6. Others can, and do, subjectively reasonably entertain doubt as to his lack of neutrality and that that doubt exists in sufficient measure per an objective standard.
He seemed to agree with me that those are the relevant standards. I said as to No. I, he and I simply disagree. As to Nos. 2-3, the judge is on his honor to blow the whistle on himself if, after examining his conscience, he thinks either of those apply. As to Nos. 2-3, since he said they do not apply, I take him at his word that he is sincere in his belief; however, Nos.4-5 remain. As to No. 4, I think it applies and he and I appear to disagree on that. As to No. 5, the truth is that I, Mr. Smith and his parents, genuinely entertain what I beleive is reasonable doubt that he really is impartial in this case.

  Judge, by body language and statements, seemed to concur with this analysis. He then said, given my remarks, the solution is simple: I make a preemptory challenge of him under a different code section, which, would automatically disqualify him. He said I could do it then, orally, and he would honor it--no fuss.Quick. Done. Over.

  I was surprised when he said that because I think that code section is no longer available because it would not be "timely". Ms. Victor stated out loud what I was thinking. [For the first time, Ms. Victor and I agreed on something.] Judge seemed surprised that she and I agreed and disagreed with him. Judge then backed off that idea.

  I asked the judge this question: without waiving right to later file a formal objection to him [which could force another judge to rule on the objection,] was he and Ms. Victor willing to discuss a pragmatic settlement? To put technical legal issues aside for while and try to resolve the case right then and there? He strongly encouraged that--said he and Ms. Victor tried that two times before I got involved.

  I then discussed reasons why Ms. Victor should simply agree to release the pistol back to Mr. Smith without any prior restraint. I asked judge: if she agrees to that would you go along with it? Judge said: yes!!! [Judge seemed like he wanted to avoid having to decide this case.] [Observation: Does this suggest judge does not think Mr. Smith is a danger? Or is not yet convinced that he is a danger?]

  We discussed reasons for releasing the pistol for a little bit. I pointed out that we are now 7 months post the December 18, 2001 incident and Mr. Smith is still alive and does not need this gun to commit suicide! I got into what Dr. Falls [Smith's mental health expert ] told me about suicides: Judge's idea that once suicidal always suicidal is wrong; most true "suicidals" have no long term future plans because they know they will check out soon; they do not put things in motion; Smith does not fit that pattern. Smith is fighting for an intangible principle, out of deep conviction, because he cares about the future and plans to live long enough so that the future is important to him.

  Judge came back with: he is not a licensed mental health expert, however, he has heard such experts say some "suicidals" are like what Dr. Falls said but others are like peaks and valleys--their propensity for suicide comes and goes, and that is something he has to consider about Mr. Smith. [So, because of this, Mr. Smith's pistol should be destroyed? "Shall not be infringed." was suppose to eliminate such considerations and command that all doubt be resolved in favor of individual liberty.]

  [Observation: everytime I come up with something to justify returning gun to Mr. Smith, judge comes up with a reason not to do it--and he volunteers it and it comes from things he heard in other cases, not from this case, yet he insists he is neutral!]

  Judge indicated he needed to wrap the hearing up because of another case. People were coming into the courtroom, apparently for that case.

  I told the judge the following:

  Point No. 1: Since CA Gov. Grey Davis had gone on record stating that the Leg had to implement his will and judges who did not implement his will would not get promoted and no judicial candidate who refused to implement his will will get appointed to the bench, I was concerned about the judge being unduly influenced by Davis. I started getting into the impropriety of Davis engaging in judicial intimidation/tampering. Judge quickly started to scowl and looked somewhat angry/displeased. Judge volunteered that Gov. Davis is a personal friend--the two are Regents with the Univ of CA and he sees/talks to Davis fairly regularly. Judge also volunteered that he "agreed" with me that Davis' remarks were "ill-advised" [judge's words]. Judge said he hoped Davis did not mean what he said, and, if he did, Davis was wrong. Judge volunteered that I need not worry about him being intimidated by Davis. Judge said he was "too old" to be promoted and was very content with staying where he is in the judicial hieracrchy.

  I asked judge: in light of your characterization of my letter to you being "inflammatory," please be totally candid with me: Can you be/will you be 100% neutral and objective toward Ms. Victor, myself and Mr. Smith? Judge insisted he could be and will be--that he is trained to be able to do that and will do that.

  Judge said he has heard many [hundreds?] of gun confiscation/destruction cases and sometimes he orders them returned and sometimes he orders them destroyed.

  Judge volunteered: as of now, the only reason to destroy the gun is this: Ms. Victor had one cop say under oath that Mr. Smith told him that he was thinking about commiting suicide back on Dec 18, 2001. Judge said, [parapharase] "But I have not heard Mr. Smith's case. And that was over 6 months ago. If the evidentiary hearing resumes, he will be most interested in this: What is Mr. Smith's mental state now--date of that hearing? Is Mr. Smith dangerous then? Would it be 'dangerous' to return the pistol to Mr. Smith then?" Judge said he was of that mindset because that is what the statute focuses on: "Would it be dangerous to return the pistol"?

  Point No. 2: I suggested we schedule an evidentiary hearing for last half of Sept. Reason: Give Ms. Victor and I time to try to reach a settlement; time to subpoena witnesses and for witnesses to clear their calendars; maybe have a settlement conference with the judge or another judge, etc. Also said I wanted the hearing to be on a Mon, Wed or Friday to accommodate a prof expert, and would strongly prefer a day where we could go for 4-6 hrs if necessary so the case does not get broken up in 1-2 hr segments over multiple days.

  Judge was 100% accommodating on all these requests.

  Next hearing date: Sept 30 [suppose to be a Monday]; early start--high probability of being able to devote 5-6 hours to the case.

  I asked judge if he would order that Ms. Victor have Mr. Smith's Colt Commander in court, empty, at the next evidentiary hearing? Ms. Victor said: no--she did not want to touch it, handle it, be responsble for it. I said a law enforcement officer could bring it and give it to the bailiff. Judge said we should discuss it and try to reach an agreement, and, if that fails, contact him and he would decide. [I want the pistol there so Mr. Smith's firearm experts can evaluate it and state their opinion as to its current reasonable fair market value--in case Ms. Victor will not stipulate to that value. This is foundational to the 5th Amendment argument: want to destroy the gun for an alleged public purpose, fine--just pay Mr. Smith its reasonable fair market vale, as commanded by the 5th Amend and its CA analog.]

  In the alternative, judge understands I have not waived my right to file a formal objection to him remaining on the case.

  Judge and I always spoke calmly and in low voices. No obvious anger, etc. [I was making a sustained effort to not throw one or more verbal thunderbolts.]

  Hearing lasted about 20-30 minutes.

  Afterwards, I approached Ms. Victor and asked her if she was willing to discuss settlement right then, outside. She said: no--she did not want me, Mr. Smith and his parents ganging up on her! I said we would not do that and just she and I could talk for a little bit. She said: no, she wanted to read the letters [one to judge/copy to her and separate one to her] before we talked. She said she would contact me after reading the letters.

  As I walked freely in the court corridor I was pleased that I left Judge Flinn's courtroom a free man, not held in contempt, not on my way to jail.

  I still entertain serious doubts as to Judge Flinn's bias or lack thereof. However, while that doubt is real, marshalling sufficient evidence to satisfy another judge that, per an "objective" test Judge Flinn is bias could be difficult.

  What is the best argument/hardest evidence that, objectively, Judge Flinn is bias? Be specific. [Note: I do not have to prove actual bias, only that there is sufficient evidence, objectively, that a reasonable person with knowledge of these facts could entertain a reasonable doubt about Judge Flinn's bias or lack thereof.]

  Please share your most candid comments. What do you suggest? Recommend? Not file a formal objection to judge? File a formal objection? Why?

  As to Judge Flinn's characterization of my letter being "inflammatory," I recall that a local city councilmember described my proposed Bill of Rights Day Resolution as being "inflammatory." When I discussed that with Aaron Zelman, Founder, Jews For The Preservation of Firearms Ownership, Mr. Zelman said, "He never said you were wrong!" True! Mr. Zelman also said: [paraphrase] the Founders/Framers were "boners"; to the King, they are hard assess--real bad assess who meant what they said, they made their "inflammatory" Declarations stick--they would not compromise, but today's politicians are too much into diluting the original Constitutional Rule of Law.

  Well stated, Mr. Zelman!!!

  Without meaning any offense and without being egotistical, I believe the judge, or anyone, would have a hard time proving that anything I said in my letter to him or to Ms. Victor is objectively verifiably "wrong".

--Peter Mancus

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