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Disciplinary Counsel v. O'Neill9/7/2004
was identified as a gang member ("The choke and kill bloods"). Pierce contacted DeVillers the day before trial and conveyed that Bivens would accept the plea offer of an F-5 and an M-1 but Pierce wanted to have a Presentence Investigation or "PSI" to determine if the sentence could be probation. Pierce sought and received DeVillers' consent to a PSI as well as to Pierce approaching Judge O'Neill ex parte to seek her approval to order a PSI. Pierce went to Judge O'Neill's courtroom on June 2, 1999. Pierce met with Judge O'Neill as she was leaving the bench, explained his request for a PSI for Bivens who was scheduled for the next morning and asked if Judge O'Neill would continue bond for Bivens during the PSI. Pierce testified that it was not a passing conversation; "she had my attention and I had hers." Judge O'Neill said 'that's fine'. (Transcript Vol. III - 48) Pierce called Bivens and told him about the judge's response and that the next day he should not expect sentencing; his plea would be entered and the PSI would be ordered.
62. . On June 3, 1999 Bivens was two hours late for the 9:00 am court hearing. DeVillers was in trial and sent Jeff Reichel to cover, understanding that this was just a plea and it had been arranged to order a PSI. Neither Pierce nor Devillers had Bivens' juvenile record, however, a juvenile record would not exclude ordering a PSI. Pierce was in and out of Judge O'Neill's courtroom that morning waiting on Bivens who arrived at 11:00 am. Pierce was in the courtroom, when he saw Bivens arrive and he walked back toward him. He heard behind him tumultuous noises, a book slamming down, and loud voices not understandable. (Transcript Vol. III -- 40-41) Sandy Grego, the court reporter testified at that time Judge O'Neill was throwing her keys and a book down on the bench, slamming drawers and screaming. (Transcript Vol. III -- 22-23) Bivens told Pierce he had transportation problems as Pierce realized that Judge O'Neill was demanding they approach the bench. Pierce described Judge O'Neill's demeanor as "very, very loud, very, very, very ugly and very intimidating." Pierce was demeaned. Pierce unexpectedly lost his composure at this disciplinary hearing describing this situation, stating, "This was not the only time that this kind of thing had happened." (Transcript Vol. III - 42). Grego testified that Judge O'Neill "wanted an explanation as to why he (Bivens) was two hours late, that she wanted to leave at 11:00 and she would be really late for whatever she had to do." Grego described Judge O'Neill as "clearly irate and definitely screaming." (Transcript Vol. III -- 22-23)
63. Pierce stood respectfully during the plea and when Judge O'Neill proceeded to sentencing he tried several times to request a PSI and to refer to his conversation with Judge O'Neill the day before. Judge O'Neill refused to order a PSI and ordered Pierce to speak in mitigation on sentencing. (Exhibit 167 p.10, 11,13) Pierce testified he was not prepared to address sentencing or speak in mitigation. Bivens was sentenced to 6 months with jail time credit. Pierce never before had a judge agree to order a PSI and then renege on the agreement without any notice to the lawyer or client. (Transcript Vol. III -- 47,55,65) Pierce went to visit Bivens the next day in the jail highly concerned that Bivens would file a grievance against him. Pierce offered to file a motion to withdraw the plea or appeal but Bivens declined. By the time such a motion or appeal would have been decided, Bivens would have served his sentence. (Transcript Vol. III -- 58-59)
64. Judge O'Neill testified that she had no recollection of any conversation with Pierce a day earlier about ordering a PSI for Bivens. In addition to a lac
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