UPDATE: Stanislaus criminal court judge under prosecutors’ scrutiny moving to civil court

03/12/2014 5:25 PM

03/13/2014 1:23 PM

A Stanislaus County judge who has been disqualified by prosecutors more than 500 times since October has been reassigned to civil court.

Court Executive Officer Rebecca Fleming said the Stanislaus County District Attorney’s Office’s actions to move its cases out of Judge John Freeland’s courtroom had nothing to do with his transfer to civil court, and that anyone who says that is uninformed.

She said Freeland’s previous experience as a civil case attorney makes him perfect to replace retiring civil court Judge Hurl Johnson.

“This is strictly because of Judge Johnson’s retirement,” Fleming said this week.

On Thursday morning, Judge Ricardo Córdova spoke in support of his colleague, telling The Bee that Freeland does plenty of research before making a ruling and works hard to be fair to both sides.

“Judge Freeland is one of the most conscientious judges we have,” said Córdova, the court’s former presiding judge. “He does his best to do the right thing. This criticism of him is unwarranted.”

Defense attorney Frank Carson, a candidate for Stanislaus County district attorney, said Freeland’s transfer is the result of District Attorney Birgit Fladager’s criticism of the judge.

“It’s a direct result of this kind of war on Freeland,” Carson said. “I don’t think it was for any other reason than that.”

Fladager has said Freeland had upset her prosecutors for too long, so she ordered them to reject Freeland in all new criminal matters, which is an attorney’s right to be exercised only when cases begin. This week, she said her office’s response to Freeland’s performance might have played a role in the decision to move him out of criminal court.

“It may have been a factor, but they certainly need to fill that civil courtroom and I don’t think they have another judge as qualified as (Freeland) is to take that position,” Fladager said. “Seems like a very good solution for all concerned.”

The changes will be made sometime in the next two months, and Johnson’s final day on the bench has not been determined.

Fladager is seeking re-election against Carson, who is her only challenger on the June ballot.

Carson, a staunch critic of the District Attorney’s Office, said the prosecutors boycotting Freeland are producing a long-lasting negative effect. He suggests that other judges will be less likely to rule against prosecutors, fearing they might also be transferred, as Freeland was.

“It has a chilling effect; I don’t know how else to put it,” Carson said. “It’s just them being bullies.”

He said the state Commission on Judicial Performance should investigate the closed-door meetings Fladager had with court officials requesting Freeland’s removal.

“This is an effort by the district attorney to co-opt and intimidate the judiciary, and sadly it’s succeeding,” Carson said.

Judges decline comment

Some legal opponents were outraged in early November when Fladager’s stance against Freeland seemed to persuade the presiding judge to reassign him away from criminal cases.

Presiding Judge Loretta Murphy Begen later reversed her decision, allowing Freeland to continue handling criminal cases. The reversal was done in the court’s best interest, according to Begen. The judges declined to comment for this story.

Fladager said defense attorneys often use this legal maneuver to move cases away from judges.

“It is their right to do so when they feel it is in their client’s best interest, as it is for the prosecutors,” Fladager said. “We just don’t make an issue of it.”

The district attorney has refused to discuss specifics about her concerns with Freeland, but she has told The Bee that it’s the judge’s competency in handling criminal matters that has raised her concerns.

Fladager’s prosecutors have continued to “paper,” or disqualify, the judge, even this month, court officials said, but it did become less frequent in February.

Fleming said Judge Johnson informed the court of his intent to retire several weeks ago.

Johnson began his career as a judge in the family law court in September 1994, after working as an attorney for the Stanislaus County District Attorney’s Office and in the Modesto City Attorney’s Office. In 1996, he was assigned to an open courtroom that handled criminal, civil and family law cases when needed.

In 2005, he was assigned to handle only criminal court cases. Since 2009, Johnson has handled civil and probate cases.

Fleming said Judge Nan Jacobs will replace Freeland, and court officials are awaiting an appointment by the governor’s office to replace Judge Susan Siefkin, who retired in late November. Jacobs has handled criminal cases since early January, when she moved over from juvenile court to switch spots with Judge Valli Israels.

The judges are working together to create a smooth transition in the next few months, wrapping up some of their cases before the switch.

Freeland keeps murder case

Freeland will only retain one criminal case once he moves to civil court – the Mark Edward Mesiti murder case. Court officials said Freeland has to stick with the Mesiti case because the defendant faces the death penalty if convicted.

Mesiti has been indicted in the sexual assault and death of his daughter, Alycia Mesiti. The teenage girl was reported missing in August 2006. Her body was discovered March 25, 2009, in the back yard of an Alexis Court home in Ceres where Mesiti used to live. Mesiti and the rest of his family had moved to Los Angeles, where he was convicted in 2011 of manufacturing methamphetamine.

The murder case remains stalled as prosecutors await an appellate decision on Freeland’s ruling to remove prosecutor Annette Rees from Mesiti’s case. Carson said he believes Rees’ removal from the case is what spurred Fladager to urge her prosecutors to boycott Freeland.

The district attorney has said she raised concerns about Freeland in 2012, long before the ruling in the Mesiti case. Fladager had suggested to court officials that Freeland could benefit from some mentoring or judicial training to handle criminal cases, but that she didn’t see any improvement.

She said this week that she is pleased Freeland is moving to civil court, where he was practicing law when he became a judge.

“He will be returning to work in an area of the law in which he excelled,” Fladager said. “His presence on the civil bench will no doubt prove to be a significant benefit to the litigants in those courtrooms.”

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