By Mark Gutglueck
Bert Swift, an iconic member of San Bernardino County’s legal community whose ordeal resulted in a giant stride toward independence of the local judiciary, has died.
Swift retired from the bench in 2008, more than a decade after prosecutors tried and failed to bring him to heel by seeking his removal from office so they might then use that as a warning to other judges they felt were not accommodating enough to law enforcement. He continued to serve as a judge sitting on assignment for more than a dozen years after his retirement.
Born in 1940, Swift joined the Navy when he got out of high school, and he managed to land a berth in that service’s prestigious Navy Amphibious Scout and Radar School, becoming one of the first members of the Navy Seals when they became the U.S. navy’s primary special operational force in 1962.
Swift eventually moved into law enforcement after he left the military, going to work for the Palms Springs Police Department. He attended Western States College of Law, passing the bar in June 1977. He did not, as was common with lawyers who had previously worked in law enforcement, become a prosecutor with a district attorney’s office. Rather, he practiced primarily in the area of personal injury law and in criminal defense.
In 1989, he replaced Judge Richard Crouter as the Municipal Court judge in the Joshua Tree Judicial District. Crouter was an unabashedly pro-law enforcement jurist, one who could be counted upon to extend every courtesy and then some to Morongo Valley’s peace officers, those being San Bernardino County Sheriff’s Department deputies and detectives, as well as their supervising sergeants, lieutenants captains and deputy chiefs. Crouter was equally proud of his established reputation for never denying a motion made by a member of the prosecutor’s office, of which he had been a member before his elevation to the bench. Crouter was the municipal court judge in Yucca Valley from 1983 until 1989. Shortly after he took on that assignment, a sign had been posted inside the Joshua Tree jail that said, “You’re in Crouter Country now, Boy!” The sign was meant as a warning to inmates that they had little or no prospect of acquittal upon being criminally charged at the Joshua Tree Court and should anticipate the maximum sentence applicable to the crime being alleged upon what was to be an inevitable conviction.
The court system in San Bernardino County, a position in which Judge Swift had come to inhabit, for more than a century was one that was inordinately inhospitable to criminal defendants. As a strict matter of course, those arrested and charged with violating the law in San Bernardino County were traditionally presumed guilty and it was incumbent upon them to prove their innocence, quite often without the assistance of an attorney. Much of the public credited law enforcement officers with moral rectitude and were willing to grant them wide latitude in upholding the standards of civility and the law. Prosecutors were seen as the equally virtuous adjuncts to the police departments and sheriff’s department, whose assertions deserved the status of fact. Those who had been arrested and the criminally accused were considered to merit the disapprobation of society and whatever punishment was to be meted out to them. The vast majority of those arrested in San Bernardino County admitted their guilt and capitulated without a trial. Of those who went to trial, only a minute fraction were vindicated, which was as it should be, the overwhelming majority of the county’s decent, law-abiding populace, from which the court system’s jury pool was drawn, thought. As overwhelmingly lopsided in favor of the upholders of the law as the court system was in its urban areas of San Bernardino, Colton, Redlands and Ontario, the legal playing field was tilted even more in favor of the prosecution in the desert region at its Barstow, Needles, Victorville and Joshua Tree courthouses.
Lowell Lathrop, the San Bernardino County’s district attorney first elected in 1950 who served six terms before retiring in 1974, in the run-up to his reelection in 1958 gave an illustration of how excessively heavy-handed and brutal enforcement of the law was in San Bernardino County. In a speech before the Victorville Chamber of Commerce in 1958, Lathrop lamented that a series of rulings by both the California Supreme Court and U.S. Supreme Court had deprived his office and the county’s law enforcement agencies of the tools they had come to rely upon for making arrests, obtaining evidence, and gaining convictions. Explaining why it was growing increasingly difficult to keep criminals off the streets of San Bernardino County, Lathrop told those assembled at that day’s luncheon that sheriff’s department deputies could no longer pistol whip suspects to obtain a confession from them as they did in the past and that if they persisted in using that technique, the confessions obtained in that manner would be deemed inadmissible in court.
Lathrop was yet district attorney 12 years later when a group of reformers consisting of three of the county’s judges, some members of the grand jury and a handful of common citizens coalesced in an effort to restrain the rampant abuse of inmates in the county’s jails.
Raymond Pryke, was the foreman of the Grand Jury that had been impaneled in 1970. Pryke had taken on the grand jury foreman assignment at the instigation of Judge Joseph Katz, who was then the presiding judge of the San Bernardino County Superior Court, only on the condition that he be permitted to do something that would be, Pryke insisted, “meaningful.” With Katz’s pledge of support, Pryke, in conjunction with the grand jury foreman pro tem, Jim Mealey, who had been the trainmaster at one of the county’s railroad yards, to have the grand jury look into the running of the county’s jails. Pryke and Mealey took it upon themselves on one occasion to go to the Glen Helen Detention Center at midnight, virtually unannounced.
The facility was overseen by a sheriff’s department inspector, a rank used by the sheriff’s department at that time. The Glen Helen inspector served in a capacity tantamount to being the warden of a prison. After using their grand jury credential to get past the main gate and into the compound, Pryke and Mealey were delayed and made to wait outside the housing facilities of the detention center while the sheriff’s department inspector overseeing the facility was awakened from what was presumably a sound sleep and summoned. Upon the inspector reaching them, they went inside with him and informed him of who they were, declaring their intention to inspect the jail. The inspector, putting his hand to his lips, pointed to where there was a microphone in the room. He took them outside and told them that Sheriff Frank Bland knew they were there and was on his way, indicating that he would very likely lose his job if he showed them too much. The inspector took them inside and they began a tour of the facility. Before Bland arrived, they encountered prisoners who were being kept in cages.
Upon Bland showing up, Pryke and Mealey referenced the authorization they had been given by Judge Katz to inspect the facility. Bland, reluctantly, escorted them on a tour of the detention center, including Glen Helen’s infamous “hole,” its isolation ward. Bland, using his own key, opened each door to the separate sequestered and fully darkened cells. The occupants were bade to emerge, whereupon Pryke and Mealey explained to each inmate that they were with the grand jury and wanted to know how they were being treated. With the imperious sheriff of San Bernardino County glowering at each of the prisoners, Pryke and Mealey were given answers of varying degrees of candor. One of the prisoners in the hole told Pryke and Mealey, “Every three days they let you out and they beat you up and claim you attacked a deputy and then they throw you back in.” Pryke’s and Mealey’s conclusion, based on what they had seen, was that even measured against what were the lax standards relating to the conditions of confinement of that era, many of the prisoners in the county’s detention facilities were being barbarically treated.
Bland reacted virulently, suggesting that Pryke and Mealey and even Katz had ulterior motives. He had detectives with the department’s intelligence division and those attached to the department’s command echelon initiate investigations of all three.
When the grand jury’s report came out in November 1970, Bland had an immediate, and predictably negative, reaction.
“The grand jury just doesn’t know what it’s talking about,” he told the board of supervisors.
In private conversations with those he considered to be more sympathetic to law enforcement, Bland expressed himself somewhat differently, acknowledging that jails were unpleasant places and that the experience of jail and prison was intended to make a lasting impression on those consigned to them. Whatever experience those in jail underwent, Bland maintained, was a consequence of their own criminal acts.
Within a short span of time, his department produced a written response to the grand jury report that was intended to mollify his department’s critics. “The [grand jury] report is an incredible collection of half truths and misstatements. It was obviously prepared by people who, out of idealism, inexperience, and ignorance, have not obtained all the facts.“
Bland dismissed suggestions that those jailed were subjected to mistreatment, by either their keepers or other inmates. “Inmates classified to serve their time in maximum security are considered to be escape risks due to their past history of escaping, or the fact that they are facing a major prosecution in this county or elsewhere, due to the fact that they are addicted to the use of narcotics or dangerous drugs and will go to every means to sustain their habit, or they are homosexuals and must be isolated from the other inmates for their own protection and to prevent the occurrence of criminal sex acts.”
Nevertheless, evidence of Bland’s contempt for efforts to interfere with his employment of a harsh incarceration regime crept into the response, with an assertion that his approach was one that found favor with the public at large.
“The people throughout the United States are extremely dissatisfied with the present judicial system thinking only of the rights of the defendant and failing to consider the protection of society against the criminals,” he propounded.
Shortly after Bland succeeded in riding that storm out, more onerous clouds appeared.
Less than a year later, the sodomizing of prisoners in San Bernardino County’s jails was a front and center issue. Whereas before Bland had been able to retreat into the protection his status as county sheriff afforded him as well as the knowledge that the district attorney, Lathrop, had his back, this time two personages in the form of county municipal court judges threw their weight behind the grand jury’s reform effort. Judges John Lawrence and Roy Chapman turned information over to the grand jury indicating that prisoners, young prisoners in particular, had been subject to sexual abuse while in the custody of the sheriff’s department. While Lawrence’s and Chapman’s action had taken place on the down low and outside the view of the public, in early October 1971 Lawrence turned it into a public issue when he reduced sentences for two 18-year-old offenders to five days to be served in a rehabilitation center rather than send them to jail where he said they could be subjected to homosexual attack. Bland went ballistic, calling for the removal of Lawrence unless the judge could provide evidence to support his assertion about homosexual rape taking place in the county’s jails. Lawrence, Bland told the board of supervisors, was justifying his propensity for sentencing leniency “by saying the jails are unsafe for criminals.”
Faced with an exposition of a policy Bland might not be able to publicly defend, he asserted “All young people placed in the county jails are kept separate from known homosexuals or hardened criminals.”
Nevertheless, throughout the remainder of Bland’s tenure as sheriff and beyond, an unwritten rule in San Bernardino County was that unruly prisoners in the custody of the sheriff’s department and particularly ones who threaten deputies, their wives or their families with retribution, as well as those individuals arrested for threatening or overzealously questioning public officials were placed into confinement among the jail’s known homosexual inhabitants for what was referred to as “attitude adjustment.”
Pryke, to protect himself from investigative and enforcement action by the sheriff’s department and prosecution by the district attorney’s office, purchased and published five newspapers throughout the county.
Not quite two decades after the jailhouse abuse reform effort that Katz, Lawrence, Chapman, Pryke and Mealey involved themselves in, Bert Swift was elevated to the municipal court. The mechanics of law enforcement and incarceration were only slightly less brutal and the ethos of administering justice in San Bernardino County hardly any less perverse than two decades earlier. Judges were yet expected to rubberstamp every request for arrest or search warrants, grant without question every motion made by prosecutors, and side with the prosecution over the defense on any substantive issue of contention between them.
It had been assumed that Swift, with his background as a police officer, would fit in with the program. It soon became apparent, however, that Swift was not going to simply go along with the status quo. Sheriff’s deputies and detectives who sought search warrants were chastened to find that he actually read the affidavits they presented to him when they applied for the warrants, and that he would put them through their paces if he detected some anomaly in their paperwork or presentation. Occasionally, they were obliged to fortify their presentation with further information or materials before Swift would agree to a warrant’s issuance. He did not default to the highest bail amount during inmate bond hearings or at arraignments. He did not simply ignore or dismiss defense motions. Where he deemed them to have merit, Swift indulged defense discovery motions in the face of prosecutorial opposition. He denied at times prosecutorial motions in situations where the defense raised legally meaningful and factually substantial grounds, and he was disinclined to mete out harsh or lengthy sentences to defendants whose crimes or circumstances did not, in his analysis, match the representations or recommendation of the prosecution. One of the most difficult elements of being a judge, Swift said, consisted of “trying to find the right punishment to fit the crime.”
When Judge Patrick Morris, then the county court system’s presiding judge, floated the concept of a drug court at the county’s central courthouse in the county seat, Swift advocated that such a model in which those arrested on narcotic violations were diverted, at least on their first offenses, into treatment rather than incarceration be given a go in the Morongo Basin. Indeed, Swift went one better, calling for and then seeing implemented a mental health and drug treatment court in which treatment was considered as a first option in cases involving addiction or mental illness. Of that accomplishment, Swift said, “It’s probably the most successful judicial endeavor I have been involved in as a judge.”
Others disagreed. Prosecutors and law enforcement professionals were at best skeptical and more often downright dismissive of such approaches. They considered compassion when dealing with lawbreakers to be weakness or naiveté.
Prosecutors often used statistics to define their success. Artfully, the county district attorney would claim a “conviction rate” of 95 percent or greater. To the vast majority of the public this implied that the county’s prosecutors won more than 19 of every 20 cases that went to trial. In reality, however, very few criminal cases, statistically, go to trial. In actuality, less than five percent of criminal cases are heard by a jury or a judge in what is called a no-jury bench trial. More than 95 per cent of cases are resolved either through a straightaway guilty plea or through a plea bargain arranged by the prosecution and the defense, in most cases with some of the charges being dropped or reduced and the sentencing imposed generally on the other side of the maximum that could be applied as part of the inducement for the defendant to enter the plea. A ploy used by prosecutors often includes hitting a defendant with as many criminal charges as possible during arraignment, what is referred to in legal parlance as “overcharging.” This practice, which sometimes involves alleging crimes or elements of crimes that prosecutors actually know cannot, or are unlikely to, be proven, puts a defendant at a sharp disadvantage both psychologically and practically, as conviction on a string of crimes could conceivably result in a potential sentence of decades or more upon conviction, conditional upon the sentencing discretion of the judge hearing the case.
Judge Swift was not as indulgent as other judges in San Bernardino County of prosecutors’ use of overcharging. His tendency to read everything placed before him and question the basis of the rulings he was being requested to make, to say nothing of his rulings and findings against the prosecution, rubbed prosecutors the wrong way, in no little part because he threatened by doing so their vaunted 97 percent, 98 percent and 99 percent conviction rate claims. To them, it was as if Judge Swift really didn’t understand what he was doing; he was too dense to understand who the good guys were and who the bad guys were. As a judge, Swift was wrongheadedly seeking to assist criminals rather than punish them, or so it came across to them.
He just wasn’t all that bright, they concluded. Within the district attorney’s office he was given the nickname ‘Notso,” as in “not so swift.”
There arose a movement within the prosecutor’s office to do something about the problem Swift represented. In California, judges must stand for election or reelection every six years. The district attorney’s office’s deputy prosecutors resolved that come 1994, they would run a judicial candidate more philosophically and temperamentally suited to them. Some lined up as part of an effort to see Crouter returned to the bench. Others thought that Deputy District Attorney Gordon Isen, who worked out of the Joshua Tree branch of the district attorney’s office and had substantial experience appearing before Judge Swift, would make a stronger candidate.
In 1993, an opportunity presented itself for the district attorney’s office to use the same underhanded approach it sometimes used in getting convictions against criminal defendants against Swift along with the other judge then working out of the Joshua Tree Courthouse, James McGuire.
At that point, the Municipal Court and the Superior Court had not yet been merged in San Bernardino County. Judge Swift was the Municipal Court judge in Morongo Valley and Judge McGuire was the Superior Court judge in the same jurisdiction. McGuire was almost, though not quite, as unpopular with the legal and law enforcement establishment as Swift. Judge McGuire was a poorly closeted homosexual who previously had a private practice in Fontana. He had sought to mask his homosexuality by means of an elaborate but ineffectual shroud of deception which involved hiring a female acquaintance to accompany him to public events to serve as his “drape,” posing as his “significant other” while he was in actuality living with the man who would eventually become his husband in Palm Springs. McGuire early in his legal career had embraced liberalism and was widely seen as a “bleeding heart” type. Later, however, in seeking to advance himself within the confines of San Bernardino County’s legal community, he adopted an outward show of conservative leanings, having registered as a Republican and going out of his way to make a display of supporting the GOP position on high profile issues or in selected cases vociferously advocating for so-called right-wing causes. McGuire’s ruse had convinced Governor George Deukmejian, a die-hard pro-law enforcement chief executive and death penalty supporter, to appoint him to the Superior Court in 1989. Locally, nonetheless, those who knew Judge McGuire saw through him, and many establishment figures in San Bernardino County, including some in the district attorney’s office, resented him for his success in landing a position on the bench by subterfuge and despised him for his sexual orientation and his feeble effort to disguise it.
In February 1993, Swift married Diane Fox, who had four children by a previous marriage. They maintained two homes, the home Swift had previously lived in and one owned by Fox on Quail Springs Road in Joshua Tree. They divided their time between the two homes.
In 1993, the National Park Service, led by Ranger Todd Swain and Ranger Marion Damiano-Nittoli, was conducting an investigation into the theft and trafficking of
Native American artifacts from the Joshua Tree National Monument. Removal of such artifacts from public lands is illegal under federal law. A principal focus in the investigation was Warren Churchwell of Desert Hot Springs. While Swain was acting in an undercover capacity and tracing those who had contact with Churchwell in the possible trafficking of artifacts, he came into contact, in the fall of 1993, with Tony Soares, a craftsman experienced in creating reproductions of Native American artifacts. Soares, then 23, was the son of Diane Fox Swift and stepson of Bert Swift, who regularly stayed at the Quail Springs Road home in Joshua Tree on the two to three days per week he was not residing at his home in Palm Springs. Soares, who welcomed Swain into the Quail Springs Road home, showed him an olla, a ceramic pot fashioned by Native American tribesman presumably a century or more previously, which he acknowledged purchasing from Churchwell. Without being aware that Swain was a federal agent, Soares said he suspected it had been illegally taken from the Joshua Tree National Monument and he intended to return it to federal authorities overseeing the monument after restoring it. Soares also showed Swain two manos, ancient Native American grinding stones, and a metate, an ancient Native American mortar, he said he had found in the desert by Kelso, a town near but not within the federal jurisdiction of the East Mohave National Scenic Area.
In furtherance of their investigation, Swain and Damiano-Nittoli intended to carry out a series of searches under the authority of the federal court. Over a period of more than two months, however, the United States Attorney was unable to devote the time necessary to complete affidavits for federal warrants and so Swain and Damiano-Nittoli obtained warrants from a Riverside County court to search Churchwell’s home and a gallery in Palms Springs where Native American artifacts were displayed. They then went, on December 16, 1993, to the Joshua Tree Courthouse complex, where they met with Deputy District Attorney Ray Pyle, the supervising deputy district attorney in the Morongo Valley Office of the San Bernardino County District Attorney. Pyle read the warrant application for Soares’s residence, specifying the objects to be seized as the manos, the metate, the olla and items showing the ownership of the premises, and approved it. Pyle escorted the rangers to Swift’s courtroom and told the judge the rangers had a search warrant they wanted signed. Upon Pyle leaving, Judge Swift went into his chambers with the rangers and, after inquiring why they were seeking the warrant through the state court system rather than in a federal court and satisfying himself that he had jurisdiction on the matter under state law, began to read the affidavit for the warrant. Upon encountering Soares’s name and the address of the premises to be searched in the second paragraph of the affidavit, he read no further. He told Swain and Damiano-Nittoli that Soares was his stepson and that the property to be searched was his own residence. The rangers inquired as to Soares’s whereabouts. Judge Swift indicated he did not know and then, in the rangers’ presence, telephoned Dianne Fox Swift at her place of employment, asking where her children were. She responded as to where she believed Soares was. He relayed what he had learned to the rangers and then took them to Judge McGuire’s chambers. Judge Swift handed the warrant application to Judge McGuire and told him that he could not review it nor issue the warrant because it involved one of his homes and his stepson. Judge Swift remained present during the rangers’ interaction with Judge McGuire. He later maintained he had done so to allay any concerns that he would inform Soares about the impending search and avoid the appearance of impropriety if the search were to be conducted and concluded without the artifacts being recovered. Upon Judge McGuire finishing his reading of the warrant affidavit a discussion of the situation with the rangers ensued in which Judge McGuire referenced the urgency of conducting the search because the proposed search of Soares’s residence had been disclosed to Soares’s stepfather. When Judge McGuire inquired whether they could serve the Quail Springs Road residence search warrant that evening, the rangers said they could not because they did not have the manpower. Judge McGuire asked if they would be amenable to a consent search and asked the rangers if they wanted to have the district attorney’s office advise them. They responded positively to that suggestion and Judge McGuire dispatched his bailiff to summon Pyle.
Pyle had left for the day and Deputy District Attorney Linda Root instead responded to McGuire’s chambers. When she arrived, Judge McGuire, with input from Swain, explained the situation. Judge Swift indicated that he would cooperate in a consent search, and represented that his wife and stepson would also consent at his behest. Root at that point said she was on Richard Crouter’s campaign committee for the upcoming June election effort against Judge Swift for his position on the municipal court bench. She offered an assurance to Judge Swift that despite her advocacy of Crouter’s candidacy, she would maintain confidentiality concerning the matter. Judge McGuire inquired at least twice in Root’s presence if the rangers wanted to confer privately with Root. They declined. Swain asked about the legality of a consent search. Root explained the scope of parental capacity to consent, noting that an issue of voluntariness could arise concerning a consent by Fox or Soares. Judge McGuire inquired about the location of the manos, metate and olla, upon which it was determined the items were in common use areas or in plain view from common use areas of the dwelling. From these considerations Root concluded that there was no issue of voluntariness as to Fox and Soares because Judge Swift’s consent would suffice. She advised the rangers that in those circumstances a consent search would sustain any evidence admissibility challenges.
To Judge McGuire’s question as to whether they wanted to proceed with the consent search or instead carry out a warrant search, as he found the affidavit sufficient upon which to issue a warrant, Swain and Damiano-Nittoli elected to proceed with a consent search that evening. Swain obtained a consent to search form from his vehicle, which Judge Swift signed. Before the rangers and Judge Swift left his chambers, Judge McGuire gave the rangers a card with his home telephone number and assured them that he would be available to issue the warrant over the telephone if they developed any misgivings about the consent to search or any problems manifested during the consent search.
Judge Swift then drove from the courthouse parking lot, with Swain and Damiano-Nittoli following behind him, to the Quail Springs Road residence, some 10 minutes from the courthouse. Judge Swift led them into the house. Neither Soares nor Fox were home. Based upon two earlier visits to the home while he was working in an undercover capacity, Swain knew where the items sought were located. All the artifacts were where Swain had said they were during the chambers discussion, clearly visible from the living room. The door was open from the living room to Soares’s bedroom, where the olla was located on the top of a dresser. The items were seized.
The next day, December 17, 1993, searches of the Churchwell residence and the gallery were conducted. Churchwell was arrested. Swain filed reports with the Riverside County District Attorney, requesting the filing of criminal charges against Churchwell. Such a complaint was issued in January 1994 and in June 1994 Churchwell pleaded guilty to felony counts leveled against him. On the day following the Riverside search, December 18, 1993, Soares in response to a telephone request appeared voluntarily at the Palm Springs Police Department to be interviewed by Swain. Swain determined that a case for prosecution could not be made with respect to the grinding stones and mortar. His superiors were disinclined to prosecute Soares with respect to possession of the olla. Three months passed without a report pertaining to the search of the Quail Springs Road residence being submitted to the Riverside County District Attorney’s Office.
Sergeant Gregory Benge, a narcotics officer with the San Bernardino County Sheriff’s office and an active supporter of the candidacy of Deputy District Attorney Gordon Isen for election to the municipal court post held by Judge Swift, made an inquiry with the Riverside County District Attorney’s Office into the matter, at which point the Riverside County District Attorney’s Office issued a report dated March 27, 1994 in which a criminal filing against Tony Soares was declined. Following the solicitation by Benge, the rangers, in response to a request by Pyle, submitted a report on the events in chambers and the search that took place on December 16, 1993 to Pyle. Following receipt of that report, which was essentially a dry recitation of facts, Pyle specifically requested a “subjective” report on the chambers conference, stating that such a narrative was “necessary for a proper evaluation of the case against Tony Soares.” In response, Damiano-Nittoli filed a second report. On April 28, 1994, with the judicial election fast approaching, Pyle sent the reports to San Bernardino County District Attorney Dennis Kottmeier. Accompanying the reports was a note. It stated, “Please call when you’ve finished your review. Naturally, Gordon Isen would like to use this somehow in his campaign. Should we release info? If not, can it be leaked?” Pyle provided copies of the ranger’s reports to Crouter, as well. Pyle with glee told Crouter that revelation of their version of the incident would in all likelihood lead to Judge Swift losing the election.
On May 3, 1994, Pyle issued a rejection letter concerning the filing of charges against Soares. In the letter he asserted that the primary reason for rejecting the case was that the search was improper because Judge Swift could not consent to a search of the Quail Springs Road residence.
Pyle had creatively opened a pathway by which both Isen and Crouter had a basis in insinuation if not in fact to assert that Swift had used his position as a judge to derail a criminal prosecution, which was used in the election campaign against Swift. Despite the attack, Swift was reelected to the bench in the 1994 election.
The matter would not end there, however. The 1994 electoral cycle would result in two changes at the top of San Bernardino County law enforcement. Gary Penrod, who was the heir to the Bland political machine that had been in place since Bland was first elected in 1954 and which was instrumental in each of his successive reelections in 1958, 1962, 1966, 1970, 1974, 1978 and which was handed off to Bland’s endorsed successor Floyd Tidwell in 1982 and then by Tidwell to Richard Williams in 1990, was elected sheriff in the 1994 June Primary. Williams’ made a decision to take a comfortable retirement that year, and he endorsed Penrod, who cruised to an easy victory. In the district attorney’s office that year, Dennis Stout, the mayor of Rancho Cucamonga who had been a deputy prosecutor with San Bernardino County since 1977, had moved to challenge then-District Attorney Dennis Kottmeier, who had been the county’s top prosecutor since 1982. Kottmeier opted out of seeking reelection, and Stout defeated then-San Bernardino City Attorney James Penman in that year’s race. Both Penrod and Stout were intent, like all of those who had preceded them, to make a show of how tough on crime they could be. For Penrod, who was the product of a political and law enforcement dynasty that had been around for two generations, doing so was not as challenging as it was for Stout, who had bucked the status quo by wresting the title of district attorney from his incumbent boss, albeit without an actual fight. Still, Stout felt the need to show just how hard-nosed of a crimefighter he was, and ready-made for him was the contretemps surrounding Swift. Swift might have been able to fool the county’s voters into reelecting him, but he was still soft on crime, Stout and his second in command, Assistant District Attorney Dan Lough, figured, and they would achieve instant credibility with all of the county’s upstanding and right-thinking citizens, not to mention all of the district attorney’s office’s deputy prosecutors and the legions of police officers and sheriff’s deputies employed locally, if they could blow the lenient judge out of office. They signaled their willingness to support a move to go around the voters by having the California Commission on Judicial Performance look into what took place in Swift’s chambers and then made its way into Judge McGuire’s chambers on December 16, 1993. With a little luck, they figured, they could get Swift off the bench and maybe even send the limp-wristed McGuire packing as well.
Methodically, a group of individuals from the district attorney’s office, among whom Pyle, Root and Isen were a part, came together to compile separate complaints revolving around essentially the same set of facts. The purveyors of that complaint provided the basis for two “examiners” employed by the Commission on Judicial Performance, Dennis F. Coupe and Jack Coyle of the Commission’s Office of Trial Counsel, to make a case against Swift and McGuire.
Under examination was the judges’ comportment. The commission, based upon that complaint, agreed to direct the matter for official examination, issuing a notice of formal proceedings on February 6, 1996. The complainants, concerned that the commission might make an early conclusion that McGuire’s action had not reached in any way a level of impropriety worth consideration and on that basis might reject the entire complaint against Swift and McGuire, chose to file the complaints separately. It was, after all, Swift more than McGuire who was out of step with the county’s law enforcement establishment.
The commission in determining the matter was worth considering consolidated the complaints, turning the matter over to a panel of three “special masters,” chosen on May 7, 1996 from a list of legal experts submitted to the commission by the California Supreme Court. The three three special masters selected were Justice Coleman A. Blease, Judge James H. Chang and Judge Irma J. Brown. Blease, Chang and Brown took evidence in the matter and formulated a report to the commission, which consisted of William A. Masterson, Lois Haight, and Vincent McGraw, who were judges; Patrick M. Kelly and Robert C. Bonner, who were attorneys; and citizen members Christopher J. Felix, Ophelia Basgal, Eleanor Johns, David Malcolm, Harriet C. Salarno and Pearl West.
The gist of the complaint against Swift was that he engaged in willful misconduct in office, conduct prejudicial to the administration of justice that brought the judicial office into disrepute, improper action, and dereliction of duty within the meaning of Article VI, Section 18 of the California Constitution providing for the removal, censure, or public or private admonishment of a judge by violating the California Code of Judicial Ethics Canon 2A when he called his wife to determine the whereabouts of his stepson and that he had engaged in misconduct by remaining in Judge McGuire’s chambers after he brought Swain and Damiano-Nittoli there. The complaint targeting Swift further held that while he was in McGuire’s chambers he had engaged in additional misconduct by advocating a consent search of the Quail Springs Road premises. According to the complaint against Judge McGuire, he had shed discredit upon himself and the judicial office of which he was a member by improperly failing to sign a warrant authorizing a search of the Quail Springs Road property while the rangers were present in his chambers.
Judge Swift was represented in the formal proceedings by Thomas C. Brayton and Jones Mahoney, Brayton & Soll of Claremont. Judge McGuire was represented by Thomas R. Hudson of Ontario.
The process of examination ultimately did far more damage to the accusers than to the accused. In particular, when the administration of the district attorney’s office, by that time consisting of Lough and Stout, was called upon to produce the communications that had taken place between the prosecutors at the Joshua Tree office and the administration under Kottmeier in the 1993 and 1994 timeframe, it did not withhold materials that demonstrated the baldly political motivation of several of the prosecutors. At the forefront among the prosecutors based in Joshua Tree pushing for action against Swift primarily but also with regard to McGuire was Pyle, the head of the Joshua Tree prosecution office. Pyle, it appears, assumed that the senior administration of the district attorney’s office in San Bernardino would expurgate and selectively produce the documents relating to communications back and forth within the district attorney’s office that extended to Swift and the contemplated prosecution of Soares before it provided those communications to the Commission on Judicial Performance. As some of that communication reflected poorly on Kottmeier, Stout and Lowe, who had a political antipathy toward Kottmeier, made a calculated decision to pass it along to the Commission on Judicial Performance. Meanwhile, Pyle, believing the district attorney’s office’s administration would not provide as evidence anything that might make the prosecutor’s office look bad, figured he could make certain assertions, ones that were not factually correct, confident that documentation to disprove what he was saying was not in the possession of the Commission on Judicial Performance.
In his communication with Kottmeier in 1994, Pyle openly stated that Isen wanted to utilize information contained in Swain’s and Damiano-Nittoli’s reports in the judicial campaign. In his communications with Swain and Damiano-Nittoli, he asked them to produce a “subjective” report, meaning one that used starker language suggesting that Soares had broken the law and which left out nuances that suggested he perhaps did not have criminal intent and was going to return the olla to the federal government upon completing its restoration. Pyle was also hoping Swain and Damiano-Nittoli would make a stronger case that Swift had sought to shield Soares from prosecution. In his statements to the Commission on Judicial Performance, Pyle outright denied requesting such a “subjective” report. The commission, however, had copies of the request to contradict that. Moreover, during hearings the special masters conducted, Pyle maintained he had not provided to the Isen and Crouter campaign teams the materials relating to the Churchwell case and by extension the information relating to Soares, including the rangers’ interaction with Swift in his chambers and in McGuire’s chambers. There was testimony and evidence that controverted that. When questioned under oath, Crouter said that Pyle had provided him with the reports generated by the rangers.
The report on the special masters’ examination of and findings regarding the complaints against Swift and McGuire generated by the Commission on Judicial Performance dated February 11, 1997 and titled Inquiry Concerning Judges Swift & McGuire states “Pyle provided copies of the ranger’s reports to Crouter, another candidate in the election. Pyle enthusiastically told Crouter that revelation of their version of the incident would probably defeat Judge Swift. The commission notes that this finding directly contradicts Pyle’s testimony that he did not provide the materials to anyone. The commission does not find Pyle to be credible.”
The Inquiry Concerning Judges Swift & McGuire document states, “The examiners contend that the telephone call by Judge Swift to his wife violated canon 2A of the California Code of Judicial Ethics which adjures the avoidance of the appearance of impropriety. They argue the telephone call created the appearance that Judge Swift had a conflicting personal interest in the case. As a causal matter, the telephone call did not create the appearance that Judge Swift had a conflicting personal interest in the case. He already had disclosed and declared an actual personal interest conflict and announced that he could not act as the magistrate because of the conflict.”
The Inquiry Concerning Judges Swift & McGuire document states, “The examiners contend that remaining in Judge McGuire’s chambers created an appearance of impropriety prohibited by canon 2A and that he was using his ‘influence’ as a judge to obtain ‘confidential’ information about his stepson’s case, conduct prohibited by canon 2B.6. Canon 2B provides in pertinent part: ‘(1) A judge shall not allow family, social, political, or other relationships to influence the judge’s judicial conduct or judgment . . . . [¶] (2) A judge shall not lend the prestige of judicial office to advance the pecuniary or personal interests of the judge or others . . . .’ Judge Swift had a sound reason for remaining in Judge McGuire’s chambers that arguably advanced an important public interest, viz., promoting confidence in the integrity of the judiciary. Through no fault of his own, Judge Swift was placed in a dilemma because a potential charge of appearance of impropriety attended either alternative course of action available. Judge Swift cannot be charged with impropriety because he chose between them, absent a showing that the course of action he selected is clearly less preferable, i.e., more likely to undermine public confidence in the judiciary.”
The Inquiry Concerning Judges Swift & McGuire document states, “The examiners also contend that Judge Swift committed misconduct in Judge McGuire’s chambers by advocating a consent search, notwithstanding his ‘conflict of interest.’ The examiners argue that this created an appearance of impropriety. The special masters found, and the commission concurs, that Judge Swift did not engage in such advocacy. The examiners argue that advocating a consent search is improper because it is a use of nonpublic information for a purpose unrelated to his judicial duties in violation of canon 3B(11). However, the use, if any, of nonpublic information here is related to Judge Swift’s judicial duties, i.e., to the prevention of the potential discredit to the judiciary if the planned searches were conducted fruitlessly after he had the opportunity to alert his stepson or other family members about the impending search. Canon 3B(11) is as follows: ‘A judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity.’ The examiners argue that advocating a consent search was improper because it created ‘admissibility issues’ as to the evidence obtained. The rangers were represented by an experienced prosecutor who advised them concerning such issues. The examiners contend that by remaining in Judge McGuire’s chambers Judge Swift violated Code of Civil Procedure section 170.3, subdivision (a)(1) which provides: ‘Whenever a judge determines himself or herself to be disqualified, the judge . . . shall not further participate in the proceeding . . . .’ In their view, the word ‘participation’ should be construed broadly. The prohibition on participation, however, pertains to participation as a judge, i.e., as a judicial decision maker. If a judge discerns a personal interest in a controversy and determines he is disqualified, he could nonetheless ‘participate’ in some other capacity in appropriate circumstances, e.g., intervene in the proceeding as a litigant or testify as a witness. The evidence was clear and convincing that Judge McGuire had assumed the role of decision maker, and that any participation by Judge Swift thereafter was nonjudicial.”
According to the commission, Judge Swift “did not commit misconduct in the Superior Court judge’s chambers by advocating a consent search of the property or by remaining in the Superior Court judge’s chambers.” The commission further found that “even if Judge McGuire should have signed the search warrant while the rangers were present, we are unable to conclude, in light of the unusual facts confronting Judge McGuire, that his failure to do so constitutes misconduct. His mistake, if any, was at most legal error. The commission accepts the special masters’ conclusion that these proceedings should be dismissed.”
The effort to discredit Judge Swift and wound Judge McGuire failed. Moreover, the episode brought out the lengths the prosecutor’s office was willing to go to, including making outright false claims and then backing those claims with the perjured testimony of a supervising deputy prosecutor, in the effort to remove Swift from the bench. Rather than bringing the judges and the bench into disrepute, the matter shed discredit on the prosecutor’s office, turning a spotlight on the degree to which the district attorney’s office had come to expect that its prosecutors’ assertions were to be credited by the courts as fact. To not only Judge Swift and Judge McGuire but to all of the county’s other judges, the case proved a meaningful and resounding lesson in the principle of judicial independence.
Judge Swift was once asked how it was that he had the strength and will to stand up to the long arm of the law and resist the tendency of police and prosecutors to trample on the rights of the citizens they arrest and prosecute. Swift said that as a Navy Seal, he had involved himself in surreptitious missions affixing trackers on Soviet naval vessels and the ships of other potentially hostile powers as their crews unsuspectingly pulled into some port of call and that he had just as intrepidly placed listening devices on undersea communication lines used by the United States’ Cold War foes. That involved a certain degree of risk, he said, and if he had been caught, he knew that things would not have gone well for him. He said he figured that if he was willing to stand up to the enemies of America’s values abroad as a young man, it would be no more difficult as an older man to stand up to those who were acting against what America is all about at home, and he would have had a hard time forgiving himself if he did not.
Judge Swift is survived by his wife, Dianne Swift, daughters Lynn Swift and Tanya Fox, sons Tony Soares, Brad Soares, Ash Fox, and Jason Sexton. Judge Swift had 11 grandchildren and six great-grandchildren.
Judge Bert Swift, Who Defied San Bernardino County Court System’s Ethos Of Automatic Guilt, Gone At 81
By Mark Gutglueck