You Be the Judge

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The trial of the millennium. The contempt trial of Richard Isaac Fine within the case Marina Strand Colony II vs Los Angeles County and the Shores. It is as if a cop (Judge David Yaffe) gives you (Richard I. Fine) a ticket for reckless driving and the cop is the judge of his action. We analyze the judge's impartiality using the transcript of the linked trial (LASC BS10942) . You be the judge.

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YOU BE THE JUDGE Friday, June 11, 2010

By Professor Daniel Henry Gottlieb Emeritus, Purdue Univerity Leslie Dutton of FullDisclosure.net has done some excellent reporting in the link http://blog.fulldisclosure.net/2010/05/update-jailed-attorney-richard-fines.html . There she reports that Judge Yaffe admitted being troubled by having to appear as a witness in Fine's case where he himself was sitting as the judge. You can read the transcripts of this remarkable trial in the link below. Before you begin, consider the rule which mandates that a judge disqualifies himself from a trial. A judge should recuse himself if " a person aware of the facts might reasonably entertain a doubt as to whether the judge has the ability to be impartial". Judge for yourself if and when you can reasonably entertain a doubt about Yaffe's impartiality. Do not consider the facts that Yaffe ordered Fine to pay the opposing counsel attorney's fees based on an exparte hearing not including Fine and any defense arguments he might advance. And don't consider the merits of Fine wanting to recuse Yaffe based on the fact that Yaffe was taking illegal payments from the County. Instead concentrate on whether Yaffe had the ability to be impartial while judging his own actions. http://www.fulldisclosure.net/Documents/YaffeAdmissionTranscript.pdf On page 1 Yaffe admits he is somewhat troubled by the fact that he will be a witness in a case he is presiding over. But, he says that it appears to him that, given the questions Fine would ask him, that there is no controversy. So he will not be placed in the position having to rule on the issue of his own credibility. On page 2, Yaffe states his position on all the points that he believes Fine wants to ask, Then Yaffe says "By the way..." and implies that all the money the County pays him is

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YOU BE THE JUDGE Friday, June 11, 2010

reimbursed by the State. Fine corrects him. Yaffe seems to agree that Fine is correct, but then seems to back track. Fine corrects him again on page 3. Finally, Yaffe says "All right, whatever". At this point, I would think that at least a few of the entertained doubts would have risen to the reasonable level. If Yaffe thinks that Fine's assertions are wrong, or if he cannot understand the payment situation, then he probably cannot render an informed opinion (an uninformed opinion would be impartial only if it were a random opinion, as in flipping a coin). The 'Whatever' shows that he is not willing to try. On page 4, Yaffe states that he considers the extra payments by the County as his salary. Fine says "but legally speaking ..." . Yaffe interrupts and says "I'm a witness here now, Mr. Fine, so I am not going to give any opinions as to the legality of this stuff". So now it seems that Yaffe is using his power as a judge trying his own case to avoid stating that he knew he was accepting unconstitutionally allowed payments. Recall at this time, the Sturgeon case had been decided by the Appeals Court. So why is Yaffe refusing to understand that he took extra-legal money? At this point it is reasonable to assume that all the entertained doubts are reasonable. Fine swiftly takes Yaffe over the his testimony in which Yaffe admits there is no document stating he was receiving a salary from the County. and then at the bottom of page 4, Fine asks the witness if he knows of any reason the County is paying him extra payments. The Del Rey Shores lawyer objects and the witness sustains the objection on page 6. Fine reminds the witness he is not the judge here. Yaffe replies "Who's to rule on the objection, Mr Fine? You? Fine replies, "It should be by another Judge, your honor". At this point there is no longer reasonable doubt: Yaffe does not have the ability to be impartial. He was rightly troubled at the prospect violating Common Law by presiding over a case about his own actions. But instead of doing the right thing and allowing another judge to hear the case, Yaffe reduces the question to a narrow legal argument about sustaining objections. Then he decides that there will not be any objections because he does not see any controversy in what Fine will ask him. When this position completely crumbles, what does Yaffe say? "All right. What else?" In a sense this point illustrates the times we live in today. In the collapse of our economy or the oil spill in the Gulf of Mexico, there must have been many people who felt troubled by what they were about to do, but they managed to convince themselves that someone else will make the right decision. We will mostly forgive them. But the highest paid judges in the Country should hold themselves accountable to a higher standard.

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YOU BE THE JUDGE Friday, June 11, 2010

Fine proceeds with other items and then in page 6, line 5, Fine begins to ask Yaffe if he had considered the illegality of the Board of Supervisors vote of May 15, 2007 due to illegal contributions by the del Rey Shores to half the voting members. This line of questioning activated objections from the Shores lawyers who seemed to be determined to block that accusation from the record. But Yaffe never received a clear account orally of the illegal vote, due to the disbarment of Fine, and he ignored the objections. Fine eventually got Yaffe to admit that he did not consider the merits of the illegal vote because no one raised any issue as to the legality of the May 15th vote. Fine rested his case with Yaffe's admission: "I doubt it because I don't think anybody raised any issue as to the legality of the May 15th vote". In fact, Yaffe in ordering the recirculation of the Shores' EIR, stipulated that it should be consistent with his order. However, the County and the developers adopted a procedure which refused to consider the cumulative impact of the excess dirt on the environment. An attempt to show this to Yaffe via a written document by a Marina Strand Colony II homeowner was rejected. So here we have a judge who insists that his order be followed with regard to Fine, who was assessed a severe and harsh penalty for a minor technical error by a judge who did not allow him to argue the merits of his case, and insisted on Fine following his court order and sentencing him to jail in a trial in which he judged his own actions; and yet, has no interest in seeing if the recirculated EIR was done consistent with his order. The consequences of these actions against Fine can be found in the flagrant way the EIRs in Marina del Rey have begun to openly incorporate misinformation since the disbarment and jailing of Mr. Fine. They know there will be no legal or civil recourse against their unethical acts.

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