A view to kill for
When Superior Court Judge Peter McBrien noticed a bunch of oaks blocking his view of the American River, he had the trees chainsawed. Is that upholding the law?
When he arrived at the scene of the crime and surveyed the massive pile of dismembered limbs, he knew immediately that a chainsaw had been used to butcher the victims. There was no blood at the scene, only the telltale shredded bark and wood chips that littered the site. And despite the fact that it was also obvious that the vandals had carried out the tree slaughter quickly, veteran Sacramento County park ranger Steve Flannery berated himself.
Flannery took pride in the fact that he had a keen awareness of the goings-on along his patrol route on the American River Parkway, and was disappointed that he had not discovered the desecration near the Effie Yeaw Nature Center in Ancil Hoffman Park sooner. “When I first saw it, I was really dismayed,” he explained. “You think you’ve got a pretty good eye on things … but it’s a big area to cover.”
It was small consolation when it was revealed that the crime appeared to have been timed to avoid detection. The tree-cutting incident took place in the evening when the nature center was closed, the park rangers were spread thin, and one of the two next-door neighbors who lived nearby were on vacation. Whoever did the tree butchery apparently had a plan. “I believe he timed it just right,” said Flannery.
The unusual chain of events regarding the timing lead to more investigation into the crime, and culminated with the felony criminal indictment of a Sacramento County Superior Court judge.
It all began November 11, 1999, when Flannery received a report of felled trees near the nature center, and went to investigate. Flannery was intimately familiar with the area, having begun his career as a park ranger 22 years earlier by leading educational tours along the nature trails that wind into the woods from the center. Flannery had guided hundreds of visitors through the area, but had never seen the natural landscape the way it appeared that day. What he saw were several large oak trees—later determined to be up to 50 feet tall and 80 years old—that had been dismembered, their trunks and limbs still resting haphazardly where they had landed after falling 50 feet to the ground. He was shocked by the extent of the damage to the park’s trees. “This was a pretty egregious act,” said Flannery, “a callous disregard for protected public property.” Like in all parks and other public property, damaging or removing trees, plants or wildlife at the recreation area is prohibited by state and local law.
The large, disheveled pile of splintered oak looks essentially the same today as when first discovered. Flannery points out that the destruction resulted in a significant loss of the shade canopy provided by the trees, which enabled birds to nest, wildlife to thrive, and discouraged the growth of non-native plants on the ground. “You’re constantly battling non-native plants and the oaks will choke them out by denying them the sunlight. … This is totally open to the sun now,” he explained, pointing to the streaming sunlight bathing the forest floor.
On the fall morning he discovered the hardwood corpses, Flannery immediately put his investigative training to work—although this mystery wasn’t much of a challenge. “It doesn’t take a rocket scientist to figure out who would benefit from these trees being cut,” he said. The houses bordering the nature area are located on a bluff 30 to 60 feet above the area and, as he climbed up, Flannery noted that one home directly above the destroyed trees now had a virtually unobstructed view of the river.
It is undisputed that the crime—the destruction of protected valley oak trees in a public park—has permanently altered the sensitive environment at the Effie Yeaw Nature Center, where schoolchildren and other visitors quietly observe families of deer, wild turkey and other wildlife living, as they have for hundreds of years, among native trees and foliage. It may be hard to comprehend the selfishness of the act—apparently committed for the sole purpose of carving out a view for a home sitting on a bluff bordering the park. And harder still to understand why a Sacramento County Superior Court judge and former deputy attorney general with the state Department of Justice—sworn to uphold and enforce the law—would commit such a crime.
The prosecution, conviction and epilogue from the Sacramento County criminal case formally titled “The People of the State of California vs. Peter James McBrien and Mark Patrick Chamberlin” provides a rare and unsettling glimpse into a veiled niche of the criminal justice and judicial discipline systems, where law-breaking judicial officers are provided preferential treatment. An examination of the case shows that the judge will likely face no public punishment from the Commission on Judicial Performance, the state agency responsible for judge oversight.
Orienting himself in line with the pile of cut wood that used to be stoic, healthy oak trees, Flannery began his hike to the home at the top of the bluff. From the crest, it was impossible to miss the stunning view over the nature center and park, across a glistening bend in the American River, and out over the valley beyond. Stepping over the park boundary and into an unfenced backyard, Flannery proceeded to the back door of the house and knocked. A woman answered and, in a short conversation with the ranger, denied any knowledge of the cuttings outside the back of her property. The woman identified herself as Barbara McBrien and, Flannery recalls, volunteered that she was the wife of a superior court judge. The conversation and demeanor of the woman gave Flannery the impression that he had been given a veiled warning. Flannery felt that it implied “you guys better be careful, you don’t know who you’re dealing with,” he said, as if she felt the reference to contacts in high places would immediately end the inquiry. (Barbara McBrien did not respond to an interview request.) But the judge’s wife may have underestimated whom she was dealing with, and the ranger found the none-too-subtle attempt at intimidation offensive, and remained unfazed. “I had no intention of just blowing it off,” Flannery said.
After enlisting help from a supervisor, Flannery returned to the top of the bluff later that same day, where they were contacted by Susan Arthur, the next-door neighbor of the McBriens, who said she had witnessed the cuttings. Arthur also had additional information about the chain of events leading up to the crime, which were recorded in the court records. “Ms. McBrien told Ms. Arthur that they were going to be cutting oaks from the nature area so that they would have a better view of the river from their property,” reads the district attorney investigator’s affidavit, in the court file. “Ms. Arthur told the park ranger that she tried to change Ms. McBrien’s mind about topping the trees before the first cutting occurred. Ms. Arthur told Ms. McBrien that she had read an article in the newspaper about another incident in which someone had been heavily fined for cutting down trees in the nature area. Ms. McBrien allegedly told Ms. Arthur that, ‘We just can’t live here and not have a view of the river.’ ” The document also revealed that Flannery had been told by Arthur that “on several occasions prior to the tree cutting in 1999, she and Ms. McBrien went on guided bird watching walks hosted by the Effie Yeaw Nature Center. … The walks had taken them to the area below the Arthur and McBrien residences. It was clear to her and should have been clear to Ms. McBrien that the area behind their homes, located in the nature area, was county property.” (Contacted at her home, Arthur declined to discuss any aspect of the case.)
Since the investigators had an eyewitness who had claimed to have watched the McBriens in the act of supervising and assisting Titan Tree Company owner Mark Chamberlin in taking a chain saw to the majestic oaks, that aspect of the investigation came together quickly. The court records note: “Ms. Arthur observed that Barbara and Peter McBrien and their two sons were in the backyard while Mr. Chamberlin was topping the trees. Mr. McBrien was using a rope to help Mr. Chamberlin get down the slope of the bluff. While standing in the backyard watching Mr. Chamberlin, different members of the family would call out that another tree or limb needed to be cut.” And with the motive established and the suspects identified, all that remained was to officially appraise the damage and file the criminal case. (Chamberlin also declined comment when contacted by phone.)
As a result of Mrs. McBrien’s references to her husband’s occupation, and general lack of cooperation, Flannery did, however, feel it would be prudent to enlist the assistance of the special investigations division of the district attorney’s office, instead of pursuing the matter through the usual chain of command. Akin to an “Untouchables” team of prosecutors and investigators within the office, the special investigations division specializes in complex and politically sensitive investigations involving police officers, public officials, and major white-collar crime.
At the district attorney’s office, the oak tree desecration file landed on the desk of veteran investigator Craig Tourte, shortly after the ranger team had met with Arthur. At this point, Tourte served a search warrant at the Titan Tree Company office to retrieve receipts and records related to the work. According to Flannery, there was some concern that if the case went to trial, McBrien, with his background as a deputy attorney general and judge, would retain experienced counsel and mount an aggressive defense. So the prosecution team wanted to make sure that the case was airtight, which meant, among other things, that they needed a professional assessment of the value of the trees.
Certified arborist Joseph Benassini was enlisted to inspect and quantify the damage to the trees that were cut. Benassini identified the trees as being five mature valley oak trees and three smaller live oak trees, and determined that, as a result of the cuttings, the majority of the trees had been damaged about 90 percent. Benassini reported that the trees had been topped, and explained to Tourte that, “topping of trees is well documented as being extremely injurious and can be associated with tree death and hazardous conditions.” During his inspection, Benassini also noticed that there appeared to have been additional trees that were previously cut in the same area. But due to the estimated time when these other trees were whacked, which Arthur confirmed occurred in spring 1997, criminal prosecution was impossible because the statute of limitations had expired. Benassini conservatively estimated the value of the trees from the most recent cuts to be $20,324.70.
On October 28, 2000, Deputy District Attorney Albert Locher filed criminal case FO8821, charging McBrien and Chamberlin with a violation of Penal Code Section 594—felony vandalism—for “unlawfully and maliciously” damaging oak trees belonging to the county of Sacramento Parks and Recreation Department. But instead of issuing an arrest warrant, Locher issued a summons in lieu of a warrant, which enabled the judge to avoid the humbling and demeaning arrest and booking process. Locher concedes that the rarely used summons procedure was an “accommodation” for McBrien, but cited concerns about the judges safety had he undergone the customary arrest and county jail booking procedure. “There are always security issues when we bring a judge or law enforcement officer into jail,” he explained.
But the Sacramento County Sheriff’s Department, which manages the jail facility, takes exception to the accusation that they would be unable to safely process any arrestee, including a local judge. Sheriff’s Department spokeswoman Sharon Chow explains that the jail has an elaborate classification process designed to ensure the safe processing of all jail customers. “We have high-profile inmates on a regular basis,” she said.
In less than 48 hours after the case was filed, the matter was resolved when the district attorney’s office agreed to a misdemeanor plea bargain. Under the terms of the agreement, McBrien and Chamberlin pleaded no contest to a violation of Penal Code Section 384a, which prohibits the destruction or removal of public or private trees and other plants. McBrien and Chamberlin were fined $500, and agreed to pay a total of $20,000 in restitution to the nature center. The day of the court hearing, McBrien’s attorney paid the full $20,000 (which included Chamberlin’s share), and fine on behalf of his client, which immediately concluded the case. After his courtroom appearance, McBrien was allowed to leave through a non-public rear entrance, leaving questions from the media for his attorney to answer.
But conspicuously absent from the court file and settlement paperwork are any references to the increase in property value due to the new river view that McBrien obtained as a result of the crime. Asked about this aspect of the case and whether it was a factor considered in settlement negotiations, Locher acknowledged that it was … but it wasn’t. “We considered that in trying to evaluate the case, but it’s difficult to get a measure of what that might be.” But it wasn’t difficult for Lyon & Associates real estate agent Lillian Fulton, who is recognized as a local authority on high-dollar Carmichael real estate. Fulton is familiar with the McBrien home and all the properties on the bluff rimming Ancil Hoffman Park. Inspecting a picture of the McBriens’ new view, she estimates that in the current market, the property could have increased in value “$100,000 or more … there are only a handful of properties that have that view.” And in his investigation report, Tourte confirms that such views in the immediate area are scarce, noting that the neighbors on the other side of both the McBrien and Arthur residences “ … have a completely obstructed backyard view because of tree and vegetation growth … ”
Judge McBrien declines to comment on any aspect of the matter, and refers all questions to his criminal attorney, Brad Wishek. Wishek feels that the judge was singled out and claims that “illegal tree cutting occurs all the time all over the county that is not criminally prosecuted in this manner. … [McBrien] got prosecuted when others did not.” Wishek also takes exception to the statements made to the investigators by Susan Arthur. “The allegations made by the neighbor are in many respects not true,” he said. Regarding the increase in value of the McBrien residence, Wishek concedes that “that was suggested” but the “judge has no specific information” on that issue. Wishek also defends McBrien’s abrupt exit through the courtroom back door after the case was settled as necessary to ensure the judge’s safety. “You have a person who by virtue of his position as a family court judge is a target of threats, and whose life is in danger—and I say that in all sincerity.”
Wishek also defends the plea bargain as an appropriate resolution of the case: “It was always my position that the vandalism charge was not appropriate, the only charge that was accurate was a misdemeanor.” He says McBrien accepted the plea agreement because “he felt it was in everyone’s interest that he quickly resolve the matter and move on.”
Whether the matter had been quickly resolved or not, McBrien would continue his employment as a judge without interruption, drawing his annual salary of $133,050 with full benefits and a generous retirement package, because, short of physically incarcerating a judge, the criminal justice system is not empowered to remove a judge from the bench. Unlike other public and private sector employees, judges in California face almost no consequences related to their employment for most conduct, criminal or otherwise, that they engage in on or off the job. A judge can commit a serious crime and remain on the bench, unless he is imprisoned, voluntarily steps down or is removed from the bench by the state Commission on Judicial Performance (CJP). In addition, since at least 1871, the justices of the United States Supreme Court have decreed that all judges are immune from the civil liability that nearly all other occupations are bound by, for any actions they take on the job.
In essence, outside of the criminal law, judges are held accountable in only three ways: impeachment, recall, or by discipline from the CJP. Only two judges in California have ever been impeached, the last in 1929. A judge can also be recalled by a petition bearing signatures equal in number to 20 percent of the last vote for office, but the recall procedure is about as practical and as frequently utilized as impeachment. The only realistic oversight of judges is provided by the CJP, which, history reveals, has been something less than a strict disciplinarian.
The Commission is the independent state agency responsible for investigating complaints of judicial misconduct resulting from violations of the California Code of Judicial Ethics—the state regulations that judges are required to comply with—and for disciplining judges. The CJP accepts written complaints from anyone and will also consider “matters it learns of in other ways, such as news articles,” according to its annual report. The CJP also requires any judge who is charged with, or convicted of, most crimes to report himself. However, misdemeanors not involving moral turpitude and infractions are excluded from the self-reporting requirement.
In the rare event that the Commission determines that a complaint merits further inquiry, it will initiate an investigation which “may include interviewing witnesses, reviewing court records and other documents, and observing the judge while court is in session.” All complaints to the CJP are confidential, as are any investigations. “The Commission cannot ordinarily confirm or deny that a complaint has been received or that an investigation is under way,” reads the annual report. And the powers of the CJP are severely limited in that it does not impose financial penalties of any kind.
Peter Keane, dean of the Golden Gate University School of Law in San Francisco, is recognized as an authority on judicial discipline in California, and the author of a successful 1994 state ballot measure that forced significant reforms on the CJP. Keane points out that in its early years, the Commission “was a complete farce” in its role as judicial watchdog. “They were an old boys’ club, they would whitewash everything. They were as secretive as the old Soviet Kremlin, only worse.” Keane says that the CJP has improved in certain respects but has not improved in others, including that it continues to bitterly resist allowing the public full access to information about complaints against judges and how it handles those complaints. For example, nine months after McBrien’s criminal conviction, the CJP refuses to acknowledge if it will issue, or is even considering, any disciplinary action against the judge for his violation of Canon 2 of the California Code of Judicial Ethics, which requires all judges to “respect and comply with the law.”
When the Commission was established in 1960, it had nine commissioners who voted on the imposition of discipline against judges. Of the nine, a majority of five members were judges—with two lawyers and two public members filling out the remaining minority. Keane says this enabled the judge majority to control the final outcome of all disciplinary actions.
But in 1995, the voters in California reshuffled the stacked deck of the Commission when, by a vote of 64 percent to 36 percent, they passed the Keane-authored Proposition 190. The state constitutional amendment made several changes in the Commission, including theoretically altering the balance of power—so that judges would no longer control a majority of votes—and allowing the public access to judge complaints received by the CJP. The proposition increased the number of commissioners to 11, designating six public members, three judges and two lawyers. But the change may not be as significant as it appears on the surface, and the reforms have had virtually no effect on the amount of discipline dispensed by the Commission. An analysis of the Commission’s own statistics reveals virtually no significant change in the amount of discipline issued by the CJP in the four years after the shake-up, when compared with the four years before.
The Commission remains stacked with officials who either make a living off the judicial branch of government, such as judges and attorneys, or are related to those that do. The CJP currently has nine commissioners—three judges, two attorneys and four public members, with two chairs vacant. But of the four public members, two are married to judges, leaving a solid majority of votes in the hands of judges, their spouses and attorneys. These are the state officials who may or may not sanction judge McBrien.
Keane says that Proposition 190 was intended to make all judge complaints received by the Commission available to the public. But the CJP has taken the position that it is only required to disclose the records of judge complaints after it institutes “formal proceedings” against a judge. Which means that, since it didn’t initiate formal proceedings in, for example, 948 out of the 951 complaints it received in 2000, it is only required to disclose the complaints and other records from those three investigations. Keane says this self-serving interpretation by the Commission is another example of its persistent arrogance and refusal to open up to public scrutiny. “They saw a loophole, and it is a dishonest use of that hole. … In order to make public policy, the public has to know it all, right from the outset.”
Since 1991, the CJP has received 10,388 complaints against judges in California. As a result of those complaints, the Commission has removed three judges from the bench. And a review of the actions, or more accurately, non-actions, by the Commission against wayward judges, along with an awareness of the complete lack of civil liability enjoyed by all judges, may provide an insight into why McBrien and his wife were shocked that their transgressions would be questioned by a lowly park ranger.
According to the Commission’s most recent annual report, in 2000 the CJP resolved 934 complaints against judges. Of those, 835 were dismissed without investigation, and another 64 were investigated but then closed without the imposition of any discipline. Twenty-five complaints resulted in private discipline consisting of an advisory letter in which “the Commission will advise caution or express disapproval of the judge’s conduct,” or a “private admonishment,” which “consists of a notice sent to the judge containing a description of the improper conduct and the conclusions reached by the Commission.”
All advisory letters and private admonishments issued by the Commission are strictly confidential, keeping the public in the dark. “They are still playing this game of giving secrecy to claims of judge improprieties that no other profession or group of people gets anywhere else in society,” notes Keane. The Commission will not even notify the person who submitted the complaint what discipline was issued.
Six of the remaining complaints resulted in a “public admonishment,” and a single complaint resulted in the most severe punishment, short of removal from office, that of “public censure.” While three judges resigned or retired with CJP proceedings pending, no judges were removed from office by the Commission in 2000.
The public censure was issued to Placer County Superior Court Judge Jackson Willoughby, and the punishment he received reveals why the threat of a CJP’s issued sanction may not have much of a deterrent effect on other judges, including McBrien. In its report, the Commission described the misconduct by Willoughby as including the fact that his honor had “rubbed his bailiff’s breasts without consent, and repeatedly stared at her breasts and asked to see them, after she had breast implant surgery.” The Commission also noted that Willoughby said to another bailiff who was changing her uniform shirt in the courthouse hallway, “I could stand here and watch you undress all day,” and referred to a female deputy district attorney as “Old Iron Tits.” According to the CJP, the severe punishment of public censure results in only one thing: the issuance of a “notice that describes a judge’s improper conduct and state(s) the findings made by the Commission. Each notice is sent to the judge and made available to the press and public.”
The Commission said that it felt that public censure, instead of removal from the bench, was appropriate because, among other things, Willoughby issued a public apology, was publicly humiliated, and had made “contributions to the judicial system.” And Willoughby continues to make contributions to the judicial system as an active judge in Roseville.
And in another matter, which might foretell the fate of Judge McBrien, Orange County Superior Court Judge Gary Ryan was also publicly admonished for rear-ending another vehicle while driving with a blood-alcohol level of .17 percent, more than double the legal limit. Like McBrien, Ryan cut a deal, and the charge was reduced to a misdemeanor in exchange for his plea of guilty. In a split decision vote, Judge Ryan received a public admonishment from the Commission. Three of the commissioners—composed of two judges and a public member who is the wife of a former judge—voted against public admonishment and stated they would have imposed a less severe sanction. [The full text of this and all public CJP decisions can be seen at www.cjp.ca.gov.]
Citing unfamiliarity with the facts of the case, Keane declines to speculate on the possible outcome of the McBrien disciplinary matter, if it indeed exists. But, as a man partial to understatement, he does note that “looking back at what the Commission has done, there is a tendency at the CJP to not sanction judges as much as they should.” He adds that, while the public may hold elected officials to somewhat lower standards, it expects more from judges. “[With politicians], unfortunately, there’s a cynical understanding of the fact that these are characters that are probably going to be involved in a certain amount of hanky-panky. But in terms of the integrity of our system of justice, there is a justifiable expectation that judges are going to be like Caesar’s wife, sort of above repute. So if someone wants to be a judge, then by God, you’re going to be held to a very high standard of proper conduct. If you don’t like that, don’t become a judge.”
According to a 1992 judge profile that appeared in a legal newspaper, McBrien does in fact like being a judge in the family law department of the Sacramento County superior court. "I enjoy the subject matter—as difficult as it is. You get a sense that maybe you’re helping," he told the reporter. In the profile, the judge was commended by lawyers who appear before him with their clients for being intelligent and balanced, but occasionally less so by labeling one parent "good" and one parent "bad" in what is supposed to be a no-fault situation. And one attorney noted that, "occasionally, you’ll just sort of see him fall off the fence … really coming to some sort of judgment that he doesn’t like this person, that they’ve been naughty." Judge not lest ye be judged.