By Robert Selna
S.F. Daily Journal - Jul 15, 2004
SAN FRANCISCO - Whether scolding combative lawyers or putting bad guys in prison, the judge retrying the Oakland Riders case has cut a stern profile while handling colorful cases throughout his career as a prosecutor and judge.
Judge Jeffrey Horner most recently made headlines in 2003 when he sentenced firebrand defense attorney Maureen Kallins to 20 days in jail. At the time, Horner, 66, described Kallins' sentence as "richly deserved," for her courtroom antics, such as sticking out her tongue at a prosecutor, belching audibly and violating court orders during a rape case.
As an Alameda County deputy district attorney from the 1960s through the '80s, Horner successfully prosecuted Symbionese Liberation Army member Wendy Yoshimura for possessing explosives as well as David Mason for killing four elderly Oakland residents and a fellow inmate while awaiting trial. As the supervising attorney in the district attorney's Berkeley office, Horner was known to clash with the city's liberal judges over drug and prostitution cases.
"He was a moralistic man about his work. He was really a true believer as a prosecutor," said John Burris, who served in the district attorney's office alongside Horner and now is an East Bay civil rights attorney.
Burris, who obtained $10 million in a settlement with the city of Oakland for civil plaintiffs allegedly roughed up and falsely arrested by the former Oakland police officers who called themselves the Riders, said he believes Horner was a good choice for the retrial.
"The case needs a judge who will try to get the lawyers to stay within the four corners of the courtroom and not grandstand," Burris said. Thus far, Horner has done that.
Before lawyers began pretrial arguments in late June, the judge issued a sweeping gag order, prohibiting "anyone assigned to work on the case" from discussing it with the media. He barred cameras - including cell phones with cameras - and electronic recording devices from the seventh floor of Oakland's Rene C. Davidson Courthouse, where the case will be tried. Noting the gag order, Horner declined to be interviewed for this story.
While the first Riders trial attracted intense media coverage, the press was not widely identified as the reason the case ended in a mistrial.
Pundits blamed the result on the jury foreman - a night law student who reportedly insisted he would never vote for a conviction on any charge, and persuaded others to follow him.
Critics also noted that although all the alleged victims were black, no blacks served on the 12-member jury.
On Sept. 30, 2003, after a trial that lasted more than a year, the jury found former officers Clarence "Chuck" Mabanag, 38, Jude Siapno, 35, and Matthew Hornung, 32, not guilty of eight misconduct charges and deadlocked on the remaining 27 charges. A fourth accused former officer, Frank Vasquez, 46, is a fugitive believed to be in Mexico.
In addition to imposing the gag order, Horner has underscored that he intends to run a disciplined courtroom.
First, he warned the defense attorneys not to engage in "invective and rhetoric."
"The law and facts will drive my decisions in this case, not accusations by one side against the other," Horner told the lawyers. "That's just a friendly word of advice to counsel - leave your rhetoric and spin in your offices."
Defense attorneys Mike Rains, Edward Fishman and William Rapoport as well as prosecutors Terry Wiley and Ben Beltramo appeared to take Horner seriously. They have kept their personal attacks to a minimum thus far.
Horner later told the lawyers they would have to cancel any vacation plans that conflicted with the pretrial motions scheduled to run through the middle of this month, ahead of a trial set for Sept. 27.
Thus far, Horner has denied every defense motion filed, including a motion for change of venue and a motion to dismiss for alleged prosecutorial misconduct.
In a blow to the defense's trial strategy, Horner barred evidence that the Rider cops were pressured by superiors to enforce a "zero tolerance" policy on drug dealing. Rains hammered on that theme in the first trial.
Defense attorneys who have tried cases in front of Horner universally describe him as conservative. One who wished not to be named described him as "humorless" and a "strict fellow."
That attorney said it was in character for Horner to anticipate problems - such as attorneys talking to the news media and fighting with each other - and set ground rules to halt the problems before they could start.
Other attorneys said that while Horner is intimately familiar with most arguments a prosecutor is likely to make in any criminal case, he gives each side every opportunity to make its points.
Oakland private defense attorney Kim Kupferer said Horner proved to her that he was fair several years ago. He granted her mistrial motion after a testifying police officer intentionally blurted out information the judge had ruled inadmissible, she said.
Kupferer said Horner's ruling was significant in light of the charges - possession of 250 rocks of crack cocaine for sale.
"He is very conservative, and it comes across in sentencing and his ability to cite all the cases that prosecutors would ordinarily use, but he strives to run a fair courtroom," Kupferer said.
But Horner's most notable sentence was probably the one he delivered to Kallins.
During a State Bar Court disciplinary hearing in April 2004, Horner testified to Kallins' reaction when he originally sent her to jail for nearly three weeks.
"She turned her back on the court and bent over and shuffled papers in the file box," Horner said. "The only part of her anatomy that was visible to me was her hindquarters."
The State Bar has yet to rule on Kallins' case, in which she is facing a three-year suspension for misconduct. In an unrelated matter, she currently is not entitled to practice because of an unresolved fee dispute with three clients, according to the State Bar.
Reached at her home in home in Washington state, Kallins, 54, declined to comment.
In November, after nearly four years, the 9th U.S. Court of Appeals largely upheld Kallins' sentence. Despite an apology and pleas from her husband and lawyer, Charlie Gretsch, Horner sent Kallins to Santa Rita Jail and made her pay a $4,300 fine.
"An attorney must be an example of lawfulness, not lawlessness," Horner said at the time.
BIOGRAPHICPeople v. Jones, 144961 - murder
Judge, Alameda County Superior Court
Career highlights: Appointed by Gov. George Deukmejian, 1990; judge, Oakland Municipal Court, appointed by Gov. George Deukmejian, 1986; deputy district attorney, Alameda County, 1982-86; attorney, Crosby, Heafy, Roach May, 1981-82; deputy district attorney, Alameda County, 1966-81; attorney, Office of General Counsel, UC Berkeley, 1965-1966.
Law school: Boalt Hall, 1963
Here are five cases that Judge Horner recently presided over:
- People v. Alexander, 14733 - Vehicular manslaughter
Prosecution: Colleen McMahon, deputy district attorney, Alameda County.
Defense: Andrew Steckler, deputy public defender, Alameda County.
Prosecution: Delia Trevino, deputy district attorney, Alameda County.
Defense: Douglas Warrick, private defense counsel, Oakland.
People v. Porter and Davis, 143935 - murder
Prosecution: Melissa Krum, deputy district attorney, Alameda County.
Defense: Spencer Strellis, private defense counsel, Oakland; and Michael Berger, private defense counsel, Oakland.
People v. Bankston, 142735 - rape
Prosecution: John Mifsud, deputy district attorney, Alameda County.
Defense: Judy Browne, deputy public defender, Alameda County.
People v. Winbush and Patterson, 128408 - murder
Prosecution: Morris Jacobson, deputy district attorney, Alameda County.
Defense: private defense attorneys Michael Berger of Oakland, Alex Selvin of Santa Fe, N.M., Spencer Strellis of Oakland and Richard Krech of Oakland.