Judges drunk on bench are rare, ramifications might be extensive

Orange County Judge Jeffrey Ferguson's testimony in his murder trial that he drank every day during work was stunning. Not because no judge has done it before, but because there are no reports of a judge publicly admitting it or being held accountable for it, extensive research for this article shows.

Whether his admission has any retroactive effect on the cases he handled is now up to the presiding judge, district attorney, public defender and private attorneys who represented clients before him. The record will be key.

What should these attorneys be doing right now? "They should check the transcripts in their cases to see if there were any suggestions on the record of the judge making incorrect rulings or not acting appropriately during the trial. The same is true for the transcript of sentencings," Loyola Law School professor Laurie Levenson wrote in an email Wednesday.

That's just what Orange County Public Defender Martin F. Schwarz is preparing to do. "We will review the transcripts of the Judge Ferguson's testimony when it becomes available, conduct follow up investigation as warranted and pursue all available legal remedies supported by the facts," he wrote in an email Wednesday, after the case went to the jury. He said it was not appropriate to comment further.

A media representative for District Attorney Todd Spitzer said no answers about reviewing or appealing Ferguson's decisions could be given until after the jury's verdict. The panel began deliberating Wednesday on three felony charges: second-degree murder, discharge of a firearm resulting in death, and use of a firearm during the commission of a felony. People v. Ferguson, 23NF1975, (O.C. Super. Ct., filed Aug. 11, 2023).

As for next steps: "If there was a drinking issue and the judge was not competent to make rulings, conduct trials or perform to the standards required, then counsel should look to have matters reheard by another bench officer. They have to determine if there was an actual prejudice to the defendant," David Diamond, a State Bar certified criminal law specialist, wrote in an email. "Attorneys must look to file motions with the presiding judge, such as motions for reconsideration, motion for rehearing and even motions for a new trial."

But the founder of Diamond & Associates in Burbank had a caution. "Attorneys must distinguish if the assertions by Judge Ferguson are part of a defense or rooted in fact."

In opposing possible requests for new trials or resentencing, "Prosecutors could argue that much of the assertions are speculative in nature, that there is no way to determine if Judge Ferguson was intoxicated during a specific case or trial or hearing," Diamond said. "They would most likely argue that a jury made the decision and not the judge. However, the judge still rules on evidence, objections and sentencing."

One question that may arise in challenges to Ferguson's decisions is that his drinking during the workday was apparently not a secret from many attorneys and judges who encountered him, and there were no timely objections.

Diamond noted, "It is difficult to overturn convictions and sentencing as a matter of our judicial system. However, it is not impossible. The main issue will be if counsel can show that a bench officer was subjected to the effects of alcohol on a particular day, whether it be one week ago or 10 years ago.

"This will be very difficult to establish. However, in an abundance of caution the Orange County courts should err on the side of due process. The judge has admitted to drinking at times when it could alter his decision making."

Ferguson was admonished by the Commission on Judicial Performance in 2017 for being Facebook friends with attorneys who appeared regularly before him, without disclosing this, and for "posting a statement about a candidate for judicial office on Facebook with knowing or reckless disregard for the truth of the statement."

There was no mention then of alcohol use on the job, though Ferguson has now testified, "It was not unusual for me to have a drink at lunch during a workday...."

He wasn't lunching alone, stated attorneys who have worked in the North County Courthouse where Ferguson spent more than a decade. Other judges and attorneys joined him, these attorneys said, speaking on condition they are not identified.

"Yes, it impacted him. But what impacted the cases, and his decisions more frequently was his relationships that surrounded the drinking," an attorney who used to appear regularly in the courthouse said in an interview Thursday on condition of not being identified. "The attorneys knew. They all would go and have drinks together."

There may also have been a clue in the CJP's 2017 order imposing public admonishment. The document quoted a post Ferguson made about the candidate who was seeking to unseat a fellow judge, who had himself been publicly admonished.

Ferguson's post misspelled the candidate's last name and continued: "has sex with defense lawyer whike [sic] shw [sic] is a DA on his cases and nobody cares"

Before Ferguson's trial, the district attorney's office reported to Los Angeles County Superior Court Judge Eleanor J. Hunter, who is presiding, that the defendant had violated her orders for his release on bail by drinking at lunch with two other judges. Ferguson identified them as Judge Andre Manssourian and Judge Jonathan Fish.

Canon 3D (1) of the California Code of Judicial Ethics says, "Whenever a judge has reliable information that another judge has violated any provision of the Code of Judicial Ethics, that judge shall take appropriate corrective action, which may include reporting the violation to the appropriate authority."

The question of whether Ferguson was a functioning alcoholic, as his defense attorney - Cameron J. Talley - suggested to the jury, might make a difference in whether his decisions are overturned or revised.

Levenson noted, "If the judge managed to make correct rulings, despite his intoxication, they might not be able to show prejudice. However, if his rulings were inconsistent, eccentric or repeatedly incorrect, this will help the defense in challenging their trials, appeals or parole hearings.

"I'm really wondering why other judges did not notice this behavior and report the judge sooner," Levenson wrote. "Same is true for prosecutors and even defense lawyers."

It's not known whether anyone confidentially reported Ferguson's alcohol use on the job to the CJP. Gregory Dresser, the commission's director-chief counsel, was asked.

"Commission investigations are confidential, and I cannot comment on whether or not the commission has instituted an investigation of any particular judge," Dresser answered in an email Thursday. He also cannot disclose whether Ferguson was privately admonished about alcohol abuse.

Wider ramifications of the Ferguson case could include deterioration in the public's view of the judiciary and the courts.

"Some lawyers, prosecutors, defense attorneys have a drink with lunch," Diamond noted. "The standards have to be equally applied to all. It is imperative that judges conduct themselves with the utmost prudence in decision making, as they are the face of their courtroom and the judicial system as a whole."

Behavior like Ferguson's -- and public knowledge about it -- remains rare.

"In my experience sitting with hundreds of judges during the course of three decades, I have never had any indication that any of them were under the influence of alcohol or any other substance," former 9th U.S. Circuit Court of Appeals judge Alex Kozinski wrote in an email. "And I have visited many courthouses, within and outside the Ninth Circuit and never seen a judge (or anyone else) who was inebriated. My experience is largely limited to the federal courts."

The California Commission on Judicial Performance does not appear to have published specific instances of judges being disciplined solely for being intoxicated while presiding over cases. The lack of specific names or cases could reflect either rarity, underreporting or resolutions handled privately through advisory letters rather than public censure.

Cases of a judge being removed from the bench for such acts are hard to find anywhere in the country. A Maryland judge who was arrested for driving drunk and being involved in an automobile accident in 2009 was allowed to return to the bench with the condition of taking a Breathalyzer test before each appearance.