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Thursday July 2, 1998

California judicial action
'crystal ball' is thrown out

By Howard Hobbs, General Editor Daily Republican Newspaper

WASHINGTON DESK - In the Los Angeles County Superior Court, judge Bruce Dodds was being investigated by the California Commission on Judicial Performance on allegations of judicial misconduct in his Santa Barbara, California court in October 1994.

At the time of the investigation, an ABC News story on Prime Time Live profiled judge Dodds and two other judges in a segment entitled Who's Judging the Judges.

The program was timed for broadcast on television stations across the nation during the Commission's October investigation. According to a source close to one of the show's producers, the purpose of the ABC News segment was to examine critically the disciplinary processes for judges who have been accused of misconduct, using three individual judges as examples. Although it purported to focus on the disciplinary process, much of the segment was devoted to detailing the misconduct itself.

The Commission eventually found that judge Dodds had engaged in misconduct and recommended that he be censured publicly, and that Dodds obstructed a law enforcement investigation, that Dodds had "... frequently given the appearance of rudeness and prejudgment in his handling of cases" and that Dodds made an offensive remark in chambers about two lawyers who had appeared before him." [Dodds, 906 P.2d at 1260. California Supreme Court.]

The ABC News segment on judge Dodds depicted him as "tough," "short," "abrupt," "direct," "rude," "impatient," and "gruff" who "...uses a crystal ball in deciding cases.'

In an effort to clear his name and unsully his reputation, judge Dodds then sued ABC News for defamation of his character, alleging that ABC News implied in its news program that he was not fit for judicial service. Dodds asserted that ABC News acted with actual malice in broadcasting numerous comments regarding his performance as a judge and that the ABC News broadcast portrayed him in a false light as a criminal and as someone who is unfit for judicial service.

That program was broadcast on television stations across the nation in October 1994. According to one of the show's producers, the purpose of the segment was to examine critically the disciplinary processes for judges who have been accused of misconduct, using three individual judges as examples. Most of the segment was devoted to detailing judicial misconduct.

The format of the ABC News television show used a news reporter who interviewed various people while combining film clips of interviews and narration and shaping it into a metaphor of a news story. Typically, ABC News uses several such segments in each program aired.

In the program focussing on judge Dodds, ABC news anchor Diane Sawyer introduced the segment that gave rise to this case by explaining that fellow ABC News reporter Cynthia McFadden was going to report on "...judges whose conduct seems downright scandalous."

Immediately following this introduction, the segment cut to clips of three individuals commenting on the behavior of unidentified judges; the first individual described a judge, shortly to be revealed as judge Dodds, as "...a court jester...anything but a respectable superior court judge," while the next two individuals explained that they had been victims of other judges' sexual misconduct.

McFadden elaborated on the theme of the show: "...Last year, 12,000 complaints were filed against state court judges, yet more than 85 percent of these complaints were dismissed with little or no investigation...[W]e decided to take a closer look."

McFadden introduced law professor Geoffrey Hazard, a highly regarded expert in the area of legal ethics. Hazard was then quoted as saying, "...there's a troubling tension between having an independent judiciary and reviewing the judges' behavior...[T]he problem of who judges the judges is, particularly in a democracy, perhaps as difficult a question as there can be."

McFadden noted that many complaints against judges are frivolous, and that "...[t]he trick is to identify the serious ones." The segment then featured stories on three different judges from different parts of the nation.

That segment first told the story of a judge in Indiana who had been accused of sexually molesting juveniles and was awaiting trial on other criminal charges. In that report, a young man explained how he had met the judge when he was in court as a juvenile offender and how the judge had taken an interest in him.

Approximately two years later, the youth said, the judge began demanding sex from him. McFadden reported that although the judge had also been accused of similar conduct with other young men who had been in the juvenile justice system, nothing happened until the youth featured on the program helped police arrange a sting operation. She stated that at the time of the broadcast, the judge was facing trial on charges of solicitation of a prostitute and drug dealing.

Following that story, which concluded with shots of the judge being led off in handcuffs, the segment turned to Judge Dodds. McFadden introduced that detail by concluding

    "In the past four years, I've covered about 250 trials, most of them gavel to gavel. I've often been struck by the way that judges justify their decisions on thorny points, often with wisdom drawn from experience, or with a superior grasp of the law. But never the way a judge in California has been accused of."

This portion of the segment cut first to a news clip of Dodds denying any wrongdoing. Then McFadden explained that "[f]or the past several years, a stream of complaints" had been lodged against Judge Dodds concerning his lack of "judicial temperament."

The segment then featured clips of interviews with people who had dealt with judge Dodds and reports by McFadden regarding the allegations of misconduct against the judge. McFadden stated, for example, that a former court clerk had declared in a sworn statement that Judge Dodds would read newspapers and magazines while he was on the bench, and that he had screamed and spit in court.

Two litigants who had appeared in judge Dodds's courtroom also recounted their negative experiences. Cindy Hart, whose divorce case was heard by the judge, stated that he had acted disrespectfully towards her and that when she took the witness stand to testify, he had said: "All I have to do is look at her to see she has psychological problems."

The report then focused on another litigant, Christine Johnson, who had appeared in front of judge Dodds during the preceding year. Johnson and her son had sued the Catholic church, alleging that a priest had sexually molested the son. She described how the judge belittled their claim during a settlement conference and how he told her that because there were only two incidents of sexual molestation, it was "no big deal, and juries don't like to hear about things that aren't very juicy."

McFadden then explained how judge Dodds had pressured Johnson into accepting a low settlement offer. According to Johnson, judge Dodds kept a crystal ball on the conference table in his chambers, where the parties engaged in settlement negotiations. After telling her what he thought her case was worth, judge Dodds pressed a button on the crystal ball. The crystal ball responded "yes, " confirming Dodds' settlement figure, and the judge then said to Johnson "There it is. That's it. That's what you get. " McFadden stated that "[l]awyers, litigants, and [Dodds's ] former clerk all say Dodds often used the crystal ball to support his decisions."

McFadden unsuccessfully attempted to interview judge Dodds about the allegations and the segment included footage of the judge refusing to talk with her. Following this clip, McFadden explained that judge Dodds had refused the interview because "...state law prevented him from talking about the case." She then stated that ABC News personnel had actually seen the crystal ball on a table in judge Dodds's chambers.

In this action the appellate court affirmed on May 27, 1998 that the district court properly dismissed judge Dodds' claim for damages against ABC News and its reporters.

The Dodds case clearly illustrates the principle of law that protects a news reporter's First Amendment freedom of speech and press in reporting news stories about the fitness of a particular judge to hold a judicial position, when made in the absence of malice.

[Source: Dodds v. Commission on Judicial Performance, 906 P.2d 1260, 1265 (Cal. 1996).]

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