Supreme Court of California Justia
Docket No. S122590
In re Freeman


Filed 5/16/06

IN THE SUPREME COURT OF CALIFORNIA

In re FRED HARLAN FREEMAN,
S122590
on
Habeas
Corpus.

Petitioner Fred Harlan Freeman was sentenced to death for the January
1984 murder with special circumstances of Donald Koger. We affirmed the
judgment on direct appeal. (People v. Freeman (1994) 8 Cal.4th 450.)
On February 10, 2004, Freeman filed a third petition for writ of habeas
corpus presenting four claims. Each claim relied at least in part on the allegation
that the Honorable Stanley P. Golde of the Alameda County Superior Court, who
presided over Freeman’s trial, had an ex parte conversation with the prosecutor
during which he directed the prosecutor to excuse Jewish prospective jurors from
the jury, and that the prosecutor followed Judge Golde’s advice in exercising his
peremptory challenges. We issued an order to show cause why relief should not
be granted on the grounds that the trial judge actively colluded with the prosecutor
to secure a conviction and death sentence and that the prosecutor improperly
exercised peremptory challenges on the basis of religion at the advice of the trial
judge. After receiving respondent’s return, we directed the Presiding Judge of the
Santa Clara County Superior Court to select a judge to serve as a referee at an
evidentiary hearing. The presiding judge selected the Honorable Kevin Murphy,
and we appointed him as our referee to take evidence and make findings of fact on
specified allegations.
1



On April 5, 2005, the referee issued his report. He found that Judge Golde
did not direct the prosecutor during an ex parte conversation to excuse prospective
jurors who were Jewish and that the prosecutor did not in fact excuse any
prospective juror who was Jewish or who the prosecutor believed to be Jewish.
After carefully considering the record and the briefing in this court, we likewise
conclude that Freeman has failed to prove the allegations in the petition. The
order to show cause is discharged.
BACKGROUND
A. The Underlying Judgment
The facts underlying Freeman’s convictions are not pertinent to the issues
encompassed in the order to show cause. It suffices to note that a jury convicted
Freeman of the first degree murder of Donald Koger with the special circumstance
of robbery murder, five counts of robbery, and three counts of attempted robbery,
all with the personal use of a firearm. Freeman and two others, one a codefendant
at trial, robbed the patrons of a neighborhood bar in Berkeley. Freeman shot
Koger in the left side of the head, killing him. After the other two robbers fled,
Freeman stayed behind and took property from the patrons one by one. Three
eyewitnesses identified Freeman as the gunman who killed Koger, and another
identified him tentatively. Carmen Maria Horton, who was Freeman’s friend and
the codefendant’s girlfriend, testified that she was with both Freeman and the
codefendant shortly after the crime. Freeman told her that they had gone to the bar
to “rob” it, and that he had shot the victim. He showed her the gun he used, which
she later sold. (See People v. Freeman, supra, 8 Cal.4th at pp. 469-471.)
B. The Habeas Corpus Proceedings
The third petition for writ of habeas corpus alleged, among other things,
that Judge Golde “directed and encouraged [the prosecutor] to exclude Jewish
2

prospective jurors, and that the prosecutor both acknowledged and followed the
trial judge’s advice.” The petition also alleged that the prosecutor and the
Alameda County District Attorney’s Office had a “standard practice” of excluding
Jews and African-American women from capital juries.
The allegations were based on the declaration of the trial prosecutor, former
Alameda County Deputy District Attorney John R. Quatman, dated May 29, 2003.
Paragraph 10 of that declaration states in relevant part: “One time . . . Judge
Golde called me into chambers and asked rhetorically ‘Quatman, what are you
doing?’ When I asked what the problem was, he said I had not challenged a
prospective juror who was Jewish. . . . He said I could not have a Jew on the jury,
and asked me if I was aware that when Adolph Eichman[n] was apprehended after
World War II there was a major controversy in Israel over whether he should be
executed. Judge Golde said no Jew would vote to send a defendant to the gas
chamber. I thanked Judge Golde for his advice, and thereafter excused any
prospective juror who was Jewish. Actually, Judge Golde was only telling me
what I already should have known to do. It was standard practice to exclude
Jewish jurors in death cases; as it was to exclude African-American women from
capital juries.”
On July 28, 2004, we issued an order to show cause why relief should not
be granted on the ground that “(1) the trial judge actively colluded with the
prosecutor to secure a conviction and death sentence, and (2) the prosecutor
improperly exercised peremptory challenges on the basis of religion at the advice
of the trial judge.” In the return, the People, represented by the Attorney General,
denied the relevant allegations and asked that a referee be appointed to resolve the
conflict. We thereafter appointed a referee to hear evidence and make findings of
fact on these questions:
3

“1. Did Judge Stanley Golde commit the acts alleged in paragraph 10 of
the declaration of John R. Quatman . . .? If so, exactly what did he do, and where,
when, and under what circumstances did he do it?
“2. Did John R. Quatman exercise any peremptory challenges at trial
against any prospective juror who either was Jewish or who[] he believed was
Jewish? If so, whom did he challenge, and why did he challenge that person? Did
John R. Quatman exercise any peremptory challenges on the basis of religion on
the advice of Judge Golde?”
The referee heard testimony from nearly two dozen witnesses over five
days, including former Deputy District Attorney Quatman. The referee also
considered numerous documentary exhibits. Judge Golde, however, had died
several years before Quatman made these allegations and thus was not available to
testify. Following the hearing, the referee found that Quatman’s testimony was
unworthy of belief and answered the critical questions in the negative.
The parties have filed postreference briefs on the merits. Freeman has also
filed exceptions to the referee’s report and a motion to take additional evidence.
We address the referee’s individual findings and Freeman’s specific exceptions to
them only insofar as they are relevant to the two questions before us: (1) Did
Judge Golde advise Quatman to exercise peremptory challenges against Jewish
prospective jurors in Freeman’s trial?, and (2) Did Quatman exercise peremptory
challenges at trial based on the juror’s actual or perceived religion?
DISCUSSION
Freeman in essence advances two legal claims. First, he argues that Judge
Golde colluded with the prosecutor, John R. Quatman, to secure a conviction and
death sentence by calling Quatman into chambers for an ex parte conference in
which he advised Quatman to exclude a Jewish prospective juror. He contends
that the judge’s advocacy denied him his right to be tried before a neutral,
4

disinterested tribunal (In re Murchison (1955) 349 U.S. 133, 136) and violated an
assortment of state and federal constitutional rights. Second, Freeman argues that
Quatman deliberately and unconstitutionally used peremptory challenges to
exclude Jewish prospective jurors in violation of Batson v. Kentucky (1986) 476
U.S. 79, People v. Wheeler (1978) 22 Cal.3d 258, and numerous state and federal
constitutional provisions.
As previously indicated, the referee, after hearing evidence, found no
factual basis for these claims. He determined that the alleged ex parte
conversation did not occur and that Quatman did not exercise his peremptory
challenges on an impermissible basis.
In evaluating Freeman’s allegations, this court gives great weight to those
of the referee’s findings that are supported by substantial evidence. (In re Cox
(2003) 30 Cal.4th 974, 998; In re Johnson (1998) 18 Cal.4th 447, 461; In re Ross
(1995) 10 Cal.4th 184, 201.) “This is especially true for findings involving
credibility determinations. The central reason for referring a habeas corpus claim
for an evidentiary hearing is to obtain credibility determinations (In re Scott
(2003) 29 Cal.4th 783, 824); consequently, we give special deference to the
referee on factual questions ‘requiring resolution of testimonial conflicts and
assessment of witnesses’ credibility, because the referee has the opportunity to
observe the witnesses’ demeanor and manner of testifying’ (In re Malone (1996)
12 Cal.4th 935, 946).” (In re Thomas (2006) 37 Cal.4th 1249, 1256.) With that
standard in mind, we proceed to consider Freeman’s allegations.
A. Whether Judge Golde Initiated an Ex Parte Conversation With the
Prosecutor and Advised Him to Exclude a Jewish Prospective Juror
In late 1986, Quatman, then an Alameda County Deputy District Attorney,
was assigned to prosecute Freeman before Judge Golde. This was Quatman’s first
capital prosecution but not the first time he had appeared in front of Judge Golde.
5

In addition to their professional relationship, Quatman and his wife were both
“close” to Judge Golde, who had been a guest at their wedding. Freeman’s
attorney, Spencer Strellis, also had a preexisting relationship with Judge Golde;
the two had practiced law together before Golde was appointed to the bench.
The sequestered Hovey voir dire,1 which in this case encompassed
questions concerning the jurors’ views of the death penalty as well as general
questions, began on February 3, 1987, and lasted until April 23, 1987. Those
prospective jurors who were not excused for cause were directed to return on
April 29, 1987, for what local attorneys called the “big spin.” In the big spin, the
names of all of the remaining prospective jurors were placed into a tumbler, and
12 names were pulled out to be seated in the jury box. At that point, and without
any further questioning, the parties would proceed to exercise their peremptory
challenges, with the defense allowed to go first.
Quatman testified that on April 28, 1987, the day before the big spin, Judge
Golde held an off-the-record conference with the attorneys in which he offered
them each five “extra challenges” or “freebie[s]” to be used at that time to excuse
jurors they did not want. Strellis exercised that option; Quatman did not.2 It was

1
The trial in the present case preceded the passage of Proposition 115 in
1990, and therefore was governed by Hovey v. Superior Court (1980) 28 Cal.3d 1,
80 (Hovey).
2
Strellis characterized the offer as one to “revisit” prior challenges for cause.
The referee made a factual finding that Judge Golde had granted a similar
opportunity to revisit for-cause challenges prior to the big spin in a different
capital case, People v. Day (Super.Ct. Alameda County, 1987, No. 76328), based
on testimony from Professor Stephen Thaman, who was then an Alameda County
Public Defender, and from Justice Carol Corrigan, who was then an Alameda
County Deputy District Attorney. We accept the referee’s express finding that the
parties had such a conference in the Day case and the referee’s implied finding
that a conference of a similar nature occurred in this case.
6



after this off-the-record conference and a brief hearing in the courtroom that,
according to Quatman, the ex parte conversation occurred. Although Quatman
retired from the Alameda County District Attorney’s Office in 1998, he never told
anyone about the ex parte conversation until March 2003, when a staff attorney
with the California Appellate Project visited him and his wife in Montana to
discuss a case his wife had been assigned. Quatman executed a declaration
describing the conversation in May 2003.
At the reference hearing, Quatman testified that as he and defense counsel
were leaving the courtroom, Judge Golde said “Jack” and crooked his finger so as
to indicate that Quatman should come into chambers. Judge Golde asked, “What
are you doing?”—apparently referring to Quatman’s failure to challenge any
jurors prior to the big spin. Quatman replied, “What do you mean what am I
doing?” Judge Golde then reportedly scolded, “You didn’t challenge the Jew.”
“And I said, ‘What are you talking about?’ And he said, ‘No Jewish person could
sit on a death penalty jury and return a verdict.’ And I said, ‘Why?’ And he told
me about [Adolf Eichmann] and the problems in Israel when they finally caught
him and what to do with him. . . . And I thanked him for his advice and I left
chambers.” Quatman testified that he subsequently exercised peremptory
challenges at the big spin against three jurors—Juror Mishell, Juror Peisker, and
Juror LaPut—because he believed they were Jewish.
However, neither Freeman nor Quatman offered any evidence that these
jurors were actually Jewish.3 To corroborate Quatman’s testimony, Freeman
instead offered notes that Quatman had taken during voir dire and in preparation

3
Indeed, at the evidentiary hearing, the parties stipulated that Juror Mishell
was not Jewish, but her husband was. The parties further stipulated that Mishell
was a “Jewish name.”
7



for the big spin. Quatman testified that he had taken notes during voir dire and
had rated the prospective jurors on a scale of zero to 10. A zero rating was a
“must kick,” i.e., a juror Quatman was determined to excuse if he had enough
challenges; a 10 rating was a “must keep,” i.e., a juror Quatman wanted to keep on
the panel. Ideally, Quatman wanted to keep only jurors who rated a six or higher.
Quatman testified that he subsequently distilled the information from his voir dire
notes onto rolodex cards, which were the only notes he used during the big spin.
These rolodex cards, too, carried his zero-to-10 rating of the prospective jurors.
Quatman claims that, following his ex parte conversation with Judge Golde, he
reduced the ratings for two prospective jurors, Juror Peisker and Juror LaPut.
Quatman testified that he initially rated these prospective jurors four and three,
respectively, but reduced their ratings to zero when he prepared his rolodex cards
because he believed they were Jewish. Quatman also testified that he had rated
Juror Mishell a zero even before his alleged conversation with Judge Golde.
The referee determined that Quatman’s claim that Judge Golde advised him
to exclude Jewish prospective jurors during an ex parte conversation was not
credible and determined that the conversation did not occur. We accept the
referee’s determination for several reasons.
First, Freeman fails to persuade us that Judge Golde would have chastised
Quatman for failing to challenge a Jewish prospective juror before the big spin—
i.e., before the parties had had any opportunity to exercise their peremptory
challenges. Assuming, as Freeman does, that Juror Mishell must have been “the
prospective juror Judge Golde had in mind when he cautioned Mr. Quatman that
he had failed to take the opportunity to remove a Jewish prospective juror during
the unreported chambers proceedings on April 28, 1987,” it remains to be
explained why Judge Golde would have perceived a need to commit misconduct
by advising Quatman how to pick a jury at this very early stage. If, as the referee
8

found occurred in the Day case and as Defense Attorney Strellis testified occurred
here, Judge Golde gave the parties an opportunity to revisit earlier for-cause
challenges in the unreported conference, then Quatman’s failure to challenge Juror
Mishell would not have alarmed Judge Golde, inasmuch as Quatman had not
earlier asserted a for-cause challenge to Juror Mishell. Even if, as Quatman
claimed, the unreported conference was an opportunity for the parties to exercise
five challenges as they wished just prior to the big spin, Quatman’s failure to
challenge Juror Mishell at that point would not likely have caused Judge Golde
any concern, either. Quatman had already elicited from Juror Mishell that she was
unsure the death penalty should exist, that she did not believe it was fairly applied,
and that she would have difficulty voting for the death penalty for crimes other
than those of the type committed by Charles Manson. Judge Golde had further
indication of Quatman’s state of mind when he corrected Quatman during voir dire
for saying that Juror Mishell “might” be able to vote for the death penalty if she
believed it was appropriate for a murder during the course of a robbery: “She
didn’t say ‘might,’ she said she thinks she could. You’re not going to get an
affidavit in blood.” And, if that were not clear enough, Quatman stated to the
juror baldly, “You see, my feeling is that you’re being reserved or there’s some
reservations about it that you’re not being totally honest about.” When the juror
admitted, “I don’t feel comfortable about it,” Judge Golde interjected, “You don’t
have to explain” and turned the questioning over to defense counsel. No one
would be surprised, least of all an experienced jurist like Judge Golde, that
Quatman had rated the juror a zero—meaning “must kick”—based simply on her
voir dire.
9

Moreover, as Quatman testified, he did not always raise what he considered
to be meritorious challenges for cause before Judge Golde in this case because he
had been given so many peremptory challenges.4 “So I felt in the Freeman case
that I had things fairly well under control.” Freeman offers no reason why Judge
Golde would have viewed the situation any differently.
Second, there were material inconsistencies between the ex parte
conversation Quatman described to Attorney Daniel Horowitz shortly after the
allegations were made public and the ex parte conversation Quatman described at
the reference hearing. At the reference hearing, Quatman testified that Judge
Golde called him into chambers after the parties had finished an off-the-record
conference. Yet, in a telephone conversation with Horowitz in the summer of
2004, Quatman “didn’t frame it . . . in terms of a summons.” As Horowitz
explained it, being summoned is different from “just kind of ‘kicking it’ with the
judge and just talking about cases in general terms.” Moreover, the description
Quatman provided at the reference hearing was that Judge Golde, in his formal
role as a judge, had complained that Quatman did not excuse a Jewish prospective
juror and was essentially advising him to do so. Yet the version described in the
conversation with Horowitz was quite different: “The way he related it was that,
we were just—‘Dan, we were just sitting around in chambers and bullshitting like
we always do.’. . . [H]e framed it in the sense, he was sort of drawing on my
knowledge of how things work, which is, that you sit around in chambers and just
shoot the breeze with the judges in a social manner. . . . He just described the
conversation where they were just essentially ‘bullshitting’ back and forth, to use

4
The defense was given 26 joint peremptory challenges, plus five separate
challenges for each of the defendants, Freeman and Gutierrez. Quatman was
given 36 peremptory challenges.
10



his words, and there never was in his relation of this incident to me, any concept of
the judge instructing him to take any action one way or another. . . . [N]ever in
there was there any intimation or statement that Stanley Golde told him to do
something or that he did anything in response to what Stanley Golde told him to
do.” Indeed, although Horowitz had heard that Quatman claimed “Stanley Golde
told him to knock the Jews off the jury,” Quatman cautioned Horowitz that “it’s
not as strong as the way the papers got it.” A few months later, after reviewing
Quatman’s declaration, Horowitz believed the declaration differed from what
Quatman had said to him a few months earlier and called Quatman to tell him so.
Quatman responded, “Dan, Golde told me to challenge the Jewish people and I
did.” Horowitz replied, “Well, that’s not what I remember you saying.”
These inconsistencies support the referee’s finding, which we accept, that
Freeman failed to establish, by a preponderance of the evidence, that the ex parte
conversation Quatman described in his declaration and at the reference hearing
actually occurred. Unlike Freeman, we do not believe the referee’s assessment of
Horowitz’s credibility was fatally undermined by the fact that Horowitz did not
take notes during his conversation with Quatman, that Horowitz could not recall
who first alerted him to the allegations Quatman had made about the Freeman
case, or that Horowitz was concerned the allegations reported in the press “might
hurt” Judge Golde’s family. Nor do we conclude, as Freeman does, that the
referee’s restriction on counsel’s attempt to ask Horowitz how long he had been
testifying on direct examination or that the referee’s failure to observe Horowitz’s
gaze during his recollection of a portion of his conversation with Quatman
establishes that “[t]he referee’s purported ‘credibility’ determination . . . reflects
nothing more than his result-oriented reliance on selective note-taking to find, in
direct contradiction of the record, that Mr. Quatman made ‘inconsistent
statements.’ ”
11

Third, Quatman’s character for honesty and integrity was poor. Colton
Carmine, an Alameda County Deputy District Attorney who had known Quatman
since 1976 and had worked with him for 20 years, testified that Quatman
exaggerated a lot and was not ethical. He also cautioned that “[i]f it didn’t serve
his purpose, he wouldn’t tell the truth.” Julie Dunger, another Alameda County
Deputy District Attorney, testified that Quatman is dishonest and that he
exaggerates. Michael Roman, a criminal defense attorney who had known
Quatman for over 25 years, testified that Quatman was not an honest or credible
person and that his reputation for honesty and veracity was very poor. And Judge
Robert Hurley, who had worked previously in the district attorney’s office with
Quatman, testified that Quatman “wanted to win more than he should” and “was
willing to bend or break rules to win more than any prosecutor should.”
The report from attorneys in Montana, where Quatman had moved in 1998,
was scarcely better. Dean Chisholm, who had participated in a dozen cases with
Quatman, testified that he was untrustworthy and that he had a reputation for
untrustworthiness. Sean Frampton, who had opposed Quatman in 10 to 20 cases,
likewise testified that Quatman was untrustworthy and had a reputation for
untrustworthiness. Two lawyers, however, had a contrary view. David Stufft
testified that Quatman had a good reputation for honesty and truthfulness in the
Montana community—although Stufft himself did seek sanctions against Quatman
in a criminal case and ask that he be held in contempt. Judge Bradley Johnson, the
City Judge of Whitefish, Montana, testified that Quatman, who appears fairly
frequently in his courtroom, is honest and truthful and has a good reputation for
those traits.
Although there was a conflict in the evidence as to Quatman’s character for
honesty and integrity among the Montana witnesses, there was no such conflict
among the Alameda County witnesses who had known Quatman for 20 years or
12

more. The referee also had the benefit of observing Quatman and these witnesses
testify. Despite Freeman’s protestations, we agree with the referee that these
witnesses offered adequate foundation for their opinions of Quatman’s honesty
and his reputation for honesty. (See People v. McAlpin (1991) 53 Cal.3d 1289,
1312 [reputation testimony is admissible even though based on hearsay]; People v.
Eli (1967) 66 Cal.2d 63, 78.) There was thus more than substantial evidence to
support the referee’s finding that Quatman’s character and reputation for honesty
and integrity was poor. We accept the referee’s finding.5

5
Freeman objects that the referee’s finding that “the character of John
Quatman is such that he can’t be believed” relied in part on testimony concerning
specific instances of Quatman’s dishonesty and that such reliance violated
Evidence Code section 787, which deems inadmissible evidence of specific
instances of a witness’s conduct (other than a felony conviction) to attack or
support the credibility of a witness, and Evidence Code section 1101, subdivision
(a), which deems inadmissible evidence of a person’s character in the form of
opinion, reputation, or specific instances of conduct when offered to prove his or
her conduct on a specified occasion. Neither objection is well taken. As we have
previously explained, the enactment of article I, section 28, subdivision (d) of the
California Constitution “supersedes all California restrictions on the admission of
relevant evidence except those preserved or permitted by the express words of
section 28(d) itself.” (People v. Wheeler (1992) 4 Cal.4th 284, 291.) Among
those provisions superseded is Evidence Code section 787. (People v. Wheeler,
supra, 4 Cal.4th at pp. 291-292.) The referee did not err under Evidence Code
section 1101, either, inasmuch as subdivision (c) of that provision states explicitly
that “[n]othing in this section affects the admissibility of evidence offered to
support or attack the credibility of a witness.”

Accordingly, the referee did not err in considering testimony that Quatman
explained to Deputy District Attorney Dunger how he made sure an eyewitness
would identify a defendant in court by keeping a picture of the defendant on his
desk where the witness would be sure to see it; that Quatman advised Dunger to
instruct witnesses who testify under a plea bargain “exactly” what to say, implying
that “you bought him, you made a deal, you own him”; and that Quatman told
Judge Hurley, who was then in the district attorney’s office, he would have
“round-filed” recently discovered exculpatory evidence rather than turn it over to
the defense. Deputy District Attorney Carmine’s testimony that Quatman

(footnote continued on next page)
13



Fourth, Quatman had a motive to undermine a capital conviction secured by
the Alameda County District Attorney’s Office because of his animosity toward
the office in general and District Attorney Tom Orloff in particular. As Quatman
conceded, it was common knowledge that he and Orloff had an unfriendly
relationship dating from “way back” when they were young deputies.
In 1993, when Quatman was a trial team supervisor, a female subordinate
accused him of making disparaging remarks to her. After Orloff investigated the
accusation, Quatman was disciplined by Orloff and Jack Meehan, who was then
the district attorney, and transferred to the consumer and environmental protection
unit, where he finished his career in the office. He never again tried a capital case,
which was his favorite category of cases, or even a felony-murder case and was
never again a team leader. Quatman admitted he was upset over these events and
that he shared his feelings with others. Quatman told Julie Dunger, Laurinda
Ochoa, and Robert Chambers, who also worked in the consumer and
environmental protection unit, that the transfer was a demotion and that it was
unjust. Chambers testified that Quatman held Orloff responsible for his
predicament. Dunger and Ochoa testified that Quatman’s anger at the office and
at Orloff was a “constant theme.” Dunger added that Quatman was “very bitter”
and “extremely adamant” about his feelings. Paul Sequiera, an assistant district

(footnote continued from previous page)

demonstrated how to persuade reluctant witnesses to cooperate by showing them
how easy it would be to “frame” them for possession of drugs, however, was
introduced solely to provide a foundation for Carmine’s opinion that Quatman was
dishonest and unethical. The referee thus erred in considering this incident for its
truth, but the error did not affect the referee’s determination that Quatman was
unworthy of belief nor our acceptance of that finding based on an independent
review of the record.
14



attorney in Contra Costa County who socialized with Quatman in the 1990’s,
needed to do no more than ask Quatman “how’s it going?” to hear that Quatman
“always felt like he was being screwed by the office” and was “venomous” toward
Orloff in particular. It was very clear to Sequiera that Quatman hated Orloff and
blamed him for some of his problems in the office.
In the mid-1990’s, when Quatman was running for a judgeship, he
discovered the news media were attempting to obtain his personnel file. Quatman
asked Orloff to “purge” or “shred” the document relating to the discipline he had
suffered in 1993, but Orloff refused, pointing out that “it wasn’t the right thing to
do” and that a coverup would be worse than the underlying disciplinary problem.
Quatman “vehemently” disagreed with Orloff’s refusal to purge or shred the
document. Ultimately, the office resisted disclosure of the file. Quatman
suspected that the administration had nonetheless leaked the materials to the press
and shared his anger with his fellow deputies. Orloff did not endorse Quatman in
his unsuccessful race for a judgeship.
Unfortunately, Quatman’s bitterness did not mellow over the years. Daniel
Wilson, who practiced in a partnership with Quatman and his wife in Montana for
a year, had heard Quatman claim that he had been exiled to the consumer fraud
unit by an “enemy” in retaliation for prior dealings. Quatman also claimed,
falsely, that he had returned to the capital prosecution team after the transfer
“because, in his absence, the death penalty prosecution team in the office couldn’t
win a death penalty conviction and it was necessary to bring him back.” Then, at a
retirement party for a colleague at the Alameda County District Attorney’s Office
in May 2003—the same month that Quatman executed a declaration recounting
the alleged ex parte conversation—Quatman continued to express anger at the
office and talked to various people “saying such horrible things about the office
15

and he seemed happy about it. He seemed excited about it. . . . He was—he was
lit up.”
The foregoing evidence refuted Quatman’s assertion at the reference
hearing that he did not carry any bitterness toward the office or Orloff. Nor does
the evidence that Quatman maintained close relationships with individual people
in the office affect the self-evident conclusion that Quatman harbored animosity
toward the office as an institution or to Orloff in particular—a conclusion that
would remain unaffected even if the referee had admitted evidence that Quatman,
for his 25 years to service to the office, received a plaque of appreciation from the
consumer fraud unit at his retirement luncheon. It is true that the initial target of
Quatman’s accusation would appear to be Judge Golde, but, inasmuch as Judge
Golde was already dead at the time Quatman first disclosed this ex parte
conversation, it is the Alameda County District Attorney’s Office that has suffered
the fallout from Quatman’s claims. In sum, we agree with the referee that
Quatman had a motive to tell a story that predictably caused trouble and
embarrassment for the office, even if his decision to do so was opportunistic and
not especially well planned out and even if Quatman arguably could have chosen
to embarrass the office in other, more direct ways.6
Fifth, we disagree with Freeman’s claim that Quatman’s juror notes
corroborate his account of the ex parte conversation with Judge Golde. Neither
the notes taken during voir dire nor the rolodex cards prepared for the big spin

6
We also disagree with Freeman that the referee erred in excluding or
ignoring evidence that other lawyers in the office may have sympathized with
Quatman’s frustrations or shared his criticisms of the office or of Orloff. The
issue here is not whether other attorneys might have had a grudge against the
district attorney’s office but whether Quatman did. We also reject Freeman’s
baroque claim that the referee’s failure to ascertain the justice of Quatman’s
criticisms of the office somehow violated the First Amendment.
16



indicate that Jurors Mishell, Peisker, and LaPut were Jewish or that Quatman
believed they were. Although Quatman sought to justify this omission at the
reference hearing by claiming he did not write down prospective jurors’ religion
unless they had mentioned it themselves, that explanation is difficult to credit,
given Quatman’s “habit and custom to note every bit of information [he] could to
make a more reasonable determination on whether they were [pro-]death or not.”
Indeed, Quatman’s voir dire notes and rolodex cards routinely included remarks
concerning the jurors’ physical appearance, clothing, and even derogatory
references to their race or suspected sexual orientation—even though these
remarks, like a juror’s religion, would have been based on Quatman’s observations
and were never mentioned by the jurors themselves. It is also difficult to credit
Freeman’s assertion that “[b]ecause Judge Golde did not advise Mr. Quatman to
exclude Jewish prospective jurors until after the Hovey voir dire, Mr. Quatman did
not have any reason to determine, or make notes, whether potential jurors were
Jewish during the Hovey voir dire.” As Quatman explained in his declaration and
in his conversation with Horowitz, he did not need advice from Judge Golde about
excusing Jewish prospective jurors; this was something he said he already knew to
do.
Quatman’s claim that he downgraded Prospective Jurors Peisker and LaPut
because of his ex parte conversation with Judge Golde about excluding Jews from
the jury is further undermined by Freeman’s failure to demonstrate that no other
prospective juror’s rating was downgraded. In fact, although the record does not
include Quatman’s notes for most of the prospective jurors, even this limited
record reveals that Quatman downgraded Prospective Juror Dupree between his
voir dire notes and the preparation of his rolodex card for that juror. Inasmuch as
Quatman never claimed that he believed Juror Dupree was Jewish, the record
suggests that Quatman revisited his ratings of the venire once voir dire had been
17

completed and he could evaluate each juror against the closed universe of possible
jurors—not because of newfound suspicion as to their religion.
For all of these reasons, we find that Freeman has failed to discharge his
burden to prove that Judge Golde advised Quatman to exclude Jewish prospective
jurors on April 28, 1987, as alleged in the third petition for writ of habeas corpus.
B. Whether Quatman Excused Jewish Prospective Jurors Based on
Their Religion
The petition can also be read to allege that even if the ex parte conversation
did not occur, Quatman nonetheless excused prospective jurors because of their
religion. We have previously stated that religious membership constitutes an
identifiable group under Wheeler. (See, e.g., People v. Gutierrez (2002) 28
Cal.4th 1083, 1122.) The United States Supreme Court has not similarly extended
Batson, although a number of state and federal courts have done so. (See Miller-
El v. Dretke (2005) 545 U.S. ___, ___ [125 S.Ct. 2317, 2342] (conc. opn. of
Breyer, J.).) Assuming without deciding that Batson, like Wheeler, applies to
peremptory challenges based upon bias against religious groups, we nevertheless
adopt the referee’s finding that Quatman did not exercise peremptory challenges
against Prospective Jurors Mishell, Peisker, or LaPut because of their religion.
First, the record does not support Quatman’s claim that he acted with a
discriminatory motive.
As to Juror Mishell, Quatman testified that he rated her a zero at the “get-
go” because, even before he allegedly considered her religion, he “didn’t believe
she was a good candidate to return death” and did not want her on the panel for
any reason. As Quatman put it, “I wouldn’t have kept Mrs. Mishell whether she
was Jewish or not for any reason.”
As to Jurors Peisker and LaPut, the fact that Quatman reduced their rating
sometime between their voir dire and the big spin is inconsistent with Freeman’s
18

claim that Quatman acted in accordance with a “standard” or “institutional”
practice of excluding Jews from capital juries. Had Quatman been acting under
such a standard or institutional policy, he would have assigned Jurors Peisker and
LaPut zero ratings at the outset.
Moreover, had Quatman been acting according to a standard or institutional
policy of excluding Jews, then he surely would have noted these jurors’ religion in
his voir dire notes or the rolodex cards he prepared for the big spin. After all, he
had noted the race, the appearance, the clothes, and the possible sexual orientation
of other jurors. His failure to note the religion (or his suspicions of their religion)
in his voir dire notes or on his rolodex cards of Jurors Peisker, LaPut, or Mishell
further undermines Freeman’s claim that Quatman exercised his peremptory
challenges on an impermissible basis. Indeed, the fact that Quatman did write
other identifying information on his rolodex cards for these three jurors—for
Peisker, that he was a member of the American Civil Liberties Union; for LaPut,
that he was unemployed and never recovered from his father’s death; and for
Mishell, that she was “NO DP,” meaning that she would not impose the death
penalty—renders Quatman’s assertion that he excused any of these jurors for a
different and unremarked reason (i.e., their religion) unworthy of belief.
Second, the claim that Quatman exercised his peremptory challenges on an
impermissible basis rests entirely on his credibility—which, as demonstrated
above, was impeached at the evidentiary hearing. Not only did Freeman fail to
establish that any of these prospective jurors was actually Jewish, he offered
nothing other than Quatman’s vague assertion that he believed these three
prospective jurors were Jewish. In particular, Quatman offered no explanation as
to why he would have believed Juror Peisker was Jewish (based on his name) yet
would not have believed that the same was true of Juror Mosher—who did serve
as an alternate on the jury. Nor did Quatman explain why he would have
19

concluded that Juror LaPut was Jewish, inasmuch as LaPut had testified in voir
dire that he knew a deputy sheriff from working at the St. Vincent de Paul Society
“in the church” and Quatman had written down and underlined “St. Vincent de
Paul Society” and added “St. Bede’s” in his voir dire notes for this juror. Thus,
Quatman’s contention that he excused Juror LaPut because he believed the juror
was Jewish is not only itself incredible, but also casts doubt on the remainder of
his testimony. Without good reason to believe Quatman’s testimony, of course,
Freeman’s claim of error collapses.
Third, as demonstrated in the preceding section, Quatman had a motive to
claim that he excused Jewish jurors from capital juries, and that he did so in
accordance with “standard practice,” in order to embarrass the Alameda County
District Attorney’s Office. Quatman’s assertion that he selected a jury using
unlawful criteria based on the policy of that office has garnered considerable
attention in this state and nationwide. (See fn. 8, post.) The problem for Freeman,
though, is that the record does not support the claim of bias in jury selection. In
fact, the record refutes it.
According to the record, Quatman had determined that all three jurors were
undesirable and had rated them unfavorably before he even allegedly considered
their religion. Under Quatman’s rating system, jurors rated below a six—which
included Jurors Mishell, Peisker, and LaPut—were undesirable jurors, jurors
Quatman intended to excuse if he had enough peremptory challenges remaining.
In this case, Quatman had more than enough peremptory challenges remaining,
since he used only 11 of his 36 challenges. Under these circumstances, we agree
with the referee that Quatman never believed that any of these prospective jurors
were Jewish, and, even if he did, that their religion was no part of his decision to
excuse them.

20



C. The Fairness and Adequacy of the Reference Hearing
The foregoing review of the record disposes of many of Freeman’s
exceptions and objections to the referee’s findings and conduct of the hearing. A
few of Freeman’s objections, however, merit more extended discussion. He
alleges that these errors deprived him of a full and fair opportunity to prove the
allegations in the petition. After carefully reviewing the record, the proffered
evidence, and the referee’s rulings, we disagree.
“Foremost” among the errors, according to Freeman, was the referee’s
exclusion of evidence proffered to demonstrate that the District Attorney’s Office
had a standard practice of excluding Jewish prospective jurors in capital cases.
But, as the record reveals, the referee admitted evidence of office policy to the
extent it was relevant to the questions this court had posed. Although the referee
cautioned that “the purpose of this hearing, as defined by the Supreme Court, is
not to conduct an examination of the practices of the Alameda County District
Attorney’s Office with respect to capital cases,” the referee declared that “should
the defense have evidence as it relates to the Freeman case, that Mr. Quatman’s
actions [were] in response to directions from supervisors from the Alameda
County District Attorney’s Office or should there be evidence . . . to establish that
Mr. Quatman was told in all capital cases that he should exclude members of the
Jewish community again by members of the Alameda County District Attorney’s
Office, that will be allowed.” Thus, the referee allowed in evidence that Quatman
said it was standard practice to exclude Jewish jurors in capital cases; that
Quatman, as an experienced prosecutor, claimed he knew to exclude Jews from
the jury and did not need instruction from Judge Golde; and that Quatman was a
speaker at a California District Attorneys Association seminar in the early 1990’s
and advised the audience to exclude Jews from capital juries. Freeman was also
permitted to explore whether former Assistant District Attorney James Anderson,
21

who had been head of the capital trial team, had provided formal or informal
training to deputies generally or to Quatman in particular concerning jury selection
in capital cases. The referee did sustain relevance objections to questions
designed to elicit Anderson’s belief as to whether “it was common sense to
exclude certain racial and religious groups based on . . . the belief that their
politics would be adverse to the prosecution,” but Anderson’s uncommunicated
beliefs were not relevant to either of the questions this court had posed to the
referee.7
Freeman complains next that the referee improperly excluded evidence of
Judge Golde’s alleged pattern of engaging in ex parte communications with
counsel. We disagree. Freeman presented Professor Thaman’s accusations that
then-Deputy District Attorney Carol Corrigan engaged in an ex parte
communication with Judge Golde in the Day prosecution concerning the dismissal
of two prospective jurors for cause and that Thaman observed her in chambers
with Judge Golde almost every morning before court was in session. Respondent
in turn presented Justice Corrigan’s testimony that no ex parte communication
concerning jurors occurred; that the only ex parte contact she had with Judge
Golde in the Day case was to advise him the People were taking a writ to review

7
Freeman also accuses the referee of precluding testimony from former
Deputy District Attorney Alex Selvin, who reportedly would have testified that it
was standard practice to exclude Jews from capital juries, that he expected this
would have been discussed among attorneys in the capital unit, but that there was
no formal policy in the office about this practice. Freeman, however, never called
Selvin to testify. Moreover, because this testimony would have been cumulative
of evidence already presented at the hearing, the referee would not have abused his
discretion in excluding it. And, as we explained above, had Quatman been acting
according to a standard or institutional policy of excluding Jews, then he surely
would have noted the jurors’ religion in his voir dire notes or the rolodex cards he
prepared for the big spin.
22



his ruling empanelling separate guilt phase and penalty phase juries; that she
waited in the courtroom, not in chambers, for court to begin; and that she had been
alone with Judge Golde in chambers on only two occasions, both of which
involved social matters. After hearing the evidence, the referee rejected Professor
Thaman’s accusations and credited Justice Corrigan’s testimony that no improper
ex parte communications occurred in the Day case. The referee thus did not
exclude the evidence; he merely disbelieved the evidence Freeman presented—a
finding that we accept. There was nothing unfair in the referee’s refusal, prior to
making his finding, to judicially notice portions of the briefs filed in the Day
automatic appeal that discussed the allegation of ex parte contacts. Those excerpts
were hearsay.
Freeman also errs in alleging the referee precluded him from establishing
that Judge Golde engaged in ex parte communications with attorneys concerning
the exclusion of cognizable classes of jurors in other cases. At the outset of the
reference hearing, the referee announced that “to the extent that the defense has
evidence that would establish that Judge Golde engaged in ex parte
communications with attorneys about jury selection, and that would include of
course the use of peremptory challenges on other occasions, I would allow that.
To the extent the defense has evidence that Judge Golde engaged in ex parte
communications with prosecuting attorneys regarding capital cases, I will allow
that.” In accordance with that ruling, the referee allowed counsel to ask Anderson
“whether he was privy to any sort of ex parte communication with Judge Golde
where he advised attorneys ex parte about jury selection or advised prosecuting
attorneys ex parte how to handle capital cases.”
23

However, the referee did not permit counsel to inquire, apparently on the
basis of a New York Times article,8 whether Judge Golde had at any time advised
him “in certain types of cases to be careful of African-Americans on the jury.”
Because the question went beyond the scope permitted by the referee, the record
does not support Freeman’s claim that the referee “abruptly changed course when
Mr. Anderson took the stand.” Nor was that question designed to prove that Judge
Golde had a habit or custom of offering ex parte advice about jury selection.
Even if the referee had erred in limiting counsel’s cross-examination of
Anderson about the New York Times article, it would not affect our finding that
Freeman failed to prove that Judge Golde colluded with Quatman in this case to
secure a conviction and death judgment. At most, it would have lent support to
Horowitz’s testimony of what Quatman told him about the meeting with Judge
Golde—i.e., that Quatman was “just kind of ‘kicking it’ with the judge and just
talking about cases in general terms.” In other words, the New York Times
article, combined with other evidence in the record, would have supported the
portrait of Judge Golde as someone who dispensed advice freely to prosecutors
and defense attorneys alike. Quatman, a career prosecutor, testified that he sought

8
The article in question reported Anderson as saying, “ ‘When I was a young
D.A., [Judge Golde] would tell me, “If you have a cop case, be careful of blacks
on the jury, because they don’t like cops” ’. . . . ‘I heard him tell defense lawyers:
“Be careful of Asians. They are very law-and-order oriented.” ’ ” (Murphy, Case
Stirs Fight on Jews, Juries and Executions
, N.Y. Times (Mar. 16, 2005) p. A1.)
The article also reported that, according to Anderson, Judge Golde gave this
advice “to prosecutors and defense lawyers about picking juries, but never during
a trial and never about a particular juror.” (Ibid.)

The record does not indicate whether these conversations predated Wheeler
or Batson. We note, however, that Judge Golde was appointed to the bench in
1973 and that, at the time of the reference hearing, Anderson had retired after 35
years in the district attorney’s office.
24



Judge Golde’s advice “on many different items, both professional and personal.”
Horowitz, a defense attorney, testified that “Judge Golde was my advisor. He was
probably that to many people, not just me.” And, according to Anderson’s
statement in the New York Times article, Judge Golde gave general advice about
picking juries to both prosecutors and defense attorneys, “but never during a trial
and never about a particular juror.”
If Judge Golde did at some earlier point advise prosecutors and defense
counsel, as recounted in the New York Times article, to “be careful of”
prospective jurors from certain racial groups because of attitudes believed to be
prevalent in the group (see fn. 8, ante), that advice was improper. (See Cal. Stds.
Jud. Admin., § 1, subd. (a)(2) [court’s duty to prohibit conduct exhibiting group
bias in judicial proceedings].) But the question before us is not whether Judge
Golde may have ever given improper advice to attorneys about jury selection, but
whether Judge Golde colluded with the prosecutor in this case to secure a
judgment favorable to the prosecution. For the reasons stated, we have found that
he did not. Conversations that Judge Golde had with other attorneys, assuming
they occurred, would not have supported Freeman’s allegation that Judge Golde
was biased against him or that he treated Quatman preferentially.9

9
The same is true of evidence in the record that Judge Golde conducted a
very informal chambers. Quatman testified that Judge Golde’s chambers “were
like a bazaar, only there were people in there, some drinking coffee, some reading
the papers, some doing business talking about cases. . . . It was kind of the
meeting place of superior court.” Horowitz testified that in “the old days,” it was
common “for judges to have their doors opened, and counsel, individually[,] in
groups, or coming and going, can sit there and talk to the judges as just normal
people.” Freeman also proffered a declaration from former Deputy Public
Defender Lawrence Boxer, which stated that Judge Golde’s chambers were like a
“souk in Algiers,” with “bargaining out loud among counsel and the Judge, deals
being made, name-calling, agreements reached, sentences agreed to; a rich, if, to

(footnote continued on next page)
25



Next, Freeman complains that the referee excluded evidence of other ultra
vires conduct by Judge Golde, ranging from evidence that Judge Golde once had
an ex parte conversation with a juror in a capital case to judicial notice of
instances in which the Court of Appeal had admonished Judge Golde concerning
improper jury instructions. We agree with the referee that evidence of misconduct
or of substandard conduct by Judge Golde in other circumstances was of little
relevance to the truth of the allegations in Freeman’s petition and therefore find no
abuse of discretion in the referee’s rulings.
Finally, Freeman complains that the Attorney General, who represented
respondent in this proceeding, acted under a conflict of interest and sought to
suppress evidence favorable to Freeman and to intimidate one of Freeman’s
witnesses. As to the alleged conflict of interest, we note that counsel moved prior
to the reference hearing to recuse the Alameda County District Attorney’s Office
from representing respondent and that the referee granted the motion. The
Attorney General thereafter represented respondent, with investigative assistance
from the district attorney’s office. Because Freeman did not object to this
arrangement at the reference hearing, he cannot be heard to challenge it now.
(People v. Catlin (2001) 26 Cal.4th 81, 162.) Moreover, there was no error in
allowing investigators from the district attorney’s office to continue their work
under the supervision of the Attorney General. (People v. Clark (1993) 5 Cal.4th
950, 999-1000.)

(footnote continued from previous page)

the uninitiated, somewhat shocking atmosphere.” Because of the potential for
confusion and mischief, we reiterate that trial courts in capital cases should
meticulously comply with Penal Code section 190.9 and place all proceedings on
the record. (See People v. Freeman, supra, 8 Cal.4th at p. 511.)
26



As to the claim that the Attorney General sought to suppress evidence
favorable to Freeman and to intimidate one of his witnesses, we find the record is
equivocal. Freeman’s counsel stated at the reference hearing that respondent flew
Attorney David Stufft down from Montana but, after interviewing Stufft, decided
not to use him. According to counsel, a member of “the prosecution team” then
approached Stufft when he appeared in court the day he testified for the defense
and informed him “they would not pay for his return flight to Montana.” The
Attorney General responded that he knew nothing about such a threat. Moreover,
as counsel conceded, respondent had already purchased Stufft a round-trip ticket
and, as the Attorney General pointed out, was obligated by statute to pay for the
return flight under the Uniform Act to Secure the Attendance of Witnesses from
without the State of California. (See Pen. Code, § 1334 et seq.) Assuming
nonetheless that Stufft was threatened with nonpayment of his return airfare if he
testified on Freeman’s behalf, we agree with Freeman that the referee erred in
excluding evidence of the threat as irrelevant. “Evidence that a witness . . . fears
retaliation for testifying is relevant to the credibility of that witness and is
therefore admissible.” (People v. Burgener (2003) 29 Cal.4th 833, 869.) This
minor fact, if it be one, does not affect our finding that Quatman’s character for
honesty and integrity was poor, however. Nor does it demonstrate that Freeman
was denied a full and fair hearing, inasmuch as Stufft did appear and testify on
Freeman’s behalf.
D. Freeman’s Motion to Take Additional Evidence
Three months after the referee filed his report, counsel filed a motion
asking us to take additional evidence in the form of depositions of Gary Sirbu, a
criminal defense attorney; Tom Orloff, the Alameda County District Attorney; and
Professor Philip Stark, who had prepared a study of peremptory challenges in
capital cases in Alameda County. As to Sirbu, counsel alleged that he had recently
27

learned from Lawrence Boxer that Sirbu walked in on Judge Golde having ex
parte conversations about the admissibility of postmortem photographs with the
prosecutor in a different murder case. Sirbu declined to execute a declaration
“because he said his conversation with Mr. Boxer was intended to be a private
matter” but “represented that if subpoenaed as a witness in an appropriate
proceeding, he would have no alternative but to testify truthfully to the foregoing
information.” As to Orloff, counsel alleged that he had recently discovered that
Orloff made a financial contribution to Quatman’s judicial campaign in 1996.
Finally, counsel alleged that Professor Stark had undertaken an analysis of all
capital cases tried in Alameda County between 1977 and 1987 and had determined
that there was a less than 0.16 percent chance that the prosecutorial strikes against
Jewish jurors had resulted from random factors other than their religion. Counsel
had made the same proffer at the reference hearing, but the referee had rejected it
as beyond the scope of the issues framed by this court.
Because the factfinding process has not yet concluded, we do not doubt that
we have discretion to take additional evidence. However, we have not yet
considered what standard we should apply to such a request. It would seem that
this situation is at least somewhat analogous to a trial court’s discretion to permit a
party to reopen its case to present additional evidence. In determining whether a
trial court has abused its discretion in denying a defense request to reopen its case
to present additional evidence, we have directed reviewing courts to consider “the
following factors: ‘(1) the stage the proceedings had reached when the motion
was made; (2) the defendant’s diligence (or lack thereof) in presenting the new
evidence; (3) the prospect that the jury would accord the new evidence undue
emphasis; and (4) the significance of the evidence.’ ” (People v. Jones (2003) 30
Cal.4th 1084, 1110, quoting People v. Funes (1994) 23 Cal.App.4th 1506, 1520.)
Although the third of these factors is essentially irrelevant when a referee, not a
28

jury, is involved, we deem the remaining factors useful as a guide in exercising
our discretion. Even if we were to assume that Freeman acted diligently in
uncovering this evidence, we find that he has failed to establish a convincing
showing under the first and fourth factors.
As stated, counsel submitted his request to take additional evidence three
months after the referee filed his report. By that point, both sides had prepared
and filed their briefs on the merits, totaling 95 pages, and Freeman had in addition
prepared and filed exceptions to the referee’s findings in a 56-page brief. Freeman
offers no special justification for suspending a matter that was mostly briefed, nor
does he claim that the evidence is of such importance as to justify requiring the
parties to rebrief the matter following the receipt of this new evidence.
Indeed, the evidence sought to be produced, even as alleged, is “far from
critical.” (People v. Funes, supra, 23 Cal.App.4th at p. 1521.) Assuming Sirbu
were to testify that Judge Golde had an ex parte conversation in a murder case
with a prosecutor concerning the admissibility of postmortem photographs, it
would not affect our conclusion that Judge Golde did not advise Quatman to
exclude Jewish prospective jurors prior to the big spin in this prosecution.
Evidence that Orloff contributed an unknown sum to Quatman’s judicial campaign
would not undermine our conclusion that Quatman harbored a long-standing
grudge against Orloff and the district attorney’s office, nor (inasmuch as Orloff
did not opine on Quatman’s character) would it alter our assessment of Quatman’s
character for honesty and integrity. And Professor Stark’s study, which purports
to demonstrate that the district attorney’s office had a practice of exercising
peremptory challenges against Jewish prospective jurors, would have little
relevance to Quatman’s conduct here, inasmuch as Freeman has failed to establish
that any of the jurors in question were Jewish or that Quatman excused them
because he believed they were. Even if the study were offered merely to show that
29

the office had a policy of excluding Jewish prospective jurors, it would not alter
our conclusion in the preceding section, based on the available documentary
evidence, that Quatman did not excuse any jurors in this case because of their
religion.10 We therefore deny Freeman’s motion to take additional evidence.
CONCLUSION
Freeman leveled very serious allegations about Judge Golde and the
conduct of his trial but, after a full and fair evidentiary hearing, he failed to prove
they were true. Because our order to show cause and subsequent reference hearing
were limited to the claims of judicial collusion with the prosecution to secure a
conviction and death judgment and the prosecution’s discriminatory exercise of
peremptory challenges, we do not discuss the other claims presented in the
petition. As is our usual practice, we will resolve the petition for writ of habeas
corpus by a separate order. (In re Thomas, supra, 37 Cal.4th at p. 1277.) The
order to show cause is discharged.

BAXTER, J.

10
For the same reasons, we find no error in the referee’s exclusion of the
study at the reference hearing.
30



WE CONCUR:

GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
MORENO, J.
BOLAND, J.*
HALLER, J.**

_____________________________

* Associate Justice of the Court of Appeal, Second Appellate District, Division
Eight, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
**Associate Justice of the Court of Appeal, Fourth Appellate District, Division
One, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

31



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Freeman on Habeas Corpus
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S122590
Date Filed: May 18, 2006
__________________________________________________________________________________

Court:


County:
Judge:


__________________________________________________________________________________

Attorneys for Appellant:

Michael Laurence, Gary D. Sowards, Shelley J. Sandusky, Shani Pines and Bethany L. O’Neill for
Petitioner Fred H. Freeman.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler
and David R. Gillette, Assistant Attorneys General, Bruce Ortega, Morris Lenk, Seth K. Schalit, Ronald S.
Matthias and Geoffrey S. Lauter, Deputy Attorneys General, for Respondent State of California.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Gary D. Sowards
Habeas Corpus Resource Center
50 Fremont Street, Suite 1800
San Francisco, CA 94105
(415) 348-3800

Geoffrey S. Lauter
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5724


Opinion Information
Date:Docket Number:
Thu, 05/18/2006S122590

Parties
1Freeman, Fred Harlan (Petitioner)
San Quentin State Prison
Represented by Habeas Corpus Resource Center
Laurence/Sowards/Sandusky/Pines
303 Second Street, Suite 400 South
San Francisco, CA

2Department Of Corrections (Non-Title Respondent)
Represented by Attorney General - San Francisco Office
Morris Lenk, Deputy Attorney General
455 Golden Gate Ave., Suite 11000
San Francisco, CA

3Department Of Corrections (Non-Title Respondent)
Represented by Geoffrey Stanton Lauter
Attorney General's Office
455 Golden Gate Ave., Suite 11000
San Francisco, CA


Disposition
May 18 2006Opinion: OSC discharged

Dockets
Feb 10 2004Exhibit(s) filed (AA)
  in support of petition for writ of habeas corpus. (1 volume)
Feb 10 2004Received:
  Copy of federal habeas corpus petition - No. C-95-3368-FMS-JSB/C-99-20614 JW.
Feb 10 2004Petition for writ of habeas corpus filed by H.C.R.C. (AA)
  (30 pp.)
Jun 3 2004Informal response requested
  (Rule 60); due 6/23/2004. Any reply due within 30 days of service and filing response. If counsel find it necessary to request additional time, the court will consider request for extensions of time in 30-day increments only.
Jun 23 2004Informal response filed (AA)
  by respondent. (7 pp.)
Jul 19 2004Reply to informal response filed (AA)
  by HCRC. (18 pp.)
Jul 28 2004Order to show cause issued
  Petitioner's request for judicial notice of the certified record on appeal and all pleadings on file in People v. Freeman, S004787, In re Freeman, S041560, and In re Freeman, S065191 (petn., p. 8) is granted. The Director of Corrections is ordered to show cause before this court, when the matter is placed on calendar, why petitioner is not entitled to relief because (1) the trial judge actively colluded with the prosecutor to secure a conviction and death sentence, and (2) the prosecutor improperly exercised peremptory challenges on the basis of religion at the advice of the trial judge. The return must be filed in this court on or before August 27, 2004. (Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.)
Aug 27 2004Written return filed
  by respondent. (9 pp. - excluding attached exhibits)
Sep 29 2004Request for extension of time filed
  to file traverse. (1st request)
Oct 5 2004Extension of time granted
  to October 8, 2004 to file petitioner's traverse.
Oct 8 2004Traverse to return filed
  by HCRC. (1 volume - 29 pp.)
Oct 8 2004Exhibit(s) filed (AA)
  in support of petitioner's traverse (1 volume - 226 pp.)
Nov 10 2004Reference hearing ordered
  THE COURT: In the matter of Fred Harlan Freeman on Habeas Corpus, S122590 (Superior Court of Alameda County, No. 79502), good cause appearing, the court orders the Presiding Judge of the Santa Clara County Superior Court to select a judge of that court to sit as a referee in this proceeding, and to promptly notify this court of the referee selected. After appointment by this court, the referee, after proper notice to the parties, is directed promptly to hold an evidentiary hearing and to make findings on the following questions: 1. Did Judge Stanley Golde commit the acts alleged in paragraph 10 of the declaration of John R. Quatman, attached as exhibit 74 to the petition? If so, exactly what did he do, and where, when, and under what circumstances did he do it? 2. Did John R. Quatman exercise any peremptory challenges at trial against any prospective juror who either was Jewish or whom he believed was Jewish? If so, whom did he challenge, and why did he challenge that person? Did John R. Quatman exercise any peremptory challenges on the basis of religion at the advice of Judge Golde? It is further ordered that the referee prepare and submit to this court a report of the proceedings conducted pursuant to this appointment, of the evidence adduced, and of the findings of fact made.
Nov 19 2004Referee appointed
  THE COURT: Based on the record in this matter and good cause appearing: In the matter of Fred Harlan Freeman on Habeas Corpus, S122590 (Superior Court of Alameda County, No. 79502), the Honorable Kevin Murphy of the Santa Clara County Superior Court is appointed to serve as referee. The referee, after proper notice to the parties, is directed promptly to hold an evidentiary hearing and to make findings on the following questions: 1. Did Judge Stanley Golde commit the acts alleged in paragraph 10 of the declaration of John R. Quatman, attached as exhibit 74 to the petition? If so, exactly what did he do, and where, when, and under what circumstances did he do it? 2. Did John R. Quatman exercise any peremptory challenges at trial against any prospective juror who either was Jewish or whom he believed was Jewish? If so, whom did he challenge, and why did he challenge that person? Did John R. Quatman exercise any peremptory challenges on the basis of religion at the advice of Judge Golde? It is further ordered that the referee prepare and submit to this court a report of the proceedings conducted pursuant to this appointment, of the evidence adduced, and of the findings of fact made. Any requests for discovery in this matter should be addressed to the referee.
Dec 14 2004Received:
  status report from referee, dated 12-13-2004.
Feb 28 2005Received:
  status report from referee.
Apr 5 2005Referee's report filed
  Referee's Report of Proceedings, Summary of Evidence and Findings of Fact.
Apr 5 2005Letter sent to:
  parties: exceptions to report of referee and simultaneous briefs on the merits due 5-5-2005. Responses, if any, should be served and filed 30 days thereafter.
Apr 27 2005Request for extension of time filed
  by petitioner to file exceptions to referee's report and brief on the merits. (1st request)
May 3 2005Extension of time granted
  to 7/5/2005 to file petitioner's exceptions to the report of the referee and brief on the merits. Upon the court's own motion, the time for filing respondent's exceptions to the referee's report and brief on the merits is also extended to and including 7/5/2005.
May 25 2005Filed:
  record from evidentiary hearing [includes 11 vols. of reporter's transcript (810 pp.); one file folder of court documents and minute orders; and exhibits]
Jul 5 2005Exceptions/briefing filed re referee's report
  Respondent's brief on the merits. (42 pp.)
Jul 5 2005Exceptions/briefing filed re referee's report
  Petitioner's brief on the merits. (53 pp.)
Jul 5 2005Exceptions/briefing filed re referee's report
  Petitioner's exceptions to referee's findings. (56 pp.)
Jul 5 2005Motion filed (AA)
  petitioner's motion for the court to take additional evidence. (8 pp. excluding attachment)
Jul 8 2005Filed:
  petitioner's supplemental proof of service.
Jul 18 2005Request for extension of time filed
  to file response to petitioner's motion for the court to take additional evidence. (1st request)
Jul 22 2005Extension of time granted
  to 8/4/2005 to file response to petitioner's motion for the court to take additional evidence.
Aug 4 2005Response brief re referee's report (awaiting more)
  respondent's response to petitioner's exceptions to referee's report, brief on the merits, and motion to take additional evidence. (1 volume - 50 pp.; 15332 words)
Aug 4 2005Filed:
  Amended declaration of service by mail of respondent's response to petitioner exceptions to referee's report.
Aug 4 2005Response brief re referee's report (fully briefed)
  petitioner's response to respondent's brief on merits. (1 volume - 30 pp.)
Aug 12 2005Filed:
  Petitioner's reply to respondent's response to petitioner's motion to take additional evidence.
Dec 1 2005Oral argument letter sent
  advising counsel that case could be scheduled for oral argument as early as the January 2006 calendar, to be held the week of January 9, 2006, in San Francisco.
Dec 21 2005Note:
  counsel notified by telephone that case will be scheduled for oral argument on the February 2006 calendar.
Jan 19 2006Case ordered on calendar
  February 15, 2006, 9:00 a.m., in Sacramento
Jan 23 2006Letter sent to:
  lead counsel, requesting written stipulation whether each party will or will not stipulate to Justice Chin's participation in the case even though he will not be present at oral argument. Stipulations due on or before February 1, 2006.
Jan 25 2006Filed letter from:
  Morris Lenk, deputy attorney general Purusant to the court's request, respondent has no objection and hereby agrees to Justice Chin's participation in this case in the manner outlined in the court's letter.
Jan 31 2006Filed:
  letter from HCRC, dated 1-31-2006, advising that petitioner declines to stipulate to Justice Chin's participation in the case in the matter described in the (court's) letter of 1-19-2006..
Feb 6 2006Argument rescheduled
  to be called and continued to March 2006
Feb 8 2006Case ordered on calendar
  March 8, 2006, at 9:00 a.m., in San Francisco Chin and Corrigan, JJ., not participating; Boland and Haller, JJ., assigned justices pro tempore.
Feb 14 2006Supplemental briefing ordered
  The parties are directed to file supplemental briefs addressing the following issues: 1. Has a violation of People v. Wheeler (1978) 22 Cal.3d 258 or Batson v. Kentucky (1986) 476 U.S. 79 been stated if the habeas corpus record fails to establish that the excused juror was in fact a member of the cognizable group asserted by the party challenging the exercise of the peremptory challenge? 2. Has a violation of People v. Wheeler, supra, or Batson v. Kentucky, supra, been stated if the party's exercise of a peremptory challenge was based on permissible and impermissible reasons? In other words, does a peremptory challenge based on mixed motives violate Wheeler or Batson? (See People v. Schmeck (2005) 37 Cal.4th 240, 275-276.) Simultaneous supplemental briefs addressing these issues shall be served and filed on or before February 21, 2006. Simultaneous response briefs may be served and filed within 7 days after the last brief in the first round is filed. All briefs shall be served and filed in the San Francisco Office of the Court Clerk.
Feb 21 2006Supplemental brief filed
  petitioner's supplemental brief. (7 pp.)
Feb 21 2006Supplemental brief filed
  respondent's supplemental brief. (9 pp.)
Feb 22 2006Filed:
  table of authorities to petitioner's supplemental brief.
Feb 28 2006Supplemental brief filed
  respondent's reply to petitioner's supplemental brief. (7 pp.)
Feb 28 2006Supplemental brief filed
  petitioner's response to respondent's supplemental brief. (9 pp.)
Mar 7 2006Received:
  letter from petitioner, dated 3-7-2006, requesting that the court "strike reference to inadmissible and offensive material from Respondent's Reply to Petitioner's Supplemental Brief."
Mar 8 2006Cause argued and submitted
 
May 18 2006Opinion filed: OSC discharged
  The petition for writ of habeas corpus will be resolved by a separate order. (In re Thomas, supra, 37 Cal.4th at p. 1277.) Opinion by Baxter, J. ----- joined by George, C.J., Kennard, Werdegar, Moreno, Boland (CA 2/8), assigned, and Haller (CA 4/1), assigned, JJ. (note: Chin and Corrigan, JJ., did not participate)
Jun 2 2006Rehearing petition filed
  by petitioner (18 pp.)
Jun 5 2006Time extended to consider modification or rehearing
  to August 12, 2006, or the date upon which rehearing is either granted or denied, whichever occurs first.
Jun 5 2006Filed:
  certificate of word count to petitioner's petition for rehearing. (petition contains 4683 words)
Jul 12 2006Letter sent to counsel: opinion now final
  No remittitur will issue.
Jul 12 2006Rehearing denied
  Chin and Corrigan, JJ., were recused and did not participate.
Jul 12 2006Order filed: remaining habeas corpus issues denied
  The petition for writ of habeas corpus, filed February 10, 2004, is denied, except as to claim 24 and paragraph 4 of claim 26, which were resolved via a separate opinion. (See In re Freeman (2006) 38 Cal.4th 630.) Chin and Corrigan, JJ., were recused and did not participate.
Mar 26 2007Received:
  letter from U.S.S.C., dated March 19, 2007, advising cert petition for writ of certiorari is denied.
Sep 11 2007Change of contact information filed for:
  HCRC.

Briefs
Aug 27 2004Written return filed
 
Oct 8 2004Traverse to return filed
 
Aug 4 2005Response brief re referee's report (fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website