Out on a limb

I’d like to take this opportunity to publicly apologize to Sacramento County Superior Court Judge Peter J. McBrien. According to McBrien’s testimony before the state Commission on Judicial Performance in April, the judge feels he has been “vilified by the Sacramento News and Review, which called him ‘Chainsaw McBrien’ and still portrayed him ‘as the Paul Bunyan of Sacramento.’”

I plead guilty, your honor. I’m sorry. It was childish, and I’ll never call you Chainsaw McBrien again.

But just for the record, exactly how many trees did you cut down? According to his testimony before the special masters who will decide his fate on the bench, McBrien can’t seem to remember.

It’s true, some time has passed since the judge was convicted for cutting down trees on public property back in 2000. To recap, the trees in question blocked the view from McBrien’s home overlooking the American River. They also happened to stand in the Effie Yeaw Nature Center.

As to their number, in an SN&R investigation of the incident (“A view to kill for” by Steve James; SN&R Feature Story; August 16, 2001), the park ranger who discovered the crime scene described it as several 50-foot-tall, 80-year-old oak trees that had been dismembered.

McBrien was charged with a felony, but paid $20,000 and got it dropped to a misdemeanor. He was later publicly admonished by the CJP.

The incident might have been forgotten if McBrien hadn’t come under later scrutiny for his actions in the 2006 divorce trial of Ulf Carlsson. The judge literally walked out of Carlsson’s trial before the litigant had presented his entire case. Carlsson overturned the decision on appeal, the appeal set a precedent and McBrien found himself before the commission once again.

According to the transcript from the April hearing, which was released in late June, McBrien’s defense attorney, James Murphy, revisited his client’s misdemeanor conviction to clear the air.

“But I want an explanation of what he actually did and show that it’s not related to his judicial duties,” Murphy objected. “It’s mitigation. I don’t think the judge has had an opportunity to explain.”

So the judge offered his explanation.

“Every one assumes I’m the Paul Bunyan of Sacramento,” McBrien testified. “In fact, it only involved one limb on one tree.”

The reader should understand that the commission placed the previous sentence in italics, and for good reason. McBrien’s statement doesn’t conform with the official record. Neither do his claims that the trees had been cut down for fire protection and that he’d only been convicted of violating a county ordinance, not the state penal code.

Noting that the commission’s admonishment made mention of the penal code violation, one of the special masters asked McBrien if he agreed with the language in the admonishment.

“No,” the judge answered. “I don’t know that I had the language, but possibly my attorney did.”

“Well, if your attorney had it, wouldn’t you have looked at it as well?”

“Presumably,” McBrien conceded.

McBrien repeatedly insisted that “only one limb” had been involved.

“You were ordered to pay $20,000 in restitution?” the special master asked.

“Correct,” the judge said.

“For one branch?” The special master’s remark isn’t in italics, but it fairly drips with incredulity, considering that the commission proceeded to introduce McBrien’s sworn testimony given after he pled no contest to the misdemeanor violation in 2001.

In his 2001 testimony, McBrien conceded the trees were cut to enhance his home’s view. He was then asked if his “present understanding is five mature and three small trees, as described in the search warrant affidavit?”

“That’s the basis of my understanding,” McBrien agreed.

This brought what Stephen Colbert might call the “truthiness” of McBrien’s April testimony into question. Rather than speculate whether it constituted perjury, in a show of good faith, I’ll give the judge the last word. Here’s his post-hearing response to the commission:

“Judge McBrien’s testimony regarding the arborist’s trimming of oak trees related to his own personal observation and not to the extent of the tree trimming activity that was the subject of the misdemeanor charge. Judge McBrien observed only one large limb cut from the oak tree in question and apologizes if there was any confusion regarding this testimony. Judge McBrien acknowledges that the limb he observed being removed was not the only cutting done by the arborist. … While view enhancement was an intended effect of the trimming, the testimony of Judge McBrien on April 3, 2009 was correct.”

Well, I’m glad we cleared that up. The commission’s decision determining McBrien’s fate on the bench should come any day now. But just for the record, your honor, that’s five big trees and three little ones. I didn’t use to call you Chainsaw McBrien for nothing.