Judge Ross Moody: A Long Arm And A Short Fuse

A public defender in San Francisco PD Jeff Adachi’s office, John Paul Passaglia, put his arm around his client. It might have been viewed as a heart-warming gesture, but Judge Ross Moody wasn’t feeling it.

John Paul Passaglia, an attorney with Adachi’s office, faces five days in jail and a $1,000 fine for allegedly failing to step away from his client after Judge Ross Moody ordered him to do so in a hearing Sept. 14.

Passaglia said he did not defy the judge’s orders, but that he was in shock and “reacted to an unethical demand” when his client was allegedly wrongfully taken in custody during the hearing. His client remained in jail Friday.

To the extent the story is told, Passaglia’s client, Michael Bayanos, was holding up the machinery of justice by not pleading quickly enough.

Passaglia said that Moody twice threatened to jail his client, Michael Bayanos — a 55-year-old Filipino immigrant with limited English speaking skills — when Bayanos “took too long” to enter a plea. Bayanos is accused of misdemeanor theft for stealing a bottle of perfume, Passaglia said.

At that hearing, Bayanos entered a “no contest” plea for petty theft and was assisted during the hearing by an interpreter.

“He was in the process of giving up his rights as part of the plea and during the plea the court asked whether or not he spoke English,” Adachi said Friday, adding that Moody allegedly grew frustrated when Bayanos requested a Spanish language interpreter.

What happened then is remarkable for its banality. The judge demonstrated a level of tone-deafness that would be laughable by anyone without the power to jail someone for annoying him.

“At this point, the judge says, ‘You are this close to finishing the plea or going into that holding cell, do you understand?’” Adachi said.

According to court trasncripts [sic], Bayanos responded that he understood. Moody then addressed Bayanos a second time, asking in English, “Do you want to finish that plea and walk out that door or do you want me to put you in custody?”

Missing from the retelling is a critical detail that distinguishes why the judge’s question is idiotic and wrong. There are many defendants for whom English isn’t a first language, and whose understanding may be pretty good, but not quite good enough to understand the nuance or jargon of a plea allocution.  Hell, there are plenty of native English-speakers for whom the words are completely foreign. Sure, lawyers get them. Judges know them. But defendants? Why would they know the legal jargon that would otherwise never be heard outside a courtroom?

So on the one hand, Bayanos may well understand well enough to appreciate the threat of jail if he doesn’t move it along, since the judge is very busy and doesn’t have time to do more than go through the motions of a plea. For a defendant, understanding what he’s doing as he’s giving away his rights, condemning himself to potential deportation, and the certainty of a life as a convicted criminal, might be worth understanding.

Defendants can be so annoying to a busy judge. Why can’t they just “get it”? Why can’t they just muddle through a plea allocution, get it done, get out of the well so the judge can grind through his calendar? So annoying that they actually want to know what the words mean. All the words, even the weird legal ones?

Judge Moody finally had enough and ordered Passaglia to step away from his client so that Bayanos could be taken back into custody, jailed for annoying the judge in the first degree. Passaglia refused.

Passaglia said he was caught off guard by the order and stood next to his client with his arm around him, even when Moody ordered him to “move away.”

Jeff Adachi appeared in court on behalf of his public defender at the contempt hearing. After all, Passaglia defied the judge’s order and that can’t go unpunished.

On Friday, Adachi argued that Passaglia was justified in advocating for his client and that Moody’s decision to jail Bayanos was “unethical and illegal.”

“You can’t just take someone and put them in jail because they refuse to plea [because] it’s perceived by him as a threat that he will be taken into custody if he doesnt finish his plea,” Adachi said. “It’s completely unethical and beyond the judge’s power to do that.”

The judge’s explanation is that he was just protecting the court interpreter from Bayanos’ threat. There’s a lot of threatening going on in San Francisco courtrooms, apparently.

In a transcript of a hearing held the day after Bayanos was taken into custody, during which Passaglia asked for Bayanos’ releasee, Moody stated that Bayanos had acted “in a threatening manner towards the interpreter” during the prior hearing.

It would be nice had the story provided any actual substance of Judge Moody’s allegation rather than the meaningless conclusory quote, but it doesn’t. Nonetheless, it’s hardly unusual for a defendant, trying to understand what’s being said to him, asked of him, to question the interpreter who might suck at his job, be incapable of communicating complex legal concepts clearly or is, most likely, merely interpreting the words spoken by the judge accurately,

The problem is that the judge mutters the words, but what they mean is never said, so the interpreter doesn’t say them. Contrary to popular belief and most defendants’ expectations, it’s not the interpeter’s job to explain the law to the defendant. His job is just to translate the words. This often is a useless exercise, since the words are meaningless to the defendant or, quite often, don’t translate well. Or both. And so the defendant keeps asking the interpreter to explain, which he can’t. And shouldn’t. He’s neither the judge, lawyer nor professor.

But then, a little time, patience and effort might have enabled Bayanos to muddle through his plea and walk out of there. Judge Ross Moody wasn’t having any, so it was the long arm of the law or the human arm of Passaglia that was going to wrap up Bayanos. While there are times when a PD’s refusal to comply with a judge’s direction reflects a poor tactic, when the judge tells the officers to take charge of a guy because he doesn’t understand English well enough to be convicted right, it’s a pretty good time to be contemptuous.

16 thoughts on “Judge Ross Moody: A Long Arm And A Short Fuse

  1. Some Lawyer in SF

    Although I did not witness this particular incident between Judge Moody and Passaglia, I appear in front of Judge Moody on a regular (daily / weekly) basis and am quite familiar with JP Passaglia. I may not always agree with Judge Moody’s legal decisions, but he has consistently been one of the fairest jurists I’ve appeared in front of throughout the Golden State in about 10 years of practice and highly respected at the Hall of Justice. He has been handling the misdemeanor master calendar in San Francisco for about the past year. That calendar averages 80-100 cases a day and Judge Moody is responsible for hearing all misdo. arraignments, pleas, and most pretrial motions. As a wiser lawyer once said, “God save us from baby DAs and PDs.”

    I’ve seen Judge Moody rightfully blow his stack after a baby PD or baby DA does not get a hint or keeps yammering away when he’s signaled that he’s heard enough. Yes, he’s also snapped at lawyers because he’s the sole adult watching over a kiddy pool largely filled with baby SJWs. Even so, Judge Moody will spell it out for the new lawyer in an attempt to educate them.

    As for Passaglia, this may be the first time he has actually been charged with contempt, but it is not the first time his, um, “advocacy” has lead a bench officer to take exception with him. I get the feeling his heart is in the right place, but there is a difference between protecting the client by taking a stand because that is the right thing to do and taking a stand regardless of what’s happening because you don’t know what else to do.

    1. SHG Post author

      So beyond a general (and, I note, pseudonymous) vouching for Judge Moody, and against Passaglia, bearing no connection to what the story says happened or what some local says really happened, is there anything to say that actually advances our knowledge or should be considered meaningful and reliable by anyone reading?

    2. Ron

      This has that peculiarly unpleasant smell of someone trying to salvage a judge who behaved poorly, and smack a PD, without actually saying anything of substance and while hiding under a rock. What’s that smell called again?

      Oh yeah. Bullshit.

      1. SHG Post author

        It may be true. It may be bullshit. If only people commenting understood the significance of empty pseudonymous puffery. I beat up the cop shills for playing this game all the time. It doesn’t change when it’s directed toward anyone else.

  2. Chas

    I will say only that Jeff Adachi is one of the best, and most grounded, lawyers I have ever seen or met. If Jeff takes a strong position, I believe it.

    1. SHG Post author

      I agree, but for the same reason, I have no doubt he would stand up for his PDs, even if they might have been a bit misguided. If I were in his shoes, I know I would.

  3. DHMCarver

    Why when reading the comment by “Some Lawyer in SF” could I not stop thinking about Judge Kopf’s recent post on bootlickers?

    1. SHG Post author

      He’s a good judge, Brent. That this guy, whoever he is (first time commenter) felt compelled to reach out here is unusual. While cop shills are the norm, judge shills not so much. But then, that was some empty support, and why he felt the need to go pseudonymous was bizarre. Was he a judge bootlicker? I dunno. The older I get, the more I dunno.

  4. Some Lawyer in SF

    I’m a frequent reader but infrequent commenter on SJ. SJ does not require commenters to create an account. I’ve posted a few times before with the same e-mail address but a different handle. Although SJ does not prohibit anonymous, since you asked, I’ll answer the question: Why anonymous?

    Ever seen the Jack Nicholson movie Chinatown? Criminal defense (or criminal justice in general) in San Francisco is highly political and involves a limited number of people. I’m not Moody and I’m not Passaglia. I’m not in the Public Defender’s Office, the DA’s Office, or the Courts. I’ve worked for judges before and I’ve worked for lawyers who are now judges (not Moody). I am very familiar with people in the Public Defender’s Office from Adachi on down to the paralegals. Having said all that, I ask to remain anonymous.

    Unlike most of what I read on various blawgs, this post struck close to home. I write from personal experience with the people involved and figured I’d offer a different perspective than a shitty article in the newspaper. I get that I did a shitty job of explaining myself the first time around. I’ll try to do better next time.

    Greenfield asked how my post “advances our knowledge or should be considered meaningful and reliable by anyone reading”? Having read the comments on this blawg before and seen how grumpy the host can be, I doubt I can offer much that everyone would find “meaningful and reliable by anyone reading”. As to “advancing our knowledge”, fair point. Let me see if I can explain.

    My first point was something so obvious I did not think I had to be mentioned: The press is notoriously inaccurate and incomplete when it comes to reporting about the law, especially criminal cases. Maybe that point was lost by the wayside. I’ve personally dealt with the Examiner and am familiar with cases they report on. I have no reason to believe this article was somehow more accurate than any other published by the SF Examiner.

    But wait, there’s more.

    This article made it seem as if Passaglia was simply standing by his client when an impatient Moody blew his stack in a pique of robe rage. It’s hard to tell whether the reporter actually spoke with Passaglia or quoted from the transcript. (Yes, yes, there’s a photo of JP, presumably from the next day.) Although the reporter noted the courtroom was packed with people supporting both Moody and Passaglia, the reporter does not quote any of Moody’s supporters. (I did not know about this dust up until I saw the SJ post.) The reporter quotes from and talks about Adachi to explaining (or lending credibility to) Passaglia’s version of events. Jeff is a smart attorney and a smarter politician. I would expect nothing less.

    The problem is: Jeff wasn’t there for the initial incident. I have no doubt that those of us who actually go to court have seen, and occasionally been in the crosshairs, of a judge who, for whatever reason (or no particular reason at all), takes out his or her anger on the litigants before him or her. However, as the instruction goes, “What the lawyers say is not evidence.”

    If Greenfield’s point was that a lawyer sometimes needs to stand up to a bully judge by taking one for the team, then my point is this: there may be a time and place for everything but I highly doubt this was either the time or the place.

    I found it highly unlikely Moody was blow his stack because, in all my dealings with Moody, he tends to be among the most even keeled judges in the building and is not afraid to make intellectually honest (yet unpopular) decisions. Even in his most impatient (and he can be impatient), I’ve never seen him remand someone for not taking a plea fast enough or hold a lawyer in contempt.

    Having said all that, I get that my original post did not do a very good job of explaining why I was reluctant to buy this picture of Moody being a short-fused ham-fist. Since no one else picked up on the details and I failed to mention it earlier, I’ll take a stab at it now:

    Incompetent people cannot be tried. If someone cannot be tried, they cannot enter a change of plea. It bears mentioning that California has different laws about competency proceedings in felony versus misdemeanor cases. (See Cal. Pen. Code §§ 1367-1376.) Passaglia is quoted at the end of the article saying he was upset at the idea of his incompetent client languishing in jail for an untold amount of time. That, at best, misstates the law. Yet Passaglia was also attempting to get his evidently incompetent client to enter a change of plea. That’s a no-no and you don’t need to know my name to figure that out.

    Couple that with Passaglia’s refusal to move aside when Moody issued his order. Under certain circumstances, that may be the thing to do even if you wind up having to answer a contempt charge and deal with the State Bar. I personally would not want to have to tell the State Bar why I refused to comply with a judge’s order after trying to get my apparently incompetent client to enter a change of plea.

    It very well could have been the case that Moody was being unduly harsh and impatient. It could also be the case that Passaglia was doing a “no-no” by trying to plead out an incompetent client who, according to Moody, was threatening the translator. Maybe Moody knew the client was incompetent. (Judges in California have a duty to declare a doubt, even if counsel will not. [See Cal. Pen. Code § 1368, subd. (a).]) At first glance, Passaglia’s putting his arm around his client may seem like a kind or heroic (to some) gesture, but when you step back and look at the bigger picture, it looks more like a lawyer doing a disservice to himself and his clients and less like someone standing up to a bully judge.

    If this makes me a shill for a judge, so be it. A good judge is hard to find.

    1. SHG Post author

      This was really long, but doesn’t add a whole lot. I didn’t suspect you were a shill for Moody, and didn’t brand you as such. But when you’re entire point hinges on your personal knowledge, then it matters who you are. It’s not that I don’t allow anonymity, but if you choose to be anon, then you can’t base your comment on personal knowledge.

      I thought I was clear in the post that the article was a piece of crap, and there was much missing and what was in there was confusing. Yet, there was enough to know there was something wrong, not the least of which was Adachi standing up for his guy. Did Passaglia do something worthy of contempt? The article doesn’t suggest it. You don’t say so.

      So we’re left to overlook the article, overlook Adachi and assume instead that an anon guy who wasn’t there and claims no greater knowledge than the personalities involved knows better? Maybe you do, but this will never cut it. There are people here with real names, real lawyers, who want to rely on their bona fides. You want to keep it on the down low for political reasons? That’s fine, but then you can’t do what you’ve now tried to do twice: rely on your credibility while remaining anon.

      And it was my reading of the article that when Passaglia called his client incompetent, he didn’t mean incompetent to stand trial, but to understand the language of the plea. This seemed quite clear, even if the article was poor otherwise.

    2. David

      Dude, you didn’t get the idea at all. You can be anon all you want, but you can’t be anon and expect anyone to take your word for it. It’s really not hard to follow.

Comments are closed.