Why Was Judge Jeffrey Ferguson Granted Bail?

I realize that the headline sounds provocative, along the lines of “how can this sort of travesty happen?” That is not my intent. I don’t know this to be a travesty. But I am literally remembering back to the debates we had about ending cash bail, flummoxed by the notion than someone suspected of murder can so quickly get released on even $1 million bail.

I make no prejudgment of Judge Ferguson himself. We know from the Orange Lady story below is that his son was in the house and called 9-1-1. While that does not logically eliminate the son as a suspect, the fact that the son was not arrested makes it very unlikely. The fact that there was an arrest at all suggests that suicide is not suspected; it also suggests that no intruder is thought responsible. Other possibilities include justifiable self-defense by the 72-year-old judge against his 65-year-old wife, which seems unlikely; accidental shooting by him (negligent homicide, which is still a serious crime); accidental shooting by herself (in which event I suppose he might be arrested as an accessory, or as someone who was supposed to secure his firearms and didn’t); manslaughter, premeditated murder without excuse; or premeditated murder with arguable excuse, such as a “mercy killing” — made less likely by the total lack of discussion, among the people interviewed in the story, of the judge’s wife having been seriously ill.

More than half of these possibilities involve very serious crimes about which a suspect’s explanation — even if the suspect is a well-respected judge — should not necessarily be credited; in most cases, I think it’s fair to say that they are not. Beyond that: Is it obvious that the subject is not a flight risk? Is it obvious that he was not a threat to kill again (if he was reasonably believed to have killed his wife)?

Those were the thoughts I had had when I just read the headline of the story. Was this likely to become a stark and blazing example of the unfairness of our current bail system?

After about a minute of ping-ponging through my head like this, I went back to read the story.

The scene in front of the family residence.

(1) How did the officers know that he was not “lying in wait” for his wife inside their home? (I’m not asserting that anything of the sort happened; I just want to know how they knew this.)


In summary: Judge Ferguson was arrested at around 8 p.m. on the night of August 3, by a swarm of heavily armed police outside his house in the 8500 block of East Canyon Vista Drive, on suspicion of murdering his wife Sheryl Ferguson, who was found dead at the scene. He spent the night in jail. At about 4:00 Friday afternoon he was released on $1 million bail.

And then I came across the answer to my question:

Since Ferguson had not been formally charged as of Friday afternoon, prosecutors did not have a chance prior to his release to ask a judge to order Ferguson held without bail, or perhaps to increase the amount of his bail. The felony bail schedule in OC Superior Court automatically sets $1 million for most murder cases. The exception is murder cases with special circumstances, such as lying in wait, which default to no bail.

But that led to another question or two:

I simply do not understand how OC’s legal system could have concluded so rapidly that Judge Ferguson, who could clearly afford such bail (as his wife was in no position to complain if he had had to put up their his house as collateral), would be allowed to walk — to walk, perchance to flee? — out of jail before even being arraigned.

I want to remind people of what was supposed to happen on the “elimination of cash bail” initiative we had last cycle. Bail decisions were supposed to go to a judge who would, advised by a formula designed not to be biased by racial or wealth factors, to make a decision based on two factors, which include both the judge’s professional opinion and the base rates presented by the formula:

  1. whether the accused person was likely to flee if released
  2. whether the accused person was likely to attack witnesses or others if released
  • If the answer to either question was “yes,” then no bail to allow the person to leave would be set
  • If the answers to both questions was “no,” then the person would be released without any cash bond

That’s it.

In the debate over the initiative, we largely how cash bail would be more fair to the poor. But there was a less-articulated, complementary consideration in its favor: it would be less lenient on the wealthy and well-connected who could buy their way out of pre-trial incarceration without too much inconvenience. (I suspect that one such consideration may be that some people wanted to spare Judge Ferguson the indignity — well known to younger, non-white, and less-wealthy people — of having to spend three nights in jail because the next arraignment would not occur until Monday morning.

If that thoughtful bit of kindness was a consideration at all, it’s awful.

Judge Ferguson figured in a startling example of judicial clubbiness that made this blog a few years ago.

Judge Ferguson was admonished by a judicial ethics commission for a post to a North OC Courthouse Facebook page attacking judicial candidate Karen Schatzle, who in 2016 was running against disgraced judge Scott Steiner, who as readers may remember was censured by the commission in 2014 for allegedly having sex in his chambers with two of his former law students from Chapman University Law School.

Schatzle, during that campaign, had posted on the North Orange County Bar Association Facebook page that “Scott Steiner uses his office for sex and yet so many aren’t concerned, crazy politics!”

Judge Ferguson retorted in defense of Steiner that Schatzle “has sex with defense lawyer whike [sic] shw [sic] [presumably “while she”] is a DA on his cases and nobody cares. Interesting politics.”

Schatzle replied: “I’m sure The Judicial Commission of Performance would love to know about your blogging!!” Ferguson took the comment down shortly thereafter — but obviously not quickly enough to avoid a screenshot. He was in fact sanctioned for making allegations about a court officer for which he had no proof. (Because … he didn’t. And if anyone had had proof, I reckon they’d have given it to him.)

Moral: As has been noted here many times in relation to judicial races, judges do not take kindly to those challenging incumbents — even a sitting Assistant District Attorney.)

The above vignette speaks, far less dramatically, to a surfeit of “clubbiness” among law enforcement– coupled with a frankly shocking lack of concern about the life of Sheryl Ferguson. (Can one imagine her being allowed by the legal system to stroll out of confinement in less than a day, in time for the full weekend, if she had been the one to shoot her husband?)

I freely admit that there may be attenuating circumstances about Judge Ferguson’s case that I don’t know about — because, other than social class and connections, they didn’t make it into the Register’s story. But I am sure that the more that this story gets attention in the broader public that doesn’t read newspapers (or even the very finest local advertising-boosted blogs), the more poor people among us will reinforce their conclusion that the system is as rigged as its harshest critics maintain.

Personally, I don’t recall if I have ever appeared before Judge Ferguson. (I have a vague memory that I did, but that memory is connected to someone who doesn’t look anything like the person whose photos are in the Register. Then again, he wouldn’t, would he?) So I don’t know what to predict what will come any more than I do how to explain what happened. But I will tell you this.

Part of me hopes that Judge Ferguson does flee to a country without a U.S. extradition treaty, so as to underscore how unsupportable this indulgence of a man accused of murdering his wife has been.

And a less nihilistic part of me hopes that everyone with the power to investigate what happened here, and how, with the same fervor as would be applied if Judge Ferguson did flee the country like that.

That is a reasonable hope — whether or not it is reasonable to expect.

And to the young people of color, and to those many without much money, I hope that heretofore unknown circumstances will prove that nothing unfair happened here. Again, this is a hope — and definitely not an expectation.

I haven’t yet mentioned one detail of the Register’s story about that night. When Judge Ferguson came out of his front door, proclaiming at he was unarmed, he was told by the APD officers to get down on his knees. He told them again that he was unarmed — and that he would not get down onto his knees.

No officer shot this suspected murderer. No officer cracked open his skull with a blunt object. No one tazed him; no one pepper sprayed him; no one shot sandbags or pepper balls or whatever else at this elderly wealthy Caucasian well-respected man.

So … the police do know how to do this when they want to. Let’s see them treat more suspects like they did here.

One final thought, for the many good people of the Orange County Superior Court bench.

If Sheryl Ferguson had shot Jeffrey Ferguson, I believe that you would have had an avalanche of hand-wringing over, and testimonials to, and celebrations of the departed jurist.

What I would ask, and I don’t know the decedent any more than I knew the accused, is this:

Treat and honor Sheryl as you would have treated Jeffrey.

Treat Jeffrey as you would have treated Sheryl.

(Ask your partners at home if you need help with this. I’ll bet that they have opinions.)

Finally, lead in committing the profession to doing more to address the issues of degression and substance abuse and rage among lawyers. You know better than I do the emotional debilitation that affects too many in our profession. Being a good judge or a good attorney is very hard. Maybe the example of Judge Ferguson cracking like this, if that’s what happened, can be put to good use.

This iron is hot. This is a time to act.

About Greg Diamond

Somewhat verbose attorney, semi-disabled and semi-retired, residing in northwest Brea. Occasionally ran for office against jerks who otherwise would have gonr unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.) His daughter is a professional campaign treasurer. He doesn't usually know whom she and her firm represent. Whether they do so never influences his endorsements or coverage. (He does have his own strong opinions.) But when he does check campaign finance forms, he is often happily surprised to learn that good candidates he respects often DO hire her firm. (Maybe bad ones are scared off by his relationship with her, but they needn't be.)