Santa Cruz attorneys confirm Superior Court judge’s misconduct

SANTA CRUZ — Challenges are rising for an embattled Santa Cruz judge reassigned to dependency court after she disrupted a homicide trial with an emotional confession of misconduct as a slew of attorneys revealed their years-long boycott of her courtroom.

Among her critics are seven active and former attorneys who pledge never to bring another case before Superior Court Judge Ariadne Symons after they, or their clients, claim to have experienced unfair treatment. All of them said the judge should be removed from office.

Symons is the state’s first arbiter this year to receive severe public censure by the Commission on Judicial Performance — the state oversight for judges. The worst punishment a sitting judge can receive before removal from elected office, in Symons’ case, was negotiated in the form of a plea deal.

“Is she fit to be a sitting judge? Absolutely not,” said Ed Newman, a Stanford Law grad practicing real estate law in Capitola. “The judge has a lot of power in a jury trial. The jurors think they walk on water.”

He filed a previous complaint with the commission, which privately admonished Symons for “creating the appearance of embroilment” in his case for asking a plaintiff a question.

In 2015, Symons was reprimanded for “creating the appearance of bias against transients” and publicly disclosing facts of a case at sentencing.

It was among eight acts of misconduct for which the commission publicly denounced Symons in May.

Criminal defense attorney Lisa McCamey has been “disqualifying Judge Symons from (her) cases for years” amid concerns about bias. And she isn’t alone.

Symons is unfit for the bench — “and I do not say that lightly,” McCamey said. “I do know that several members of the defense community have also been disqualifying her from their cases for years due to issues they have had with her, as a prosecutor and a judge, and more attorneys have started disqualifying her since the censure.”

McCamey was not surprised by the commission’s ruling.

“It was yet another shocking and disappointing list of incidents regarding Ms. Symons’ questionable behavior that I and other members of the criminal justice community have witnessed and known about for years,” she said.

Defense attorney Doug Fox has been critical of Symons since she sought the district attorney’s seat in 1999 but was not appointed. He said he was disturbed to learn the commission also admonished Symons for running a red light and helping her husband with a court filing with intentions to have the citation dismissed.

“She should be recalled because, I think, rather than allowing her to stand for reelection, we should take a stand as a community to demand unquestioned ethics from our judges, not people who fix their own traffic tickets,” Fox said. “I just think the Commission on Judicial Performance has just caught up with her.”

Gerald Bowden, a retired attorney, said he appeared before Symons years ago and was shocked by her threats to hold him in contempt of court.

“In 50 years of law practice, I’ve never seen a judge act in such a prejudicial manner,” Bowden said. “She needs to be removed.”

His was among three known cases in which Symons threatened attorneys with her power to hold them in contempt  of court — acts deemed disrespectful to the bench. The reasons varied: One attorney cited the wrong case in a court document before correcting the mistake, another asked a plaintiff a question in a civil trial and a third litigant offered assistance to counsel but was told — and ordered by a bailiff — to move to the gallery with the audience.

The fallout

Repercussions from Symons’ censure are unfolding in Superior Court. Two public defenders last month tried to disqualify her from a homicide trial in which she became “teary-eyed, emotional and visibly upset” disclosing part of her punishment by the commission.

An out-of-county judge must determine whether Symons is fit to preside over the pending case against two defendants accused of killing a 24-year-old man on the San Lorenzo River’s west levee in August 2016.

Symons declined to recuse herself and deemed the public defenders’ motion to disqualify “unverified.” She denied allegaions of bias against a defendant, the Public Defender’s Office or its attorneys working the trial — now in its second month.

Attorneys Cherish Om and Jerry Vinluan claim Symons did not disclose most of her admonished cases — one involved their employer’s firm — in court. The attorneys also contest Symons’ timing for the disclosure: She signed the reprimand April 19 but mentioned on May 10 only one case — for which she was punished after telling a Latino defendant not to drink “40s” in front of his children.

Symons said she cannot comment on a pending case but said she maintains a good relationship with the Santa Cruz Public Defender’s Office.

“I believe I have a good relationship with most of the attorneys in the that office,” Symons said. “They continue to appear in front of me on a daily basis in a variety of serious cases.”

Back to Watsonville

As motions pile up in the murder proceedings, a presiding judge on July 22 assigned Symons to Juvenile Dependency and Small Claims Court in Watsonville. It wasn’t the first time she was moved to a Watsonville courtroom, where she has presided in family law cases.

Presiding Judge Paul Burdick issued a statement Thursday: “I am tasked with overseeing the efficient and effective delivery of court services to the people of Santa Cruz County. Therefore, I am making the following judicial assignment changes.”

Judge John Salazar will absorb felony cases in Symons’ Department 7 courtroom in Santa Cruz and Judge Rebecca Connolly will take over domestic violence, impaired driving and misdemeanor cases after working in South County.

Symons’ supporters — numerous attorneys, courtroom clerks, trial witnesses, government officials and friends — say she suffered excessive censure by the commission. The agency in April was scrutinized for apparent “weaknesses in its oversight,” according to the California State Auditor.

The Alliance of California Judges, an advocacy group, released a statement accusing the commission of lacking independent oversight of its cases. “What remains, however, is a system under which the commission as a whole performs the functions of investigator, prosecutor and judge,” according to the alliance.

To be judged

A similar argument in the early 2000s targeted another agency reviewing Symons. The state bar of Judicial Nominees Evaluation Commission, or “Jenny” commission, helps the governor to choose judges by investigating candidates. That commission deemed Symons unqualified for the bench in spring 2006.

Symons appealed the Jenny commission’s decision but lost and derided the lack of explanation by a “secretive” authority she considered “irrelevant to voters.”

At the time, she claimed that “no local prosecutor or defense attorney has been found qualified by the JNE Commission in the past 10 years.”

Last year, the JNE commission rejected 7% of applicants.

Symons maintained her aspirations in a fierce campaign, raising more than $100,000 in 2007-08, when she won election to the bench in Santa Cruz County. Her first assignment was in misdemeanor court.

That redemption trailed years of work in courtrooms on both coasts and the nation’s capital.

In the early 1980s, Symons served as assistant U.S. attorney in Washington D.C. and in 1987-88, she was a special trial attorney for the U.S. Justice Department Organized Crime and Racketeering Section. Federal prosecutors told the Sentinel those jobs would be prominent assignments. Symons lists those positions in an unfulfilled 1999 bid for former District Attorney Art Danner’s seat he left when he was appointed judge.

The district attorney race was met with criticism. Santa Cruz County Board of Supervisors, who appointed Ron Ruiz to the post, received a letter from Fox pleading against Symons’ campaign: “It is a position requiring unquestioned ethics, honesty and fairness,” he wrote.

‘Baloney’

Symons has a reputation for being outspoken and ambitious. After election to the bench in 2008, she was cleaning out her desk in the District Attorney’s Office and telling stories about her 12 years as prosecutor in Santa Cruz. She recalled how the area’s “nutball factor” made work interesting and, at times, challenging, the Sentinel reported.

Symons’ conduct– in separate occasions in separate capacities — have been questioned and overruled by appellate courts in California.

As a prosecutor in Orange County, Symons was accused of lying during a child-molestation trial in 1989. The 4th District Court of Appeal in 1991 reversed the conviction and cast doubt about a conversation Symons said she had with a defense attorney in the case.

“This appears to be baloney, pure and simple,” the appeals court ruled.

Symons left the Orange County District Attorney’s Office in 1990 when she married and moved out of state, the Orange County Register reported.

‘Still missing’

Symons also has a history of negotiating results: Last year, she let a convicted defendant skip four years in prison for drug treatment if he agreed not to appeal botched proceedings or seek new trial.

“The court indicated that if the client withdrew the motion for a new trial and waived his appellate rights — which is rarely done in this county — then he would receive a probationary sentence,” Santa Cruz public defender Micha Rinkus said. “He took the deal.”

Rinkus’ client was convicted of two counts of violation of a protective order with an act of violence on May 3, 2018, but the case was fraught with six judicial errors implying bias, according to the Commission on Judicial Performance.

Symons erred by telling only the prosecution about a juror’s note regarding the relevant meaning of violence; this happened a day before the man was convicted. Rinkus learned about the note by talking to jurors after trial.

“I immediately voiced my concern to Judge Symons in chambers and she indicated that my only recourse was to file a motion for new trial, which I did,” Rinkus said.

But there was no “physical note” in the court file, Rinkus said. “There is no recording or transcript of the question being asked and answered. The note is still missing.”

What makes the case unusual — besides the elusive juror’s question and note — is how the judge negotiated the defendant’s reduced sentence in exchange for the defendant agreeing not to appeal the judge’s discretion.

Waivers of appeal are typically negotiated by the prosecution and defense. The U.S. Supreme Court, in February 2018, ruled that certain defendants have the right to appeal specific issues on appeal even if they waived their appellate rights.

Rinkus declined to comment further but said she has not appeared before Symons “in any significant fashion since.”

‘No excuse’

In another case brought before the Commission on Judicial Performance, former attorney Margeret Kinda represented herself but several attorneys assisted. The nature of the case was questionable, according to members of the opposing party in the case, but Kinda asserts she won her appeal and did not consider her case at all questionable.

And the commission still reprimanded Symons for telling Kinda she had a fool for a client.

Bowden was among the attorneys who tried to provide assistance in Kinda’s civil case; it was his first appearance before Symons.

“I said my name and told her I was a member of the bar,” Bowden said. “She said go behind the bar. I thought ‘She couldn’t really mean that.’ “

The bailiff escorted Bowden to the gallery. “There can be no excuse for denying a litigant assistance of counsel,” Bowden said. “Even if I was just there to keep track of papers for Margaret.”

Bowden, who retired in 2017, said Symons “on numerous occasions answered her own rhetorical questions about facts.” He said it was a form of offering evidence.

“It is no business of the judge to suggest what the evidence is to the jury,” Bowden said.

‘Atmosphere of intimidation’

Newman first encountered Symons in 2013 during a civil case in Santa Cruz.

He asked a plaintiff about a previous case, but “the judge exploded” and ordered him not to ask such a question she thought was a form of evidence.

In 2013, the commission issued a warning — an advisory letter — to Symons for serving as an auctioneer at a fundraising event for court advocates of abused children. Her new court assignment will place Simons in cases involving abused children six years later.

“She created an atmosphere of intimidation in the courtroom,” Newman said. After 50 years of practicing law, he has never had any other “problems” with another judge. He will never appear before her again, he said. Attorneys have one challenge per case they can use to disqualify a judge outright.

Appellate intervention

Another appeals court determined in 2012 that Symons made an error by trying to sentence a man already serving probation for domestic violence. Fox, who said his case did not start in her court, appealed the flawed attempt to change a piece of history.

The challenge only arose when Fox brought his client back to court to request the felony to be reduced to a misdemeanor for good behavior, when Symons tried to impose a more harsh sentence.

Symons tried to claim her right to correct a clerical error, but the court determined hers was a “judicial mistake.”

Fox said he believes Symons, in this case, “didn’t know the law.”

She imposed a sentence she did not expect to result in a reduction to a misdemeanor.

It was the kind of demeanor Fox said should not burden the bench. He, too, won’t let his clients appear before Symons.

“I will never let her hear a case, ever again,” Fox said. “I would not let my client let her have any responsibility over any aspect of his case.”

A sitting Superior Court judge can be recalled, or removed, by a petition of valid signatures at least 20 percent of the last recorded vote for that office, according to the Secretary of State.

Symons last was elected in 2008 by 24,024 votes, according to Santa Cruz County Elections. It would require a petition of at least 4,805 signatures to recall her from office.

Symons is up for reelection in 2020.