The California Commission on Judicial Performance said the statement by Judge Harvey Giss was offensive and inappropriate.
“Judge Giss made a remark to the effect that he guessed that the only thing that would make the defendants plead was for the judge to come out in a white sheet and a pointy white hat, which the judge indicated he would not do,” the commission said.
The remark included a reference to the Ku Klux Klan and the fact that both defendants were African-American, the panel said.
“While conceding it was a ‘bad statement,’ the judge also remarked: ‘People don’t have a sense of humor anymore,'” the commission said.
The remark was made in July, after a criminal case was transferred to Giss involving a series of robberies. A prosecutor and defense attorney were in the courtroom discussing off the record the prospect of a plea agreement.
Giss said he felt they wanted him to intercede, but he could not because of restrictions on plea bargaining in such cases.
Attorney Edith Matthai, who represents Giss, said the judge made an unfortunate comment off the record and in jest.
“He regrets that the comment was made since while he intended to emphasize how impossible it was for him to do what counsel had requested, he should have chosen a different way to make his point,” Matthai said.
The defendants were not in the courtroom when the remark was made, but a family member of one suspect was present and heard it.
Two days later, the commission said, the defense sought to remove Giss from the case out of concern regarding impartiality.
The remark ultimately resulted in Giss recusing himself.
“Judge Giss should have known that his insensitive courtroom reference to a history of violence toward persons of the defendants’ ancestry, whether intended to make a valid point regarding his role as a judge or in jest, was offensive and inappropriate,” the commission said.