Disqualification Sought in Judicial Bribery Case

SAN DIEGO —  In an unusual preemptive strike to stave off an indictment, lawyers for a prominent attorney and a former judge moved Thursday to have the entire U.S. attorney’s office here disqualified from conducting a federal grand jury investigation of alleged judicial bribery in San Diego Superior Court.

Motions filed by lawyers for attorney Patrick Frega and former Superior Court Judge Michael Greer, who was found Thursday after being missing for two days, disclose that the two men and two other former San Diego Superior Court judges have been notified that they “will be indicted on federal charges, [probably] including racketeering offenses, by Feb. 15, 1996.”

Frega, Greer and the two other judges--James Malkus and G. Dennis Adams--have previously denied any wrongdoing.

Greer, 62, was found Thursday afternoon at a Best Western motel in the Riverside County city of Hemet after a “possible suicide attempt,” said San Diego County Sheriff’s Lt. Gerry Lipscomb. The former judge had been reported missing by his family Tuesday night.

Lipscomb said Hemet police found Greer dazed and semi-coherent, with an empty pill bottle and a razor blade nearby. He had superficial cuts on his wrists.

In the motion filed Thursday in U.S. District Court in San Diego, Frega’s attorneys contend that the U.S. attorney’s office here is operating “under a cloud of ethical impropriety” in the case because it employs a prosecutor, Michael Dowd, who previously “represented and shared the confidences of both Frega and Greer” during a state investigation of the same matters pending before the federal grand jury.

Frega’s motion contends that even if Dowd, who is one of 100 federal prosecutors in San Diego, “was sealed off from participation in the Frega-Greer investigation by internal [U.S. attorney’s] office procedures designed to prevent conflicts of interest,” the office, according to California case law, still must step aside and turn the investigation over to the Department of Justice in Washington or a special prosecutor.

In support of this position, Frega’s brief, lodged by attorneys Dennis P. Riordan and John Mitchell, cites several cases, including one involving one of Los Angeles’ most prominent lawyers: Johnnie L. Cochran Jr. According to the brief, the Los Angeles County district attorney’s office “had to be disqualified from prosecuting 75 to 200 cases being handled by Cochran’s former law firm after Cochran left private practice to become an assistant district attorney in Los Angeles [from 1978 to 1980].”

A companion motion filed by Greer’s attorney, Robert S. Brewer, contends that “the continued investigation and prosecution of Judge Greer by a prosecutorial agency infected with severe ethical doubts is violative of the California rules of professional conduct and federal law.”

At an afternoon hearing Thursday, U.S. District Judge Rudi M. Brewster denied defense lawyers’ requests that he issue a temporary restraining order halting the grand jury probe until the alleged ethical conflict issue is resolved.

However, Brewster scheduled an evidentiary hearing on that issue Jan. 19 and directed the U.S. attorney’s office to make sure it had an “ethical screen” in place to ensure that no confidential information had passed from Dowd to any of the attorneys working on the case. Brewster said the question of whether confidential information had been improperly disclosed needs to be resolved now, rather than after indictments are issued.

Brewster issued the rulings after a stormy hearing in which First Assistant U.S. Attorney Charles G. La Bella characterized defense motions as “a shameless attempt by two desperate men to stave off their day of reckoning.” La Bella assured the judge that the prosecutors had conducted themselves ethically. He contended that an evidentiary hearing could turn into a “circus-like” proceeding in which the defense would attempt to learn about the government’s investigation.

Defense lawyers, particularly Brewer, disagreed. He said the defense only wants to know whether there was an ethical violation and will not conduct a “fishing expedition” into the grand jury probe.

The grand jury has subpoenaed bailiffs and other individuals who worked for the three former judges and has asked for records of more than 40 lawsuits filed by Frega, who gave gifts and cash to each of the judges while they were on the bench.

The inquiry was set in motion more than four years ago when the state Commission on Judicial Performance commenced an investigation of San Diego judges after two dozen of the county’s 71 judges reported that they had received gifts from attorneys, including Frega. Most of the judges were cleared, although four received minor sanctions. The commission decided to more closely scrutinize Greer, Adams and Malkus.

Seven charges of judicial misconduct were filed against Greer, who retired in June 1993, citing health reasons. After departing, Greer disclosed that Frega had lent him more than $10,000 in March 1987. He said he inadvertently failed to include the loan on previous disclosure filings.

Greer, who has been working as a private judge for Judicial Arbitration and Mediation System, was reported missing by his family late Tuesday night.

“I’m the judge you’re looking for,” Greer told the Hemet police, Lipscomb said. The police had gone to the motel at the urging of the San Diego County Sheriff’s Department after the Greer family learned that he was staying there.

Greer, a diabetic with a severe heart condition including angina, was taken by ambulance to Hemet Valley Medical Center, where his condition was listed as stable. His wife and daughter were with him.

On Tuesday, after leaving his Poway home and failing to go to his San Diego office, Greer apparently went to a store in Lake Elsinore where he bought a small figurine of a young girl for his wife and then had it mailed. There were no notes attached, nor were any found in the motel room to explain his behavior.

Greer cited health reasons when he resigned in 1993. He has undergone angioplasty to relieve blocked heart arteries. When he left home Tuesday he had only a few days’ worth of his heart medication.

Five months after Greer’s resignation, Malkus left the bench after the Commission on Judicial Performance discovered that Frega had paid $3,500 for repairs to his car.

Last July, Adams became only the 13th judge in California history to be kicked off the bench by the California Supreme Court. The high court said Adams failed to disqualify himself from cases argued by lawyers--including Frega--who had given him gifts, dinners and free legal services.

The Supreme Court noted that the judges who conducted the commission hearing on Adams found that although he “had failed to appreciate the possible perception by the public of his business and social dealings, there was no evidence that [Adams’] rulings” were based on anything other than the merits of a case. Riordan, Frega’s attorney, noted that point in his brief as a sign that there had been no criminal activity, only bad judgment.

In order to sustain a conviction against a judge for racketeering or bribery, a federal prosecutor would have to prove that the judge had given something in return for gratuities or other favors--a quid pro quo.

The federal probe has been underway for at least 16 months and is being supervised by La Bella, the second-highest ranking prosecutor in the U.S. attorney’s office in San Diego.