Former judge avoids jail for DUI in behind-scenes plea bargain

June 30, 1997 No Comments

A retired San Diego judge who was convicted of drunken driving two years ago avoided jail recently in a second case through a plea bargain quietly arranged by the City Attorney’s Office.

The deal with former Judge Robert P. McDonald blew up last week, however, when San Diego’s presiding Municipal Court judge voided it and recommended that a neutral judge consider fining or disciplining the lawyers involved. A hearing is pending.

“This plea bargain should never have taken place in our court,” Judge Michael Orfield told the lawyers Thursday.

At the eye of the storm is 74-year-old McDonald, who was appointed to the Municipal Court bench in 1983 by then Gov. Jerry Brown.

During his years as a judge, McDonald was generally regarded as a homespun liberal with a heavy Boston accent who appeared happier rambling on about his beloved Red Sox than he did in fielding complex legal issues.

Today, his lawyer said, McDonald is in ill health, having undergone triple-bypass heart surgery that has left him dependent on a walker. The attorney, Paul Neuharth, refused to allow his client to be interviewed.

McDonald’s legal problems began in 1995, a year after he retired, when he caused a minor collision at a Pacific Beach intersection and was arrested on suspicion of drunken driving.

McDonald refused to take a field sobriety test, but a forced blood test later showed his blood-alcohol level to be 0.31 percent, nearly four times the legal limit.

All the judges on the Municipal Court disqualified themselves from hearing McDonald’s case to avoid any real or perceived conflicts of interest.

Instead, it was handled by Superior Court Judge William Howatt, who imposed the standard penalty for a first-time offense. McDonald paid a $1,100 fine, attended 90 Alcoholics Anonymous meetings and completed 180 hours of volunteer work.

McDonald also was placed on five years’ probation and ordered not to drink and drive. He was warned a second offense could warrant a jail term of up to six months.

Midday crash

The former jurist, who slapped restrictions on drunken drivers in scores of similar cases when he was on the bench, didn’t follow the rules. He got behind the wheel after drinking on April 5.

In the middle of a clear afternoon, McDonald smashed his gray 1987 Oldsmobile 98 into two cars parked on busy Garnet Avenue in Pacific Beach. He then veered across the road onto Everts Street and rammed his Olds into two more vehicles before careening into a 1986 Volvo station wagon.

The police report documenting the collisions noted that McDonald’s car struck the Volvo so hard it pushed the wrecked station wagon onto the sidewalk.

McDonald was arrested on suspicion of drunken driving and taken to jail. His blood-alcohol level was recorded at 0.08 percent, the level at which a motorist is presumed to be under the influence.

The Volvo’s owner, Michele Miller, saw the collision as she made a call from a public telephone about 25 yards away, outside the Trader Joe’s where she worked as a clerk.

“My daughter thought the driver had a heart attack,” said Paul Miller, a former El Cajon cop who retired from the San Diego Fire Department in 1988. He said he quickly discovered the system he was once part of could prove frustrating to outsiders.

After painstakingly tracking the case, Miller was shocked to find that there would be no trial and that McDonald’s case was a fait accompli. The City Attorney’s Office agreed to disregard the 1995 conviction in return for a conviction in the current case.

In the deal, the former judge was spared a jail term that usually is mandatory for second convictions in drunken driving cases. McDonald basically was handed the same sentence he got in his earlier case but also had to surrender his driver’s license for the next five years.

“This has completely shaken my confidence in the system,” Miller said. “This man was a judge who sentenced people for the same crime. If anything, he should be held to a higher standard, not a lower one.”

`Red arrow’ case

McDonald’s plea bargain was approved by Commissioner Lee Witham, who apparently was not aware the case involved a former judge. McDonald never appeared in court, not uncommon because defendants don’t have to show up for misdemeanor cases.

Such resolutions also are routine in a traffic court like Witham’s, where the massive number of cases forces judges to rubber- stamp plea bargains sanctioned by prosecutors.

Witham did not return phone calls for comment. But Presiding Judge Orfield said he spoke to Witham and was assured that the commissioner did not know the case involved a former judge or know the history of the first case.

The City Attorney’s Office, meanwhile, was fully aware of the situation.

Assistant City Attorney Leslie Devaney, responding for comment on behalf of City Attorney Casey Gwinn, said McDonald’s case was tagged with a “red arrow,” designating a prominent defendant or victim might be involved.

Having prosecuted the 1995 case, the office knew the Municipal Court judges had recused themselves. But Devaney said it didn’t matter. “We just felt that there are enough judges on the bench who either weren’t there before or didn’t know Mr. McDonald and therefore it wouldn’t be a problem,” she said.

She conceded that no effort was made to inform Witham.

“We’re looking into that now,” Devaney said in response to questions about whether Witham should have been notified.

Orfield, in the Thursday court hearing, demanded an explanation.

“There are many, many interested parties now that want to know exactly what happened to put Commissioner Witham in an extremely embarrassing position to even handle the case,” he told Neuharth and Sue Heath, chief of the city attorney’s criminal division. Both Neuharth and Devaney insisted in interviews that McDonald “was treated like anyone else and got no special favors” precisely because Witham approved the deal and had not been told he was handling an ex-judge’s case. Other people, particularly criminal defense lawyers who butt heads daily with the City Attorney’s Office in drunken driving cases, see the plea bargain differently.

“It sounds like his lawyer got him a hell of a deal,” said attorney Frank Puglia, who has handled hundreds of drunken driving cases. Puglia noted that it was the defense lawyer’s job to win the best deal possible.

“But my observation is that if you have someone with a prior two years old with a 0.31 blood-alcohol level and a new case with such extensive damage it would be very unusual for the City Attorney’s Office to strike the prior.”

Another defense lawyer, who like many others was uncomfortable about being identified as criticizing prosecutors, had a terser reaction:

“They’d laugh at me and say, `See you in court,’ and force my client the expense of going to trial,” he said.

Nothing special

Devaney defended the deal, insisting that the average citizen would have gotten the same treatment.

“The most important thing to our office was to get this man off the streets, and that’s what we achieved with this agreement,” she said.

In his years on the bench, McDonald was frequently challenged by prosecutors because of his liberal interpretation of the law.

McDonald also stood apart from his more traditional colleagues.

“He’d come wandering in at whatever hour in a shirt with a frayed collar and shoes with holes in the soles,” recalled one buttoned- down veteran prosecutor.

“Bob was so off-the-wall he’d drive you crazy. But at heart, he was also a really nice guy.”

Neuharth, McDonald’s lawyer, is contesting Orfield’s voiding of the case and wonders what a stiff sentence on the aging McDonald would prove.

“He’s given up his driver’s license and agreed never to drive again,” Neuharth said. “His car’s been sold for salvage and he’s under the care of a home health-care nurse. What more can they do to him?”

Paul Miller said he regrets McDonald’s poor health but doesn’t want the courts to allow “that emotional card” to be played at the expense of public safety.

“I almost lost my 18-year old daughter once because of this,” he said. “I don’t want to have to face that again.”

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