Posted On: July 7, 2013 by Mary Frances Prevost


The tides are changing in San Diego. Our citizens' eyes are now wide to the abuses perpetrated by prior administrations that were recently uncovered when the voter's decided to oust the "business as usual" candidates for Mayor and elect Bob Filner. Our protesters worked so hard - and succeeded - in closing down San Onofre nuclear power plant. San Diego and national Occupiers brought to light the abuses of our system, and highlighted the pervasive police brutality that went unchecked during the Civic Center protests.

The previously apathetic and sleepy little hermitage of San Diego, run by a gastapo-like group of powerful and unethical unchecked bullies for far too long, is imploding. Now, the judicial activist judges who for so long supported the bullies in the destruction of our justice system are being targeted, too. The Emperor, as it has been said, has no clothes.

And so, my first installment of "Bullies on the Bench" is dedicated to none other than Judge Howard Shore, a man who gleefully and unlawfully has repeatedly suspended the rights of criminal defendants and figuratively burned the Constitution along the way.


I recall many years ago sitting in chambers with Judge Shore as he railed against an activist judge who was recently reversed for failing to follow legal precedent. The gist of his remarks was, "Any jurist who refuses to follow precedent should be removed." Oh, the horror of it. He was quite outraged. He was insulted. He was disgusted. In fact, the only reason I remember this now is because he was so weirdly and annoyingly apoplectic about it. You see, all of us in chambers had to get to other court appearances and we were desperately hoping he'd finish gassing on about this sooner rather than later so we could get on our way.

We now know that Judge Shore's disgust of such judicial activism does not apply when he is the perpetrator.

So, how did Judge Shore fail in his ethical duties? Why is he an unethical, activist judge?

Just last week a jury of 12 San Diego citizens acquitted Jeffrey David Olson of 13 counts of vandalism for writing political slogans on the sidewalks near several Bank of America offices in disolvible chalk. This political prosecution was manufactured by San Diego City Attorney Jan Goldsmith, a man well know to be in the pocket of big business and the banks. Yes, Jan Goldsmith who, no matter how many times prosecutorial misconduct perpetrated by his very young and poorly trained staff is pointed out to him, ignores the misconduct which serves only to perpetrate continued abuses. There's no one who gives the green light to prosecutorial misconduct like Jan Goldsmith.

But I digress...

During trial, Judge Shore eviscerated Mr. Olson's First Amendment defense, refusing to allow his attorney to mention the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial. "The State's Vandalism Statute does not mention First Amendment rights," ruled Judge Shore.

When new San Diego Mayor Bob Filner heard about this, he sent out a memorandum on June 20 that read in part:

"This young man is being persecuted for thirteen counts of vandalism stemming from an expression of political protest that involved washable children's chalk on a City sidewalk. It is alleged that he has no previous criminal record. If these assertions are correct, I believe this is a misuse and waste of taxpayer money. It could also be characterized as an abuse of power that infringes on First Amendment particularly when it is arbitrarily applied to some, but not all, similar speech."

Now, I hate to break it to you, Howard, but if a state statute conflicts with either the First Amendment to the United States Constitution, or the more powerful California Liberty Speech Clause, then the statute fails. So, "just because" the vandalism statute doesn't say "The First Amendment is a defense" doesn't mean it's not so. First Amendment trumps any statute whose effect is to suspend First Amendment protections.

The California Constitution, article I, section 2, subdivision (a) provides that, "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press. " As the California Supreme Court has observed, this provision is more definitive and inclusive than the First Amendment to the United States Constitution. (Wilson v. Superior Court (1975) 13 Cal.3d 652, 658; see In re Marriage of Candiotti (1995) 34 Cal.App.4th 718, 723.)

And, let's not forget Mackinney v. Nielsen (9th Cir. 1995) 69 F.3d 1002. His purported crime was writing on a sidewalk with chalk. Mackinney subsequently sued the City of Berkeley and the officers involved in the arrest for violation of his civil rights. (42 U.S.C. § 1983.) In discussing the issue of whether the officers had probable cause to arrest Mackinney, the appellate court noted that in 1992 Penal Code section 594 prohibited defacing property with "`paint or any other liquid.'" (Mackinney, at p. 1005.) The appellate court noted that chalk was not a paint or a liquid, so this portion of the statute did not provide the police with probable cause to arrest Mackinney. (Ibid.) In addition, the appellate court concluded that writing on a sidewalk with chalk would not result in damage to the sidewalk. (Ibid.) Accordingly, the appellate court held that the officers did not have probable cause to arrest Mackinney for violating Penal Code section 594.

And so now, with the non-conformist Mayor weighing in, the sheer stupidity (and illegality) of this prosecution was now uncloaked for all to see. Judge Shore couldn't have that. Judge Shore had to make sure the citizens were kept in the dark. He took the unprecedented move to issue a gag order to all parties and witnesses in this misdemeanor case. God forbid the citizens hear about the travesty that was unfolding in his courtroom under his command. God knows why he didn't try to sequester the jurors while he was at it. Judge Shore, in essence, even suggested the Mayor of San Diego to keep his comments to himself. Fortunately, his jurisdiction did not reach the Mayor's office. But we aren't sure that would have stopped him from trying...

But after only 5 hours of deliberation, a sane San Diego jury acquitted Mr. Olson of all charges, effectively emasculating all of Judge Shore's activist attempts to force them into a different decision.

But this is not the first time that Judge Shore has exceeded the scope of his power as a judge, and acted as an activist.

Remember the prosecution by Bonnie Dumanis of Jovan Jackson, a man who ran a marijuana collective? Jackson’s storefront collective was raided in 2008, and he was tried for marijuana possession and sales in 2009, but was acquitted. Cops raided him again that year, and District Attorney Bonnie Dumanis tried him again on the same charges (If you can't "get 'em" once, try, try again). At that second trial, our same Superior Court Judge Howard Shore denied Jackson a medical defense. Shore showed his contempt for the "law" by reportedly calling medical marijuana “dope,” and Prop 215 “a scam.” "Dope" and "Scam" as it may be, it was California law. Judge Shore spat upon the "law."

And after assisting the prosecution in the prosecution of Mr. Jackson by eviscerating his valid defense, Judge Shore sentenced the man to 180 days in jail. Shore's rulings were reversed by the Fourth District, Division One, Court of Appeal, and the Supreme Court refused to hear the case.

I'm ready and willing to use Shore's statements raging against judicial activism against him. Judge Shore, you need to self deport yourself off the bench.

So, yes. That's right. Judge Howard Shore denied Jovan Jackson a valid defense, just like he denied Todd Olson a valid defense. He hurt both of these men very seriously. Judge Shore's hatred of activist Judges who violate precedent qualifies him for the first "Bullies on the Bench" post on this blog.

Oh, I'm sure Judge Shore will have some excuse. It will be wrong, of course. It will be self serving, of course. He will stick to it. He will continue to be his captious, condescending and rude self, as he always is to San Diego criminal defense lawyers.

I can only hope that Jeff Olson and his attorney file complaints to the Commission on Judicial Performance so someone other than those 12 ethical jurors can send a message to Judge Shore: Follow the law, or you're gone.