whistleblower leak: judge valeriano saucedo commission on judicial performance prosecution...

1 COMMISSION ON JUDICIAL PERFORMANCE

2 ---oOo---

3 -----------------------------------

4 IN THE MATTER CONCERNING

JUDGE VALERIANO SAUCEDO

5 CJP NO. 194

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12 CLOSING ARGUMENT BEFORE SPECIAL MASTERS

13 SAN DIEGO, CALIFORNIA

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15 April 27, 2015

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17

18

19 REPORTED BY: SANDRA LEE HOCKIN

20 CERTIFIED SHORTHAND REPORTER NO. 7372

21

22 UCCELLI & ASSOCIATES

Certified Shorthand Reporters

23 1243 Mission Road

South San Francisco, California 94080

24 Tel: 650.952.0774 Fax: 650.952.8688

www.UccelliReporting.com

25 Silicon Valley: 408.275.1122

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CLOSING ARGUMENT BEFORE SPECIAL MASTERS 04-27-2015 2 of 22

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1 PARTICIPANTS:

2

3 Special Masters:

4 Presiding Special Master

5 Honorable Judith L. Haller

6 Court of Appeal, Fourth Appellate District,

7 Division One

8

9 Honorable Becky Lynn Dugan

10 Superior Court of California, County of Riverside

11

12 Honorable Louis R. Hanoian

13 Superior Court of California, County of San Diego

14

15 Examiner

16 James F. Harrigan, Esq.

17 Victoria Henley, Director-Chief Counsel

18 Office of Trial Counsel

19 Commission on Judicial Performance

20

21 Respondent's Counsel:

22 Randall A. Miller, Esq.

23 Caroline van Oosterom, Esq.

24 Miller LLP

25

2

1 April 27, 2015 11:58 A.M.

2 ---oOo---

3 SPECIAL MASTER HALLER: We are here in the

4 Commission on Judicial Performance inquiry concerning

5 Judge Valeriano Saucedo. I'm Justice Haller, presiding

6 over these proceedings. To my right is Judge Hanoian,

7 and to my left is Judge Dugan.

8 Counsel, I'm going to ask you to make

9 appearances for the record so that we have everything on

10 the record.

11 Mr. Harrigan, starting with you, sir.

12 MR. HARRIGAN: Thank you.

13 SPECIAL MASTER HALLER: And I'm just going to

14 ask you also to come to the microphone here.

15 MR. HARRIGAN: James Harrigan; I'm the examiner

16 in this case. And Victoria Henley from the Commission is

17 with me.

18 SPECIAL MASTER HALLER: All right.

19 And, Mr. Miller, sir.

20 MR. MILLER: Good afternoon, Your Honors.

21 Randy Miller for the respondent, Judge Valeriano Saucedo,

22 as well as Caroline van Oosterom.

23 SPECIAL MASTER HALLER: And the record shall

24 reflect also that Judge Saucedo is present with us. All

25 right.

4

1 I N D E X

2

3 Page

4 EXAMINER'S CLOSING ARGUMENT 9

5 RESPONDENT'S CLOSING ARGUMENT 32

6 EXAMINER'S REBUTTAL 79

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3

1 Counsel, I think we should have the record

2 indicate why we were -- we started an hour later than we

3 anticipated. Certainly none of us thought that the first

4 flight out of the San Francisco/Oakland area would be

5 canceled, and that's why Mr. Harrigan was not able to be

6 here by 11:00. Fortunately he was able to get on the

7 10:00 clock flight and has literally come straight from

8 the airport. So I appreciate, Mr. Miller, your

9 flexibility on this. And with that, we will be ready to

10 proceed.

11 Counsel, the judges and I had an opportunity to

12 chat before we began this morning. We are going to

13 conduct this in a very traditional closing argument

14 setup. We will -- absent something extraordinary

15 happening, we will not be interrupting you in your

16 closing arguments. However, at the end of your closing

17 arguments, if there is something that we feel needs to be

18 covered that has not been, there may be questions from

19 the bench. There may not be.

20 So, Mr. Harrigan, when you finish yours, we will

21 ask questions.

22 Mr. Miller, then, after your closing, we'll ask

23 any questions.

24 But we thought that would be a better way to

25 proceed than interrupting you so that your train of

5



1 thought is what it has been. All right? Okay.

2 Then, Mr. Harrigan, if you would like to begin.

3 MR. HARRIGAN: Justice, before I start, there's

4 a small housekeeping matter regarding redacted exhibits

5 that I need to provide --


7 MR. HARRIGAN: -- if I might do so.

8 SPECIAL MASTER HALLER: Yes. We received an

9 indication that there was some concern that personal bank

10 account numbers, et cetera, are in some of the exhibits.

11 MR. HARRIGAN: That's correct. And I think also

12 there might be additional personal information; phone

13 number -- other phone numbers or Social Security numbers.

14 I didn't do the redaction, so I can only represent that

15 they were done carefully and according to the discussions

16 between counsel.

17 SPECIAL MASTER HALLER: All right. So am I

18 correct in understanding, then, that Mr. Miller has seen

19 these, the redactions are acceptable to him and that

20 these will substitute for the original exhibits that are

21 in the hands of the Commission?

22 MS. VAN OOSTEROM: Yes, Your Honor.

23 SPECIAL MASTER HALLER: All right. Thank you.

24 And --

25 MR. HARRIGAN: May I?

6

1 MR. HARRIGAN: That's correct, Justice.

2 For example, the examiner's exhibits, I believe,

3 were 52.


5 MR. HARRIGAN: And in the redacted ones, it

6 begins with 8, and then it goes on to include several

7 others. So not all 52 are represented in here.

8 SPECIAL MASTER HALLER: Understood.

9 MR. HARRIGAN: Which I think I should have said

10 it that way to begin with.

11 SPECIAL MASTER HALLER: That's okay.

12 And as I understand it, the original exhibits

13 are in the hands of the CJP, and they too will receive

14 redacted copies?

15 MR. HARRIGAN: Yes.


17 MR. HARRIGAN: Yes. I think, actually,

18 Janice Brickley had received it as well today.

19 SPECIAL MASTER HALLER: All right. And,

20 Mr. Miller, is this acceptable to you, sir, on behalf of

21 Judge Saucedo?

22 MR. MILLER: It is. It's consistent with our

23 understanding.

24 SPECIAL MASTER HALLER: All right. And again,

25 Counsel, thank you for taking care of that so that today

8

1 SPECIAL MASTER HALLER: Certainly.

2 And, Mr. Harrigan, if you would identify those

3 for the record so we know that what we're supposed to

4 receive.

5 MR. HARRIGAN: Justice, I have not seen these

6 until this morning.

7 SPECIAL MASTER HALLER: That's fine.

8 MR. HARRIGAN: However, each binder, or packet,

9 contains redacted examiner exhibits as well as respondent

10 exhibits, which I believe reflect the exhibits that had

11 been introduced and moved into evidence.

12 Without having a chance to compare them, I would

13 ask only that the exhibits that you do have, to the

14 extent that they are not reflected in these, that you

15 already have those into evidence, I think it's important

16 that nothing be missing. And I haven't had a chance to

17 compare.

18 SPECIAL MASTER HALLER: If I understand what

19 you're saying then, there may be pages from any number of

20 the exhibits. It's not as if it's one exhibit or two

21 exhibits. It may be several.

22 So the packets that you're giving us, we are to

23 take each page and use the redacted copy as opposed to

24 what was admitted into evidence when we were all together

25 in Fresno; is that correct?

7

1 we can put our attention on the closing arguments. All

2 right. Good.

3 If you would like to distribute those, that's

4 just fine.


6 SPECIAL MASTER HALLER: All right. And this is

7 very helpful because there's a table showing us what's

8 been redacted on both the examiner exhibits and the

9 respondent exhibits. All right then.

10 Mr. Harrigan, when you're ready to proceed. And

11 please make yourself comfortable at the podium. There is

12 a button that will adjust it to your height.

13 MR. HARRIGAN: I thought it was the microphone.

14 SPECIAL MASTER HALLER: No. It's the whole

15 podium.

16 MR. HARRIGAN: I always wanted to be taller.

17 SPECIAL MASTER HALLER: All right. Just make

18 yourself comfortable.

19 ---oOo---

20 EXAMINER'S CLOSING ARGUMENT

21 MR. HARRIGAN: Good morning, Justice Haller,

22 Judge Dugan and Judge Hanoian. I thank you for the

23 opportunity to present remarks to you at this time.

24 As you know, there is a process before a

25 post-hearing brief to be submitted, and that presentation

9



1 will largely treat many of the issues that I have -- I am

2 not going to discuss today. However, I thought that

3 there were some points that should be made, and I hope to

4 do so.


6 MR. HARRIGAN: This is a case that involves a

7 lot of paperwork and a lot of documents. And in

8 preparing for this argument, it became clear to me that

9 this case might be analogized to a painting. The

10 painting that I have thought about is a painting by a

11 Belgian artist, Rene Magritte. He is one who often

12 presented a male figure in a black bowler hat. One of

13 his famous ones involved a green apple in the place of a

14 face.

15 The painting that I'm thinking about is called

16 The Blank Signature or The Rider. And it's a painting of

17 a woman on a horse, a chestnut horse, a beautiful horse,

18 riding through a scene of a forest with very vertical

19 trees. And you may be familiar with this.

20 At first glance, it's an ordinary, normal scene.

21 But the more you examine it, the more you view it

22 critically; you find that it's not at all normal. There

23 are elements of that that jar the senses and that don't

24 add up with our initial impression.

25 And this case is much the same. The more

10

1 Now, in a single week, there might well be,

2 conservatively, 100 instructions from the judge to his

3 clerk, which would be roughly 5,000 in a year or. In the

4 three years they worked together, 15,000 times when he

5 told her to do something, and she did it. She would have

6 followed every one of those instructions. She trusted

7 him, and she was told what -- she did what she was told

8 to do.

9 Also, we shouldn't fail to recognize that he is

10 a graduate of University of California Berkeley and

11 Stanford Law School. She's a high school graduate. He

12 enjoyed a position of power over her. And throughout the

13 course of the months involved, he used that position to

14 inculcate himself into her life, to control her, to

15 threaten her, to gain her dependence on him, to identify

16 her vulnerabilities, to test her trust and obedience, to

17 forge an intimacy. And when his advances were ultimately

18 rejected, he humiliated her. He injected the possibility

19 of her being criminally prosecuted. These are the facts.

20 As the judge testified on April 10th, on

21 Page 1203, Lines 15 to 17, the quote is: "I have always

22 lived a very ethical, very orderly life, and that period

23 of time was -- I've expressed it already -- was a lapse."

24 And I submit that that's -- it was quite a

25 lapse.

12

1 evaluation of the evidence is undertaken, the more a

2 different picture emerges.

3 And this is not simply the case of improper

4 gifts provided by the judge to a subordinate court clerk

5 or a mentoring relationship that got out of hand. No.

6 The evidence demonstrates a compulsive, singlemindedness

7 of purpose, a design by the judge to apply increasing

8 pressure to secure a special-friend relationship with

9 Mrs. Tovar. This is a case of seduction, of

10 psychological manipulation intended to achieve financial

11 dependence with a quid pro quo of intimacy.

12 And this is important, I believe, to direct our

13 focus on the context within which the judge's conduct

14 occurred. He was her boss in the parlance of those who

15 serve in the courts. She is subordinate to him. They

16 worked in his department together for three years. She

17 was used to doing what she was told.

18 For example: Call the next case. Is the jury

19 panel ready? Have the jury instruction -- requested

20 instructions been received? Do we have a probation

21 report? Have you heard from the public defender? Is

22 there a general appearance of counsel on file? Is there

23 a surety bond posted? Is conflict counsel identified?

24 Please contact the district attorney. We need to reset

25 this motion.

11

1 Now, as I mentioned, the post-hearing brief will

2 explore, in detail, the evidentiary record and provide a

3 full treatment of the issues that will supplement what I

4 have to say today, but I wish to discuss four different

5 topics: the primary reason the judge is not credible and

6 the significance of certain falsehoods, why his conduct

7 is not mentoring and is unethical, why the evidence

8 establishes that he is the author of the anonymous

9 letter, and finally the type of misconduct committed by

10 the judge, prejudicial misconduct and, in some instances,

11 willful misconduct.

12 Now, the judge has shown ongoing willingness to

13 lie to advance his interests. He admitted lying to

14 Ms. Tovar about intercepting the letter at the hospital.

15 He repeated that lie 12 days later in the September 30th

16 long note about the risk he took. He falsely denied that

17 this risk was intercepting the letter in his verified

18 answer. He was impeached by Witness Lisa Buehler on this

19 point.

20 The significance of the interception lie was to

21 make her feel grateful, beholding to him for what he was

22 doing. It also suggests that the authorship of the

23 letter is -- he is the author because it only makes sense

24 that he decided not to actually contact the hospital

25 after saying he would if he knew there was no letter to

13



1 be intercepted.

2 Now, the judge lied in his written response to

3 the Commission and in testimony at the hearing as to what

4 Mrs. Tovar told him was her relationship with

5 Deputy Knoy. He claimed she told him there was an

6 ongoing affair; that she was trying to extricate herself

7 from it. This was a fabrication.

8 Both Mrs. Tovar and Deputy Knoy testified there

9 was no romantic relationship between them in -- after

10 2008. This was corroborated by Tessie Velasquez. And

11 the judge was impeached by his own wife, who testified

12 that he told her that Tovar reported just a financial

13 connection had existed. Lisa Buehler, who testified that

14 he told her Tovar said there was just a financial

15 connection, also impeached him on this point.

16 The significance of his lie about the existence

17 of an affair between Mrs. Tovar and Deputy Knoy in 2013

18 is that it was his rationale for much of his ensuing

19 conduct. He was helping her through a crisis, ending an

20 affair she had in order to strengthen her marriage.

21 Additionally, he sought to develop the fiction of this

22 affair because without one, the pool of theoretical

23 suspects as to being the authors of the letter

24 evaporates.

25 Now, the judge was untruthful as to why he gave

14

1 of course, as you know, we have records from the flower

2 shop that they were delivered on the 24th.

3 The fact that he sent these flowers anonymously

4 was an example of his effort to control the situation.

5 He didn't want anybody else to know that he sent them.

6 In fact, he told her to lie about who sent them. It was

7 a way that he tested her to see if she was willing to lie

8 for him.

9 The judge maintained, in his testimony, that he

10 believed Mrs. Tovar had all along told her husband the

11 truth about the gifts and the money and the trips. But

12 when he texted her on November 3rd to say she would --

13 when she texted him on November 23rd -- November 3rd, to

14 say she wouldn't tell her husband anything, he thanked

15 her for saving his life. This is inconsistent with his

16 position.

17 Now, he told his staff that he submitted a

18 resignation letter and decided to rescind it.

19 Tessie Velasquez corroborates this fact. He falsely

20 stated, in his written response, that he had told

21 Mrs. Kennedy he thought of drafting a resignation letter

22 for her to hold, quote, "in my file." Kennedy impeached

23 him on this point.

24 Now, there are several other examples of where

25 the judge falsely claimed the facts to be other than

16

1 Mrs. Tovar his brother's contact information. He said,

2 in his response, it was only in connection to her son's

3 arm injury. He denied, in his answer, that he ever told

4 her his brother would take care of her financially. He

5 falsely claimed, in that answer, that Buehler did not

6 even ask him why he gave Tovar his brother's number.

7 Buehler impeached him on this point. He

8 testified he gave his brother's number because of her

9 son's medical issue. However, Lisa Buehler testified

10 that he told her he did so because he had made a

11 commitment to pay $200, and Tovar could continue to

12 receive this with his brother's help as the judge wanted

13 her to be financially free, meaning financially free of

14 Deputy Knoy, not of the judge.

15 Now, the judge was evasive when he was asked to

16 explain his text of October 29th, when he told Mrs. Tovar

17 that he had had a wonderful conversation with his brother

18 about her, and he didn't -- she didn't know how well she

19 was covered.

20 The judge lied about seeking permission to send

21 flowers to Mrs. Tovar. If he had done so, the flowers

22 would have been delivered on the anniversary of her

23 brother's death, not a week or two earlier. This

24 explains why he denied, in his answer, that the delivery

25 was on September 24th. He said it was October 1st. And

15

1 alleged, sought to supply evasive answers, testified

2 nonresponsively to avoid answering specific questions, or

3 gave explanations intended to obscure and to dodge

4 culpability. The post-hearing brief will incorporate

5 these examples.

6 His credibility is critical to the findings of

7 fact, and I submit that the record convincingly

8 demonstrates that he has no credibility at all.

9 I think Sir Walter Scott said it best in 1808:

10 "Oh, what a tangled web we weave when first we practice

11 to deceive."

12 Now, the judge was not engaged in mentoring

13 Mrs. Tovar. That claim is simply nonsensical. His

14 conduct toward her was nothing at all like the examples

15 his character witnesses described.

16 First, they sought his help. She did not.

17 Secondly, they had a specific reason such as

18 studying for the Bar exam. She did not.

19 And third, they were not subordinate employees.

20 She was.

21 Mentoring is guidance and the imparting of

22 wisdom to one less experienced. Described here, from the

23 earliest days, the judge had his interests as paramount.

24 He tested the waters by giving her cash for her

25 son. He gave her cash for her birthday when he had not

17



1 done so before. He gave her cash for a new cell phone.

2 He used the letter -- anonymous letter to find out the

3 depth of her financial relationship with Knoy. He gave

4 her cash the next day to substitute himself for

5 Deputy Knoy. Within days, he sent her flowers and gave

6 her $500 more, unrelated to any payment for a Jeep loan.

7 He gave her luxury items like Disneyland vacations and a

8 BMW automobile. He regularly told her that she had no

9 financial worries as long as she agreed to be his special

10 friend, to trust him completely and to tell him

11 everything about her life. He would pay for body

12 sculpting if it made her feel better about herself.

13 He used various means, mechanisms to insert

14 himself into her life such as writing the legal advice

15 letter to -- for her son, scheduling auto repairs once he

16 overheard that she was having a car problem, buying a AAA

17 card for her protection on a trip she was taking with her

18 daughter.

19 He obtained her bank account number to control

20 and manipulate her with deposits of money. For example,

21 he wanted his texting privileges reinstated and wrote

22 that in the October 18th note while depositing $500 in

23 her account.

24 He apologized to her on October 31st, at 7:42 in

25 the morning and twice later that day after they had gone

18

1 emotional affair that she did not want.

2 Now, it's very rare that a case will have a

3 significant evidentiary issue; that is, both the smoking

4 gun and a red herring. And this is what is presented in

5 a discussion of the authorship of the anonymous letter.

6 It's a red herring because for purposes of the

7 charges in this case, authorship does not need to be

8 established. The actions of the judge following receipt

9 of the letter are prejudicial misconduct and, arguably,

10 willful misconduct. Nevertheless, I ask for a finding

11 that he did write this letter based on the following

12 circumstantial evidence that I believe is convincing as

13 to his authorship.

14 Now, the judge is the only person to have ever

15 received this letter. Why? Because he wrote it. His

16 subsequent and immediate conduct after receipt of the

17 letter demonstrates that he had the motive to write it.

18 It served as the mechanism he used to insinuate himself

19 into her life, to secure a close relationship, a special

20 friend. The evidence overwhelmingly demonstrates his

21 desire for a closer relationship. And we also know that

22 the various ways in which he used the letter, the threat

23 of disclosure of the letter, were part and parcel of his

24 design.

25 Now, despite obvious potential for a physical

20

1 to the BMW dealership together. Those texts are at 1:52

2 and 2:00 p.m. And he followed those apologies up with

3 another deposit in the afternoon of $500.

4 He claimed that everything was over after

5 November 3rd, but he deposited $200 on November 12th.

6 When he realized that she was going to seek a

7 transfer from the HR office of the court, he deposited

8 $8,000 to buy her silence, to ward off disclosure as to

9 the reason for her transfer request.

10 I submit the evidence is undisputed regarding

11 his misconduct in the following ways: He embarked on an

12 undue and oppressive level of unsolicited attention to a

13 subordinate court employee, including more than 450 text

14 messages over 63 days and notes seeking a special-friend

15 relationship. He lied to a subordinate court clerk. He

16 encouraged her to lie to coworkers. He continually

17 sought an improper relationship, a personal one, with a

18 subordinate. He gave her multiple gifts and cash

19 totalling over $26,000. And he ultimately told her he

20 was committing suicide unless she spoke with him after

21 she had made it crystal clear that she did not want to

22 receive any more texts, any more phone calls.

23 He regularly sought reassurance that she liked

24 him, appreciated what he was providing, notwithstanding

25 her expressed concerns that he was asking for an

19

1 confrontation, he did not report it to the court

2 administration, to the Human Resources Department, to his

3 PJ or to the sheriff. He never reported it to anyone.

4 Why? Well, there was no need to. He had the only copy

5 because he wrote it.

6 Despite his expressed concern for Mrs. Tovar's

7 safety, including telling his wife that he was concerned

8 her husband might beat her up, he did not tell her of the

9 letter until the following day.

10 Now, if a person gets what is a copy of a

11 letter, normally I think it's reasonable to conclude that

12 the person getting a copy would get it at the same time

13 or after the original letter was delivered to the

14 addressee. So his decision to do nothing about this on

15 the 17th of September, provide no immediate notification

16 to her at all until the next day, is implausible given

17 his concern for her safety.

18 Now, he did nothing to preserve the letter or

19 the envelope for fingerprints, although he knew such

20 tests existed. His claim that he wasn't concerned with

21 determining who wrote it is implausible. He offered to

22 commit a federal crime in intercepting United States mail

23 at the hospital only because he wasn't going to contact

24 them because there was no letter waiting for delivery to

25 her husband.

21



1 Now, he lied to Mrs. Tovar that the letter was

2 intercepted and destroyed because he knew there was no

3 letter. He never spoke with Deputy Knoy to warn him

4 because there was no letter on its way to Mrs. Tovar's

5 husband. He had no reason to warn Knoy even though, on

6 its face, one would have to assume he would do so

7 immediately.

8 Now, he demanded that she keep it quiet. And

9 days later, he reinforced that she not mention it to

10 anyone, particularly Knoy, since he knew that if the

11 deputy found out about it, an investigation might be

12 possible. He did not give her a copy of the letter and

13 never convincingly explained why he didn't.

14 Now, the text of the letter itself serves no

15 one's interest other than the judge because it's a false

16 statement.

17 And also, by looking at the letter and the

18 envelope, it's a bit of a head-scratcher because there

19 were several gratuitous details that seemed highly

20 questionable to be included by one who had the intent of

21 fomenting trouble for either Knoy or Mrs. Tovar.

22 It is, for example, implausible that the writer

23 would carefully include "Care of Tulare Regional Medical

24 Center" on the top of the letter. And writing "Sent this

25 to her judge" similarly, I think, is an unlikely detail.

22

1 her about her husband's temper, whether there was any

2 past history of violence, although he had claimed that he

3 was very concerned for her safety.

4 The fact that the forensic analysis of his court

5 computer -- the fact that that analysis did not reveal

6 the anonymous letter is simply not dispositive because we

7 know that that analysis also didn't find other letters

8 that he admitted writing and he admitted writing on that

9 computer.

10 And now, his court reporter of more than

11 12 years saw an error in structure. As she stated to

12 Lisa Buehler, quote, "When Priscilla Tovar showed me the

13 letter, I remember saying, 'The punctuation, this is a

14 mistake the judge would make,'" close quote.

15 There are no other suspects as the author, and

16 none have surfaced in 20 months. In fact, the only

17 evidence that the judge did not write the letter is his

18 own testimony, and he simply is not credible at all.

19 Now, the Notice of Formal Charges states clearly

20 that the judge is charged with willful misconduct in

21 office as well as conduct prejudicial. And it provides a

22 time frame of mid September to mid November 2013 and

23 alleges a course of conduct over that period as

24 exemplified by subsequent facts and allegations contained

25 in the notice.

24

1 Writing "Personal and Confidential" on the

2 envelope doesn't make any sense unless it was mailed to

3 the court, where somebody else could open it, but it was

4 sent to his house.

5 Now, the judge has shown a proclivity for

6 gratuitous language such as including "Working on

7 prescription orders for inmates" in his September 23rd

8 e-mail to the court supervisor, including "The red car"

9 in a text when he's contemplating suicide, and including

10 "I submitted a resignation letter and rescinded it"

11 during his November 15th staff meeting. And many of his

12 notes and texts also contain gratuitous details that I

13 think are part of his writing style.

14 Now, he knew of Mrs. Tovar's tattoos. They were

15 plainly visible.

16 It's also highly likely that he knew of the

17 other details contained in the letter from overhearing

18 conversations at the court. The inclusion of "J.K." in

19 the letter, I believe, is another red herring since

20 Jeremy Knoy's full name is spelled out in the body of the

21 letter, and the only "J.K." entry is just once as an

22 abbreviation at the very end.

23 Now, in the two meetings that he had with

24 Mrs. Tovar lasting well more than an hour on the 18th of

25 September, there's no evidence at all that he ever asked

23

1 While clearly there are detailed allegations

2 described in that document, not every transgression or

3 ethical violation need be spelled out. The notice frames

4 this matter as a course of conduct undertaken during the

5 time period specified as exemplified by the allegations

6 contained in it.

7 It is the examiner's position that the judge's

8 course of conduct in this matter was prejudicial

9 misconduct involving bad faith, and in some instances,

10 the judge committed willful misconduct.

11 This analysis will be more thoroughly developed

12 in the post-hearing brief, but I wish to make a few

13 comments now.

14 First, as to prejudicial misconduct: The

15 standard is that it's conduct prejudicial to the

16 administration of justice that brings the judicial office

17 into disrepute. It is -- prejudicial misconduct is

18 established when one would appear, to an objective

19 observer familiar with the facts, that the conduct in

20 question is prejudicial to public esteem for the judicial

21 office. And prejudicial misconduct occurs when a judge,

22 even acting in good faith in a nonjudicial capacity,

23 engages in conduct that adversely affects public regard

24 for the judiciary. It may also involve acts done in bad

25 faith in a nonjudicial capacity, and in that context,

25



1 "bad faith" means a culpable mental state beyond mere

2 negligence consisting of either knowing or not caring

3 that the conduct being undertaken is unjudicial and

4 prejudicial to public esteem.

5 Because the public's esteem for the judiciary is

6 measured by the objective observer standard, the

7 subjective intent or the motivation of the judge is not a

8 significant factor in assessing whether prejudicial

9 misconduct has occurred.

10 And all the case cites and analysis will be

11 provided in the post-hearing brief.

12 Now, the record in this matter clearly

13 establishes that the judge engaged in an entirely

14 inappropriate workplace relationship with his subordinate

15 clerk.

16 At a minimum, his conduct was prejudicial

17 misconduct involving bad faith. Lavishing expensive

18 gifts and cash on an employee, obtaining access and using

19 that access to her bank account to manipulate and control

20 her, excessive text messaging after hours, lying to the

21 employee, directing her to lie to others, pressuring her

22 to obtain attention and a close personal relationship,

23 making the employee fearful with threats are all conduct

24 inimitable to the role of supervisor in a workplace, let

25 alone a judge.

26

1 chambers, and he never gave her a copy nor did he give

2 her his copy.

3 I think we must, therefore, accept that the

4 first two prongs of the willful misconduct predicates are

5 satisfied, leaving the question of whether he was acting

6 in a judicial capacity.

7 Now, I acknowledge that there is no bright line

8 defining conduct that falls within the definition of the

9 faithful discharge of judicial duties. Analytically, the

10 determination of when a judge is acting in a judicial

11 capacity has proven to be fact based -- a fact-based

12 evaluation and somewhat elusive as a standard applicable

13 in all cases. Here, however, no such difficulty is

14 presented.

15 And of the two incidents, I submit the evidence

16 supports your finding that the judge committed willful

17 misconduct, first on September 18th, when he instructed

18 Mrs. Tovar to meet him in chambers to disclose the

19 letter; his reservation of the law library conference

20 room and directing his subordinate to meet with him again

21 over the lunch hour; his decision to ensure that the

22 letter be kept a secret and not reported to the Court or

23 law enforcement, placing the staff and the public at

24 risk; his intentional prohibition against her reporting

25 or disclosing the letter; his false claim of intercepting

28

1 The evidence, I believe, convincingly

2 establishes that the judge either knew or did not care

3 that his conduct was unjudicial and prejudicial. Thus,

4 he acted in bad faith within the meaning as it has

5 developed.

6 I submit that there are two incidents in which

7 the judge committed willful misconduct. Now, willful

8 misconduct is unjudicial conduct that is committed in bad

9 faith by a judge acting in his or her judicial capacity.

10 So it's a three-pronged test.

11 There could be no doubt that the course of

12 conduct engaged in by the judge was unjudicial. Bad

13 faith is established when a judge acts for any purpose

14 other than the faithful discharge of judicial duties.

15 I contend that the judge authored the anonymous

16 letter, and he did so to manipulate Mrs. Tovar into

17 trusting him and depending on him. Such deception and

18 manipulation were unquestionably done in bad faith.

19 Even if you determine that he did not write the

20 letter, his handling of it also exemplifies bad faith.

21 He failed to report the letter to the Court. He failed

22 to warn Deputy Knoy of the danger it posed. He lied to

23 Mrs. Tovar about having the letter intercepted. And then

24 he used the letter as a tool to control and manipulate

25 her. He also kept a copy of the letter secured in his

27

1 the letter by contacting her husband's employer; and his

2 failure to warn Deputy Knoy of the potential for a

3 physical confrontation.

4 Given that case law accepts the fact that judges

5 have some supervision over courtroom staff, his conduct

6 on this date was willful misconduct committed in bad

7 faith.

8 Similarly, his actions and conduct on

9 November 18th: When he handed a note to Mrs. Tovar in

10 open court with attorneys and staff present, instructing

11 her to read it on the spot, the note contained an implied

12 threat of criminal prosecution for extortion, designed to

13 intimidate and humiliate her and to obtain her silence

14 about his conduct toward her. This conduct was done in

15 his judicial capacity from the bench and committed in bad

16 faith.

17 I appreciate you making yourselves available for

18 closing arguments, and I respectfully submit that the

19 evidence in the record clearly and convincingly

20 establishes the violations contained in the Notice of

21 Formal Proceedings.

22 And I would like to reserve ten minutes for any

23 rebuttal after counsel speaks.

24 SPECIAL MASTER HALLER: All right, Mr. Harrigan.

25 Judge Dugan, do you have any questions?

29



1 SPECIAL MASTER DUGAN: I don't.

2 SPECIAL MASTER HALLER: Judge Hanoian?

3 SPECIAL MASTER HANOIAN: I do.

4 And I'm wondering whether or not you would speak

5 to what your opinion is of the actions as it relate to

6 the exclusion of Deputy Ballantyne and -- from the

7 courtroom, the exclusion of Deputy Knoy from the

8 courtroom and asking Deputy Cibrian to leave the

9 courtroom.

10 Are they part of this?

11 MR. HARRIGAN: Well, those -- I would ask that a

12 finding be made as to that conduct but not a finding of

13 willful misconduct per se because that was not

14 specifically alleged in the notice.

15 But I will say this as it relates to Ballantyne:

16 He was -- this is an individual that was innocent. He

17 did nothing wrong. He did his job. He made a report

18 that -- when he was told to make a report.

19 And what the judge did was not only have him

20 removed from his courtroom once he saw him, and did so

21 from the bench, but then he banished him so he could

22 never be in his courtroom again. And I certainly think

23 that -- that a finding is appropriate as to that.

24 I'm not -- I don't have full recollection on the

25 Deputy Knoy matter. I do remember that he asked

30

1 to her supervisor and in his judicial capacity.

2 SPECIAL MASTER HALLER: All right. Anything

3 further?

4 SPECIAL MASTER HANOIAN: Not from me.

5 SPECIAL MASTER HALLER: All right. Thank you.

6 Mr. Harrigan, yes, you may certainly reserve

7 that time.

8 We're going to take a very short break of

9 ten minutes. I have five minutes of 1:00. We'll be back

10 in session at five minutes after 1:00.


12 (Recess taken.)

13 SPECIAL MASTER HALLER: All right. Thank you,

14 everyone. Please be seated.

15 And the record should reflect that we are

16 present with all counsel who are here before the three

17 special masters and Judge Saucedo.

18 All right. Mr. Miller, if you would like to

19 proceed, sir.

20 RESPONDENT'S CLOSING ARGUMENT

21 MR. MILLER: Thank you. And good afternoon,

22 Justice Haller, and Justice Dugan, and Judge Hanoian.

23 Judge Saucedo and I have appreciated the opportunity to

24 present the facts and the evidence in this case as we see

25 them and also to take the opportunity to introduce

32

1 Mrs. Tovar what he was doing there and that he wanted him

2 out and gone, but I don't know what the follow-up was. I

3 would have to deal with that in the post-hearing brief.

4 I'm sorry. The third one you mentioned was?

5 SPECIAL MASTER HANOIAN: Deputy Cibrian.

6 MR. HARRIGAN: Oh, Deputy Cibrian.

7 SPECIAL MASTER HANOIAN: Yes. November 18th or

8 somewhere -- somewhere in the November range.

9 MR. HARRIGAN: I mean, I think -- honestly, I

10 think it's a bit of a stretch to say he was acting in his

11 judicial capacity. I think that my recollection was

12 Cibrian and Tovar were talking in the courtroom. Court

13 had concluded. The judge came into the courtroom from

14 chambers hallway and told him to leave so he could talk

15 to Mrs. Tovar. That one has minimal context with, I

16 think, willful behavior in a judicial capacity.

17 There is one more, though, we would ask for a

18 finding on, which is: His behavior on the 20th and the

19 23rd of September, when he interfered with Mrs. Tovar's

20 attempt to communicate with her supervisor about her time

21 log. He kept her there, talking about what I believe was

22 only personal matters. He thereafter claimed they were

23 court matters that were discussed. And he followed up on

24 the 23rd with an e-mail to her supervisor, supporting her

25 work hours. I believe that was a false statement by him

31

1 Judge Saucedo to you, who is here today. And his wife,

2 Teresa, is also here.

3 We appreciate the time that you all took to

4 listen to Judge Saucedo and Teresa and other witnesses

5 about his background and his story and all the live

6 character testimony that brought his story some

7 additional context.

8 And since we're dealing here with evaluating a

9 judge's alleged conduct and the serious allegations being

10 advanced by the Commission, it's all that much more

11 important to understand the type of person and judge

12 whose conduct you are considering. Indeed, as I stated

13 in opening, his background, especially in mentoring and

14 helping others, is directly relevant here.

15 I agree with the examiner's comments that this

16 is a factually complex case. It's an intense case with

17 factually intensive examination of many facts that are

18 disputed and testimony that's disputed. This case,

19 unlike the many that have proceeded to discipline under

20 the CJP that have involved relationships with clerks like

21 Steiner and Woodward and a few others, this does not

22 involve a consensual physical or romantic relationship at

23 all. It does not fit into the rubric of discriminatory

24 or a hostile work environment like we've seen in those

25 cases with improper jokes or improper contact or

33



1 touching.

2 This simply involves interaction between a judge

3 and a staff member. Some of it is personal in nature,

4 much of it taking place outside the courtroom, but none

5 of it involves any matter pending before the Court.

6 These are hard cases to litigate and hard cases

7 to reconcile and hard cases to adjudicate. As a result,

8 in cases like this, where it involves a judge's job and

9 his reputation and his income, the standards of proof

10 here should be exactingly followed.

11 I've loosely described this case as sort of an

12 employment case wrapped inside a CJP proceeding, and I've

13 struggled, frankly, to find the compatibility, if any, of

14 these two concepts. It's like square pegs and round

15 holes.

16 In many ways, the disciplinary rules and canons

17 are an inapt way of measuring the interaction here. Much

18 of what is at issue is purely private, having nothing to

19 do with legal matters or cases pending before Judge

20 Saucedo or court administration. And what might or might

21 not be actionable in a civil setting or some other

22 setting has no bearing here.

23 In this proceeding, the sole inquiry is whether

24 judicial conduct, on or off the bench, clearly and

25 convincingly violates the code of ethics and, if so, the

34

1 Phones were lost or what usually happens to them. And

2 the communications that Ms. Tovar testified that she

3 would have had with many others simply was not available.

4 And given the allegations about the number and

5 the content of text and e-mail communications in this

6 relevant time period and the intense scrutiny brought to

7 Judge Saucedo's activities and Ms. Tovar's every

8 communication, the inability to secure and present this

9 other testimony or evidence is highly prejudicial.

10 Judge Saucedo had no means to secure it until 14 months

11 after the investigation commenced, at which time it

12 was all disappeared or lost.

13 This was not a harmless oversight. It goes to

14 the core of this process, where every aspect of the

15 context and communications for the relevant time period,

16 45 days, is placed at issue. What we're dealing with

17 here, perhaps, was a fraction of the available data and

18 the available communications.

19 I submit if there was one text message between

20 Priscilla Tovar and any of her friends or colleagues on

21 the court that said something to the effect,

22 "Judge Saucedo is giving me all these gifts, and he's a

23 sap," this case would be very different, or it would not

24 exist at all.

25 You should be concerned about these

36

1 measurement of that conduct.

2 I want to quickly go back to a concept that I

3 talked about in my opening because it continued to

4 concern me, and we have testimony from many witnesses

5 during the course of the case.

6 The point I made in opening and to which there

7 was testimony from a number of witnesses was the

8 availability of relevant evidence for this proceeding.

9 We heard from Ms. Tovar, Ms. Buehler, Jeremy Knoy,

10 Tessie Velasquez and Kim Werth, among others, that none

11 of them were asked to preserve any of the communications

12 or information that they had when this matter was first

13 opened up as an investigation in December of 2013.

14 Remember, this started as an AOC --

15 Administrative Office of the Court -- investigation, and

16 they were given unfettered access to all the witnesses

17 here. I think eight in total. And except for Ms. Tovar,

18 none of them were asked to preserve any of the

19 information about communications that they had with

20 Ms. Tovar. And it was clear from the very beginning that

21 this case was going to revolve around those same types of

22 communications.

23 And what happened during the time that the AOC

24 was investigating this, and later the CJP, was all that

25 evidence disappeared. All of it's gone; not findable.

35

1 circumstances, not as to the Commission's investigatory

2 procedures generally, but as to the fairness of a

3 proceeding where by no fault of Judge Saucedo, critical

4 evidence is missing, and he's being prosecuted on

5 something critically less than a complete record.

6 So as you weigh the evidence and you read the

7 briefing on this, I want you -- I urge you to take into

8 account what might be missing and how some of those other

9 communications may have had some bearing on the nature

10 and interpretation and the assessment of the

11 communications that are at issue here.

12 Burden of proof is an important concept to talk

13 about, and I want to spend a couple minutes on that.

14 The examiner has the burden of proof in this

15 case by clear and convincing evidence. He needs to

16 sustain the charges to a reasonable certainty. The Court

17 has described clear and convincing evidence as to be so

18 clear as to leave no substantial doubt and sufficiently

19 strong to command an unhesitating assent of every

20 reasonable mind. Evidence of a charge is clear and

21 convincing so long as there is a high probability that

22 that charge is true. Any reasonable doubt should be

23 resolved in favor of Judge Saucedo.

24 So in each of the allegations that are being

25 made here, whether it's a course of conduct being

37



1 characterized as prejudicial conduct or it's instances of

2 willful misconduct, each has to be measured against the

3 clear and convincing evidence standard. And I'll get, in

4 a minute, to how that may apply to the different

5 allegations here.

6 Now, it was not clear at the beginning of the

7 examiner's case as to whether willful misconduct would be

8 at issue in this case. The Court may recall I made a

9 comment at the very beginning of the proceeding that the

10 examiner's brief only raised prejudicial misconduct as

11 part of the advocacy in their opening brief.

12 I do understand that the notice also contained a

13 provision about a prayer that this conduct at issue in

14 the case could be either willful or prejudicial, but at

15 that point in time, there was no indication as to what

16 would be presented.

17 Willful misconduct, to start with that because

18 now we've heard from the examiner that they believe that

19 there's instances of willful misconduct as the most

20 serious form of misconduct: Willful misconduct has to be

21 found to be unjudicial conduct by a judge acting in his

22 judicial capacity and in bad faith.

23 So I want to first follow up on an issue that

24 was raised by the examiner's counsel in his closing

25 remarks about whether the acts of Judge Saucedo were in a

38

1 think, by far, the conduct is -- should be found not to

2 be in a judicial capacity.

3 Further, the CJP has not shown by clear and

4 convincing evidence that -- as it must -- that

5 Judge Saucedo was using his authority for improper ends.

6 CJP alleges that over the 45 days of interactions, that

7 it was designed by Judge Saucedo to create a closer or a

8 deeper relationship with Ms. Tovar. However, that was

9 not his intent. His intent was to help and assist her

10 based on the situation that was presented to him in

11 September.

12 Ms. Tovar had a financial circumstance with a

13 former boyfriend that she wanted out of. She had an

14 unreliable car. She was living paycheck to paycheck. He

15 didn't want a romantic affair or any closer or deeper

16 relationship with Ms. Tovar at all.

17 There was no evidence presented in the

18 examiner's case that Judge Saucedo used his office

19 outside work to try to influence her, gain any sort of

20 benefit. He didn't get her a better deal with AAA. He

21 didn't get a better deal with the car. There was no

22 other evidence of circumstances where Judge Saucedo

23 attempted to use the power or the prestige of his office

24 to get something that he was ordinarily not entitled to.

25 He was not using the office or the power of the office to

40

1 judicial capacity. And I agree that this is not well

2 laid out in the precedent that we'll look at to try to

3 determine when conduct is or is not in a judicial

4 capacity, but we have some guidelines.

5 The Supreme Court gives great weight to the

6 location of a judge's conduct. When a judge is on the

7 bench, he's presumed to be in a judicial capacity. When

8 a judge is in chambers during normal working hours, he is

9 generally not thought to be acting in a judicial

10 capacity. But if a judge uses, through his authority or,

11 for improper means, his authority outside the court, then

12 on occasion, in a fact-specific inquiry, they may be

13 found to have acted in a judicial capacity.

14 Here, the facts are that the vast majority of

15 the actions that are put at issue in this case are not

16 within Judge Saucedo's judicial capacity. CJP's

17 allegations include mostly conduct outside the courtroom.

18 They were not related to a judicial proceeding or a case.

19 They took place outside of court hours. There were

20 visits to AAA. There were visits to the car dealerships.

21 There were visits to Larry's Repair -- Automotive Repair.

22 The texting was in the off hours. There were meetings

23 and discussions in -- over the lunch hour.

24 So when we're trying to determine whether this

25 was conduct that was done in the judicial capacity, I

39

1 assist her. And while he has a supervisorial

2 relationship with her, that relationship was not a

3 factor, nor did he misuse that position at all.

4 This case is about the personal conduct and

5 personal interaction. It has nothing to do with the fact

6 that he was administering as a judge, nor do the

7 interactions have anything to do with his supervision of

8 Ms. Tovar. You heard testimony about Judge Saucedo and

9 Ms. Tovar working together. You heard about them

10 preparing for the next day's calendar or preparation of

11 minute orders.

12 However, the allegedly improper conduct here is

13 a hundred percent personal and away from the court. When

14 Ms. Tovar -- he could not fire Ms. Tovar. She had no

15 adverse employment decisions. He could not demote her,

16 and she was not penalized or singled out, or her position

17 was not changed.

18 Absent any of this evidence, absent any of this

19 evidence, the CJP has not met its burden by clear and

20 convincing evidence of showing that Judge Saucedo was

21 acting in a judicial capacity.

22 So I want to talk about the two, or perhaps

23 three, instances that the examiner raised in his closing

24 remarks that he thought constituted Judge Saucedo's acts

25 under judicial -- in a judicial capacity.

41



1 One was using the library on September 18th to

2 speak with Ms. Tovar. That can hardly be characterized

3 as acting in a judicial capacity. The library is

4 available to the public. Anybody can go in there.

5 Anybody can reserve it. It does not take a judge to do

6 so. So the notion that he met with Ms. Tovar in a

7 library is not acting in a judicial capacity.

8 Examiner's counsel also cited, as another form

9 of acting in a judicial capacity, was November 18th, when

10 Judge Saucedo handed a note to Ms. Tovar. They were off

11 the record. There was no further continuing of court

12 business. Simply handed her the note. There was nothing

13 different than the contact they had had in the past,

14 where Judge Saucedo spoke with Ms. Tovar at court. It

15 didn't have to do with the case. He was not acting in a

16 judicial capacity at the time of that interaction.

17 And then last -- although I was not entirely

18 clear on this as to whether this would be put forth as an

19 example of acting in a judicial capacity -- there was the

20 events of September 20th and September 23rd, where

21 perhaps there was the insinuation that those actions by

22 Judge Saucedo were somehow in a judicial capacity. I

23 think the facts on those interactions are highly, highly

24 in doubt.

25 Judge Saucedo testified that there were

42

1 husband.

2 She also expressed to Judge Saucedo that her

3 family had never been to Disneyland. It would be nice to

4 bring the whole family and her other family members to

5 go.

6 Judge Saucedo testified that in this context, he

7 saw Ms. Tovar as a daughter, not as a paramour or

8 somebody that he wanted to have an affair with.

9 Judge Saucedo wanted to help her.

10 You heard him -- testimony that Judge Saucedo

11 was an intense individual. You heard testimony about his

12 humble upbringing and that he was presented and -- when

13 he was presented with a situation he felt he could assist

14 on, he did so and did so in a very deliberate way.

15 So by Ms. Tovar's own testimony, on

16 September 18th, she was in a very difficult spot with

17 Deputy Knoy. She had a financial relationship with him,

18 the details of which were a little bit murky according to

19 the testimony. Sometimes she would pay him money.

20 Sometimes he would take care of it and then seek money

21 back from her.

22 Unfortunately, her husband was not aware of any

23 of the financial relationship. Her husband was also not

24 aware that on occasion, she would go to Jeremy Knoy's

25 house and visit him and visit his dog, and -- but she

44

1 additional matters on the court calendar on

2 September 20th relating to release of prisoners and

3 dealing with medications rather than just the one. There

4 were court matters that they needed to deal with. They

5 were commencing another trial the following week.

6 And so the matters that took place that day,

7 while perhaps they may have been dealing with court

8 business, did not result in any sort of willful

9 misconduct by Judge Saucedo with respect to his handling

10 of that matter.

11 Willful misconduct also takes a showing of bad

12 faith. There was no evidence here that Judge Saucedo

13 committed any conduct that could be characterized as bad

14 faith. His intention was to help and assist Ms. Tovar.

15 The only way that bad faith could be found here

16 is that he concocted the whole thing by writing,

17 authoring and sending the anonymous letter. However, as

18 I'll get to a minute, that's not supported by the

19 evidence, let alone any clear and convincing evidence.

20 On September 18th, Judge Saucedo was presented

21 with a situation of a clerk who was in need. She had an

22 unreliable car that was causing her problems. She was

23 not getting to work on time. She had a financial

24 relationship with a former boyfriend that she wanted to

25 cut ties with. She was having marital problems with her

43

1 didn't tell her husband about any of that.

2 Kim Werth and Tessie Velasquez, during the

3 trial, testified that -- they corroborated the fact

4 that -- testified that Ms. Tovar had raised continuing

5 marital issues between her and her husband with them.

6 The alleged bad faith here is that Judge Saucedo

7 intended on forcing her into a deeper, if not some sort

8 of a romantic relationship. That's the allegation and

9 not that he was demeaning toward her. The romantic

10 relationship was obviously not successful. At worst, it

11 was a failed attempt, and the inappropriate affair never

12 happened.

13 But she kept asking for and receiving assistance

14 time and time and time again. Ms. Tovar and

15 Judge Saucedo kept going with the relationship --

16 friendly relationship that they had that didn't include

17 any romance or a deeper emotional relationship; just the

18 assistance that he was getting for her.

19 Further evidence that there was no bad faith and

20 no ill intentions was the fact that Judge Saucedo never

21 hid anything about his interaction with Ms. Saucedo over

22 the 45 days at issue here.

23 Judge Saucedo is a very public person. He's a

24 well-respected judge, former mayor of Lindsay, teaches a

25 class at College of the Sequoias, and he and his wife,

45



1 Teresa, would often drive to work together.

2 If his intentions were to be amorous with

3 Ms. Tovar, the last thing he would want to do would be

4 seen around town with her. But to the contrary, they

5 were out in public a number of times together over that

6 45 days, hardly consistent with somebody that was

7 desirous of having some sort of an affair or romance.

8 When they went to Larry's Automotive, they were

9 together. They went to AAA on two occasions together.

10 They spoke with the agent there. Ms. Tovar went with him

11 to AAA, and they discussed the specifics of the

12 Disneyland trip with the representative there. They went

13 to the Dodge dealership together. They went multiple

14 times to the BMW dealership together.

15 So here there's no clear and convincing proof of

16 some corrupt purpose or knowledge that he is acting

17 beyond his judicial powers or that he's exceeding his

18 lawful power with a conscious disregard for the limits of

19 a judge's authority. None of that was proven in the

20 evidence in the case, let alone in a clearly and

21 convincingly way as it's required.

22 Prejudicial conduct is another form of conduct.

23 Here, the way that's defined is conduct that's

24 prejudicial to the administration of justice that brings

25 the judicial office into disrepute. It includes an act

46

1 circumstance.

2 I want to go through the facts.

3 Prior to September 18, 2013, Judge Saucedo and

4 Ms. Tovar had a cordial working relationship. They had

5 respected each other. They had worked hard in a

6 courtroom where Judge Saucedo was very demanding. He

7 would go above and beyond to help litigants that came

8 into his courtroom. He expected the same from his staff.

9 Early on, when Ms. Tovar or her family was

10 undertaking some fundraising, he gave her money. I

11 assume other people did in the courthouse as well. The

12 evidence also showed that Judge Saucedo was happily

13 married to his wife, Teresa, for 32 years. They had

14 three children. Ms. Tovar was married and had four

15 children.

16 September 17, 2013, Judge Saucedo received the

17 anonymous letter at his home and showed the letter to his

18 wife and decided it was a private matter; that he would

19 speak to Ms. Tovar the next day.

20 So what did Judge Saucedo know? What does the

21 evidence here prove that Judge Saucedo knew about the

22 contents of the anonymous letter?

23 Well, Judge Saucedo testified, and it wasn't

24 controverted, that he did not know that Ms. Tovar's

25 husband worked at the Tulare County Regional Medical

48

1 that a judge undertakes in good faith that would appear

2 to an objective observer not to be -- not only to be

3 unjudicial conduct but conduct prejudicial to the

4 self-esteem -- the public esteem of the judicial office.

5 So the standard that's going to measure

6 Judge Saucedo's interaction with Ms. Tovar over these

7 45 days is what an objective observer would conclude

8 being fully aware of the facts. So let's examine the

9 conduct alleged by Judge Saucedo over this 45-day period.

10 CJP has to prove, by clear and convincing

11 evidence, that his conduct over those 45 days constituted

12 prejudicial misconduct. Again, the standard is that if

13 he undertakes something in good faith, but nevertheless

14 would appear to an objective observer to not only be

15 unjudicial conduct but conduct that's prejudicial to the

16 esteem of the office. CJP has not met its burden by

17 clear and convincing evidence.

18 The anonymous letter is, by the CJP's case, the

19 starting point. And CJP admits that they don't have any

20 direct evidence that Judge Saucedo authored or prepared

21 the anonymous letter. It's circumstantial evidence only.

22 And just by definition, one would have to conclude that

23 piecing together segments of circumstantial evidence

24 cannot be, or ever be, clear and convincing evidence

25 that's required by the ethical rules in this

47

1 Center. He did not know that Ms. Tovar had been in some

2 sort of a romantic relationship with Deputy Knoy, and

3 there was no contrary evidence presented on that.

4 Judge Saucedo testified that he did not know

5 about her tattoos, was never involved in discussions

6 about her tattoos, nor did he see her tattoos. It was

7 not something that he would have involved himself in.

8 The Court had a policy that tattoos should be covered,

9 and Ms. Tovar testified that she usually followed that

10 policy if she knew that they were in trial. The only

11 visible tattoos that she had were on her feet.

12 Judge Saucedo had no information about

13 Ms. Tovar's Caesarian section scar. Multiple people in

14 the case testified that Judge Saucedo never used

15 profanity such as the profanity and lurid details that

16 were included in the anonymous letter.

17 Judge Saucedo did not know that Jeremy Knoy,

18 Deputy Knoy, is referred to as J.K.

19 And most importantly, the forensic evidence that

20 the CJP undertook here complicated the investigation, did

21 not find evidence of the anonymous letter anywhere on

22 Judge Saucedo's computer.

23 The way this was wrapped up by the examiner in

24 his closing -- examiner's counsel in his closing remarks

25 was that it was highly likely that Judge Saucedo knew the

49



1 details because they were some things that were talked

2 about generally in or around the courtroom or in the

3 common area.

4 I submit that that hardly qualifies as clear and

5 convincing evidence that Judge Saucedo was aware of the

6 contents of that letter, and I submit that the evidence

7 that was presented here did not even come remotely close

8 to establishing otherwise.

9 Judge Saucedo, of course, testified he did not

10 write the letter. It was also a typewritten envelope.

11 Judge Saucedo testified he didn't even know how to

12 prepare a typewritten envelope.

13 The only evidence presented regarding the

14 mailing of the letter is that there was a mail slot or

15 mail slots somewhere in the courthouse, but that thought

16 was never completed in any of the evidence that was

17 presented in the case. The only thing that that possibly

18 does is show that there was about a million people within

19 that U.S. Postal Service region that could have mailed

20 that letter in any number of different ways, and it would

21 be postmarked as it was.

22 To the extent that there was any evidence

23 presented that Judge Saucedo had mailed that letter on

24 Sunday, the 15th, when he came back from his vacation and

25 went into his office, his wife, Teresa, was with him the

50

1 who was to say that Ms. Tovar wouldn't take that letter

2 or take the fact of that letter and go right to HR with

3 it, in which case the whole scheme would have been

4 sidetracked from the very beginning.

5 So there is, in fact, no clear and convincing

6 evidence to a reasonable certainty that Judge Saucedo was

7 the author of the anonymous letter. Their circumstantial

8 evidence does not add up to anything.

9 Now, there's other parts of the conduct over the

10 next 45 days, and I want to address that.

11 For Judge Saucedo's part, everything he does --

12 I hope you came to appreciate from his testimony and from

13 the other character references that testified on his

14 behalf everything he does, he does with vigor and does it

15 in a deliberate and organized way.

16 On the 17th -- September 17th, when he found the

17 letter, he knew that he had somebody in need, and he came

18 up with a plan of action and a way to help her.

19 Judge Saucedo, as he testified toward the end of the

20 hearing, admits that his actions, especially his texting

21 on occasion, was too familiar. At times he texted her

22 too much. But he admits that he provided gifts and money

23 to her, gave her money and a car, a Disney trip.

24 And -- but the most important thing, when we

25 assess this course of conduct over those 45 days, is what

52

1 whole time, and she did not see him write or mail a

2 letter.

3 So the notion that Judge Saucedo wrote the

4 letter to orchestrate or start some entire scheme to draw

5 Ms. Tovar into some sort of a romantic or closer

6 relationship just doesn't make sense. Is it credible

7 that the letter was intended as a springboard for some

8 closer relationship? Did Judge Saucedo concoct this

9 anonymous letter about lurid details of a clerk, shared

10 it with her confidentially, and then give her gifts and

11 money under the guise of trying to help her in the hopes

12 that he would convince her to have some sort of an affair

13 or deeper relationship? There's no earthly plausibility

14 to that allegation.

15 If Judge Saucedo wanted to have an affair in

16 this day and age, there would have been a million

17 different ways to have done it discreetly and

18 nonpublicly. Yet any of his conduct here doesn't even

19 remotely suggest that that was what he was after. Yet

20 the Commission -- CJP makes a bold allegation that he

21 created and then mailed the letter to himself.

22 Judge Saucedo never acted in any sort of a

23 physical or intimate or romantic way with Ms. Tovar at

24 all. So the alleged scheme about the creation of the

25 anonymous letter doesn't hold water. And even if it did,

51

1 role Ms. Tovar played in that. In virtually every

2 occasion during that 45 days, Ms. Tovar, according to her

3 testimony, either claimed that she did not want it or

4 resisted it, but she ultimately participated. And this

5 wasn't just, "You can talk to me," or "You can give me

6 cash or deposit cash." It was active, deliberate and

7 conscious participation on her behalf. She's a courtroom

8 clerk. She has ten years of experience. She's the

9 mother of four children. She's not a child. She

10 participated in these interactions over the 45 days

11 consistently.

12 She told Judge Saucedo about the condition of

13 the Ford Focus that she drove. She testified that she

14 didn't ask or command him to fix it, yet she did go with

15 him on two occasions to the automotive repair store and

16 accepted his offer to pay for it.

17 She was actively involved in the purchase of the

18 BMW. She looked online for cars. She went on multiple

19 occasions to the dealership to look at cars.

20 She was actively involved in the organizing of

21 the AAA trip. She provided the names of her family

22 members to AAA. She chose the dates for the trip. She

23 had to go with him to get the paperwork signed. She knew

24 what she was doing. This is hardly indicia of unwelcome

25 conduct by Judge Saucedo.

53



1 And as we know, Ms. Tovar kept everything. She

2 kept the cash. Within two days of the $8,000 deposit

3 that was made into her account, she withdrew nearly all

4 of it. She never attempted to return the money. She

5 never changed her bank account. She always kept the same

6 phone number; never changed that. The flowers she got,

7 she took home. She even told her husband where the

8 flowers came from. She went and pick up the car from the

9 BMW dealership; got the keys. They went to Disneyland.

10 To an objective observer looking at all of this,

11 one would have to conclude that she was a willing

12 participant over those 45 days for the financial

13 assistance, the car, the trip, the flowers; that they

14 were not unwelcome. Or at least that's the signal that

15 she was sending.

16 Indeed, if you recall the testimony from

17 Kim Werth about her texts with Ms. Tovar on

18 September 30th, that Ms. Tovar's suspected -- and that

19 Ms. Tovar, on that very day, also suspected that it was

20 Judge Saucedo who probably wrote the anonymous letter.

21 And that day she snuck into Judge Saucedo's chambers

22 after hours, after confirming he was gone for the day,

23 and copied and photographed the anonymous letter. Yet

24 after that, after September 30th, for the next month,

25 Ms. Tovar continued to accept everything that was

54

1 According to Exhibit 8A, which is the

2 recapitulation of the number of text messages captured or

3 sent between September 2, 2013 and November 3, 2013,

4 Judge Saucedo sent 461 text messages. But in the same

5 time frame -- this was omitted in the examiner's closing

6 remarks -- Ms. Tovar sent 249 text messages.

7 Was this a lot of texts? Perhaps. We don't

8 know the universe of the text messaging that Ms. Tovar

9 was undertaking at that time because we don't have

10 evidence of her other text communications with other

11 people. We know that she would text Kim Werth. She

12 would text her sister. She would text her husband. We

13 have no frame of reference to know if, by her custom and

14 practice and text usage during that time period, if the

15 text messages that she received from Judge Saucedo were

16 too much or too invasive.

17 We do know she was an active and willing

18 participant in a lot of those communications from

19 October 20, 2013 to November 3, 2013. Not a single day

20 passed when Ms. Tovar did not text Judge Saucedo.

21 What was the context of those texts? Well, she

22 told him how much money was in her savings account. She

23 told him that she would check on her bank account. She

24 asked for a four-seater car, not a two-seater car. She

25 also asked for additional tinting on the windows of the

56

1 provided to her.

2 Ms. Werth testified that she told Ms. Tovar that

3 "You can't have it both ways." On October 1st, Kim Werth

4 said to Ms. Tovar, "You're sending mixed messages. You

5 can't complain that it's too much or you don't want it,

6 then turn around and accept or encourage it." Ms. Tovar

7 was warned of that precise behavior in a message that she

8 was sending. This was less than two weeks after the

9 interaction started on September 18th.

10 What does she do the very next day after

11 Ms. Werth warns her that she's sending mixed messages?

12 She makes arrangements with Judge Saucedo to go drop off

13 the car at Larry's Automotive, and he pays for the car.

14 So more mixed messages. Then over the next 30 days, she

15 participates and accepts and even encourages gifts and

16 money and interactions.

17 The evidence did not amount to clear and

18 convincing evidence of unwanted or unwelcome conduct by

19 Judge Saucedo during that time period.

20 We've spent a lot of time talking about the text

21 messages. And the evidence did show that on occasion,

22 Ms. Tovar would tell Judge Saucedo to stop sending text

23 messages, and he obliged. But then he asked if he could

24 text her, and not only did she permit the communication,

25 she responded and initiated her own conversations.

55

1 car that was being purchased for her. Hardly somebody

2 that is trying to resist what was characterized as

3 unwelcome conduct.

4 On October 16th, Ms. Tovar claimed that she told

5 Judge Saucedo that she didn't want his help anymore. Yet

6 two days later, she accepts money in the bank account.

7 She doesn't return it. She starts next planning the trip

8 to Disneyland. And by the end of the month, she's

9 voluntarily test-driving cars at a BMW dealership. So

10 based on that and her continuing active and -- active

11 participation, Judge Saucedo moved forward to try to help

12 her.

13 There's an allegation that Judge Saucedo wanted

14 a romantic relationship. Judge Saucedo testified the

15 answer is absolutely not. He never asked for it. Never

16 wanted it. There's no evidence of it.

17 Ms. Tovar's testimony is different on virtually

18 every single conversation that the two had, but who was

19 more believable? Who was more credible?

20 Ms. Tovar testified on direct examination that

21 she didn't have any marital trouble, no financial

22 troubles, no current relationship with Deputy Knoy, no

23 complaints. There was nothing, according to her

24 testimony, that she had to fix or that needed to be

25 fixed.

57



1 Ms. Tovar testified that in an early meeting

2 with Judge Saucedo on September 18th, she was embarrassed

3 about the letter but had no issues at all, did not need

4 or ask for assistance of any kind. That's what she was

5 trying to portray to this Court.

6 Then we heard from Ms. Werth and Ms. Velasquez

7 that Ms. Tovar raised virtually every single one of these

8 issues with them: her husband's affair; her continuing

9 financial relationship with Jeremy Knoy, visits with him,

10 paying him money; her car troubles; her financial

11 troubles; her issues about her body, self-esteem and

12 appearance. That testimony from Ms. Werth and

13 Tessie Velasquez was not challenged or contradicted at

14 all.

15 On the other hand, Judge Saucedo testified about

16 the fact that he raised, on September 18th, the very --

17 she raised, on September 18th, the very same issues with

18 him: car, money, Knoy, vacation, body work. The

19 testimony of staff members supports Judge Saucedo's

20 version of those events.

21 At no time did Judge Saucedo ask for a romantic

22 relationship. The conversation at the dealership was

23 nothing more than people typically have about whether

24 they were going to buy -- whether the car was going to be

25 purchased or not. Judge Saucedo testified that he never

58

1 You heard testimony from Ms. Tovar about an

2 incident where Judge Saucedo slammed a door in the

3 hallway. But you also heard from Judge Saucedo,

4 Ms. Werth and Ms. Velasquez, that -- they all testified

5 that Judge Saucedo never slammed a door. He didn't slam

6 a fist. He didn't use profanity. You heard from many

7 witnesses who testified about his calm demeanor.

8 There was many text messages that were sent back

9 and forth between Judge Saucedo and Ms. Tovar but only a

10 small portion of which were captured in the evidence

11 submitted before the Special Masters. There were, on

12 occasion, familiar and friendly exchanges between the

13 two.

14 It should be noted in these text messages,

15 Judge Saucedo didn't ask her about the money in the

16 savings account. She provided it without any question or

17 inquiry from him.

18 There were occasions which Ms. Tovar texted

19 Judge Saucedo first thing in the morning. A lot of

20 times, these were follow-ups to conversations that they

21 were having from the night before or about repairing the

22 car or about court matters.

23 Judge Saucedo and Ms. Tovar had a plan, and he

24 was trying to assist her. He was not aware of what body

25 sculpting was when he sent her that text. Ms. Tovar told

60

1 had a discussion with Ms. Tovar about having a

2 relationship at the BMW dealership or anywhere else.

3 Ms. Tovar testified that Judge Saucedo gave her

4 a hug, and that offended her. Judge Saucedo testified

5 that she never complained about a hug. She gave

6 occasional hugs to people. That, in and of itself, is

7 hardly controversial or offensive conduct in the year

8 2013.

9 There's one text that Ms. Tovar writes to

10 Judge Saucedo asking if he is asking for an emotional

11 affair. His immediate response to that is "Absolutely

12 not." Not sure what an emotional affair is; those words

13 don't necessarily go together. But whatever it is, it

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