The case was notable, not only for the acquittal, but for the misleading press release sent out by the DA’s Office that seemed to imply his guilt, both of the main charge as well as of charges that were not even filed against him.
Defense Attorney Kathryn Druliner has learned what many of us have known for some time, that Judge Mock has an inherent conflict of interest in that he is married to Ann Hurd, who recently retired as Chief Deputy District Attorney, but remains active still in the office and on a few cases.
Having learned of this after the trial, Ms. Druliner is seeking to disqualify Judge Mock based on section 170.1 of the Code of Civil Procedure.
According to a motion filed earlier this week, “Subdivision 170.1 (a) (4) provides for disqualification if ‘[t]he judge, or the spouse of a judge…is a party to the proceeding or an officer, director, or trustee of a party.’ In addition, subdivision 170.1 (a)(6) (A) (iii) provides for disqualification if ‘[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.””
She argues, “As the Chief Deputy District Attorney of the Yolo County District Attorney’s Office, Judge Mock’s wife may not technically qualify under subdivision (a)(4), as an officer, director, or trustee of a party. However, her position is analogous to those positions and in this instance the District Attorney’s Office is the alter ego of a party, the People of the State of California.”
However, she argues further that the grounds for disqualification “are even more compelling on the facts of the instant case.”
“There are few relationships between human beings that are more personal and close than that of husband and wife. A husband and wife typically conduct their affairs as a partnership and it is difficult to imagine that they would not share views, opinions and confidences regarding their professional activities and work situations,” she maintains.
This is certainly far from the first time this issue has arisen in Yolo County. Way back in November 2006, we had an article “Appearance of a Conflict of Interest” in which we discussed such conflict between then-presiding Judge Stephen Mock and his wife Ann Hurd, the Chief Deputy District Attorney.
This became an issue in the murder trial involving the killing of CHP Officer Andy Stevens in 2005.
At that time, the Sacramento Bee reported, “An out-of-county judge, specially appointed to hear the controversy, has already decided in favor of Mock. That judge ruled that, though it was a “close call,” Mock can remain impartial.”
At that time, defense attorneys argued that a judge can be disqualified “if the judge or spouse of the judge is a party to the proceeding… It is presumed that Judge Mock’s spouse would participate in making policy decisions of the prosecutor’s office handling this case, and some observers may reasonably entertain a doubt that the judge will be able remain impartial throughout the course that this case may take,” the motion stated.
Judge Mock contended that District Attorney David Henderson–his wife’s boss–had exclusively handled this case, and therefore she was not a decision-maker or direct party to the case. He wrote, “I can say with certainty that my wife has never handled this matter, and that she has not – indeed she cannot – supervise Mr. Henderson inasmuch as she is in a subordinate position to him.”
The bigger question in such matters has always been the appearance of a conflict of interest. This led defense attorneys in that case, Fred Dawson and Clyde M. Blackmon, to argue, “An appearance of impropriety is created by the close nature of the marriage relationship.”
“A husband and wife are also perceived to share confidences regarding their personal lives and employment situations,” the lawyers wrote.
It seems unlikely that courts will rule differently, in the sentencing portion of this case, than they ultimately ruled four years ago, despite the fact that the marriage between Judge Mock and Ann Hurd of the DA’s Office symbolizes the apparent close-knit relationship between the supposedly-impartial bench in Yolo County and the office of the prosecutors.
However, one factor in this case that was not present in previous cases may be Judge Mock’s own conduct.
As we reported, during the prosecution’s rebuttal closing statement, Ms. Druliner made a particular objection that was overruled. When she made the objection again, Judge Mock shouted that he had already ruled on that topic.
At this point Ms. Druliner said that she wanted to put the objection on the record. This is a common tactic that may be needed to assist in a possible appeal, should there be the need.
Judge Mock responded, shouting that she can put it on the record after the closing statement is done and the jury has been sent away to deliberate.
When Ms. Druliner put the matter on the record she said, “What I’m going to say is probably going to make the court yell at me again.” She said that during the course of the trial, the court has yelled at her “repeatedly, repeatedly.” She said that twice for emphasis.
Ms Druliner added, “Never in 20 years of practice have I been treated that way.”
“A toxic courtroom is of major concern to the appeals courts,” she said, pointing out that they take it seriously when judges target attorneys for harsh treatment. She said that although the transcript says “overruled” or “sustained,” the tone of the judge is not reflected there, and the reader does not know that these words were shouted out in the courtroom in full presence of the jury.
Ms Druliner said that yes, it is the prosecutor’s job to state objections. However, she said that on the topic of hearsay, in which her line of questioning was mostly blocked by the judge, she was not allowed to explain which of the 57 hearsay objection exceptions might apply to her question. Similarly, she found her objections to the prosecution’s line of questioning to be repeatedly overruled. She said that she wanted to note in particular that the judge denied her requests to approach the bench on the various topics. She added that it was the judge’s job to hear the reason before deciding about an objection.
Judge Mock acknowledged at this point that, “yes, I did raise my voice.” He said that in those instances he believed that her objections were not made in good faith, or that she was repeating her comments on subjects that he had already decided upon.
Judge Mock stated that the appeals courts will do their job and examine what they examine. He said that despite his yelling, the jury has been instructed to disregard any and all of that.
Ms. Druliner replied that, though the jury may very well have been so instructed, juries always believe that “the judge is the smartest lawyer in the courtroom” and that if he is displeased that there must be a good reason for it, and that his yelling at her will sit heavily and prominently in their minds.
DA Pushes For Prison Over Probation
Ms. Susz argues in her brief, “While the jury acquitted defendant of the oral copulation by force or duress, the court may still consider those facts in evaluating the nature, seriousness, and circumstances of this crime as compared to other instances of the same crime. In this evaluation, the court may consider conduct for which defendant has been acquitted, so long as that conduct has been proved by a preponderance of evidence.”
She argues, “While defendant was eighteen years old, and [the accuser] was sixteen years old when this crime occurred, this is not [just] a “statutory rape”-type case.”
“To the contrary,” Ms. Susz claimed, “[the accuser] testified at trial she did not want to engage in any type of sexual conduct with defendant, and she further testified she certainly did not want to orally copulate the defendant.”
Ms. Susz cites a case that argues, “the court may consider charges defendant was acquitted of if the court finds that there is any reliable information that can be gleaned from it.”
Thus it would appear that the prosecution is looking to sentence Mr. Artz based on evidence for which the jury acquitted him on. The prosecution argues, “the facts of this case do not support a conclusion that the oral copulation that occurred between [the accuser] and defendant in August 2008 was consensual.”
However, Ms. Susz seems to conveniently ignore the fact that the jury did not find the accuser’s testimony particularly credible. There were inconsistencies both in her story and in her reaction to the incident.
A juror, in fact, wrote on the Vanguard shortly after the verdict, “Not for one minute did I think he forced her.”
That is a very different account than what DDA Susz gives. The juror actually both reported to us after the incident and on the Vanguard that they [the jury] did not want to convict Mr. Artz of any charges, but believed [they were] compelled to by the letter of the law. The juror was also unhappy that Mr. Artz was charged with sexual contact with a minor, but the accuser’s girlfriend was not.
“She was dating a girl that was 6 months older then Michael and THAT was OK! Makes me sick!,” the juror wrote.
The juror later pointed out, “The girlfriend was 6 months older then Michael!! And it was made clear that the girls spent many weekends together! But she wasn’t charged!”
So to argue that even the preponderance of the evidence would validate the accuser’s claims is a misstatement of the findings by the triers of fact, the jury.
However, Ms. Susz attempts to muck up the water by bringing into the equation, apparently, the defendant’s sexual appetite and his consumption of and type of porn.
The problem with all of this is that none of that is criminal in nature, and Mr. Artz was basically convicted only for receiving oral copulation from the accuser and having a conversation in which he attempted to receive more oral copulation.
Any prison time for these offenses would not only be a miscarriage of justice, but would also represent a waste of taxpayer money at a time of fiscal crisis in this state.
—David M. Greenwald reporting