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Court of Public Opinion: Judicial candidates Aaron Persky (left) and Arthur Bocanegra say they'll abide by their pledge to the local bar association.

Public Eye

Judging the Judges

Speak up, man! That's pretty much the gist of what 26-year public defender's office veteran Aram James has been firing off in emails to the judicial candidates running in the Nov. 5 election. James reasons that since Superior Court judges are elected, the public has a right to know where they stand on important criminal justice issues like the death penalty, gay rights, federal raids on medicinal marijuana farms and the rollbacks on civil liberties for Americans since 9/11. And what better time for the candidates to bare their souls than the upcoming debates? ... The throat-clearing on the other end, meanwhile, has been deafening. For years candidates have clung to the canons of judicial ethics that say they can't declare opinions about things which might come before them on the bench because they'd have to pull themselves off cases due to bias. This circular reasoning was thrown out by the Supreme Court earlier this year in a Minnesota case,
The Republican Party v. White. This, in James' mind, opened the door for candidates to finally speak out on the issues. ... Well, not exactly, say the only two candidates courageous and brave enough to call Eye back. For one thing, says Office No. 9 contender Arthur Bocanegra, the candidates all signed a voluntary ethics pledge with the local bar association early this year saying they wouldn't take such stands. "The Supreme Court decision gives us more latitude, but we voluntarily signed this pledge," he points out. Plus, he adds: "I have my viewpoints, but they don't affect my impartiality. I'll always decide things on a case-by-case basis." Candidate Aaron Persky, running for Office No. 16, thinks that in theory openness is a good thing, but candidates' opinions can be misinterpreted and even abused. "There's a temptation for the DA or defense attorney to say they don't want a certain judge hearing a case, knowing how they feel about it." ... James, also known for his belief that the county deserves an elected public defender, thinks it's all a charade. "The candidates are willing to talk about safe stuff--like drug treatment for nonviolent offenders, and anger management for domestic abuse cases--but not the really tough stuff. That's what this is about." ... Not so, says Persky. "People have their opinions, but that doesn't necessarily mean that's how they're going to rule." And the gift of gab--or in this case, blab--"doesn't necessarily reflect how good a judge someone is going to be." For free entertainment, Eye suggests feisty John and Jane Q. Citizen show up at the upcoming League of Women Voters debate slated for Saturday, Oct. 19, at 10am in the Campbell Community Center and take a chance at cracking the judges on some controversial issues. It may be the only time you can haggle with their responses and not get a steeper fine.

Sonic Waves

Chutzpah might well be the middle name of Ken Potashner, the deposed CEO and chairman of Santa Clara digital media tech firm SonicBlue, whom Eye watchers may recall as the maker of the cutting-edge ReplayTV personal video recorders and Rio MP3 players. Potashner has a reputation for brash-and-clash--including leading SonicBlue's high-profile slugfest with 28 Hollywood studios, cable and TV networks over the legality of allowing consumers to delete commercials and share TV shows as digital files [See Metro's "The Battle for Your Eyeballs," April 4, 2002]. The would-be world shaker got himself canned in August after a headline-grabbing exchange with the company's board. During the confrontation, he demanded that board members repay the sweetheart loans they scored from the company earlier than planned, or resign. The board was unimpressed, to say the least, and Potashner tells Eye he is now suing SonicBlue for wrongful termination. ... Company insiders, however, tell a different story. They say that in reality Potashner orchestrated the crisis with his board, with whom he had other conflicts, because he found out a day before that he was going to get fired anyway, not to mention that his contract was about to run out. "It was clear [Potashner] was in a dispute with the board and one way or another something was going to happen. The only issue was whether he would retire on good terms or bad terms," an insider tells Eye. "The fact that it turned into a real blowout was a surprise." No slouch at the media game, Potashner alerted the San Jose Mercury News after he gave the board his ultimatum and was promptly sent packing. While agreeing that his contract ended in October, Potashner vehemently denies any advance knowledge of termination. "I did not know I was going to get fired," he says. "It would have been pretty foolish of [the board] to do that. If they wanted to get rid of me, why not just wait until the contract ran out?"... Meanwhile, Eye's source says, "a huge amount of damage has been done to the company" by its wholesale management overhaul, serious financial mistakes, a 30 percent workforce cut, litigation and the tanking economy. Under new leadership, SonicBlue will likely shift its focus away from groundbreaking technologies toward simple survival, including defending its right to continue selling its flagship ReplayTV unit. It may be too late for the company to back off from that make-or-break fight, which Potashner picked. "SonicBlue may have no choice; the networks may not accept surrender," the insider says. Instead, Hollywood apparently prefers to go to trial and settle the digital copying issue once and for all, in hopes of putting SonicBlue and similar firms out of business entirely. Stay tuned.

Ethical Lawyer Shortage

On really bad days, it seems to Eye like everybody and their mother is a lawyer. So, why is it so hard to find an attorney to legally chair San Jose's Ethics Board? A local email-based tipster parading around as "SJ Whistleblower" has been alerting media to the ironic absence of rule observance when it comes to the makeup of the ethics board. One daily columnist blew open the issue that the board lacks its requisite fourth and fifth members. It nevertheless continues to function, which means it gauges the dirtiness level of actions by political campaigners like Ed Voss, campaign donors like developer Robert Emami and campaign boosters/City Hall staffers like Dave Garretson Jr. Board leader Alex Stuart made his ruling on that political triangle, determining on Thursday, Oct. 10, that Voss was clean, but Emami's overfunding of Voss' campaign has to be further examined. That's good to know. But what about Stuart himself? The anonymous tipster points out that Stuart served his eight years on the ethics board from 1993 to 2000. The SJ Municipal Code states, "Members of the board shall serve up to two four-year terms for a maximum of eight years." The City Council reappointed him after he was termed out, and he's on the board until December. "All I know is I have been asked to serve an extended term," Stuart tells Eye. City spokesguy Dave Vossbrink concedes that, "Yes, his term was extended by the council because he's filling a critical seat requiring an attorney's expertise." But a term limit's a term limit. So Eye would like to pass along this job announcement: One attorney needed to fill seat on ethics board. Pays nothing in cash; but job is endlessly rewarding as it includes making moral judgments about others, while not necessarily following the rules yourself.

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From the October 17-23, 2002 issue of Metro, Silicon Valley's Weekly Newspaper.

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