According to court filings by Defense Attorney Kathryn Druliner, she was seeking to disqualify Judge Mock based on section 170.1 of the Code of Civil Procedure.
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.”
The motion immediately halted the sentencing and Judge Mock gave the attorneys until Tuesday to agree to select a judge. Failing agreement on a judge to hear the 170.1 complaint, the matter will be referred to the Judicial Council. The matter has been held over until November 12, as a placeholder in order for the case to maintain jurisdiction in Yolo County.
In his written response, Judge Mock stated that he been a Yolo County Judge since January of 1991 and for 17 years has been handling the criminal calendar. “Since my election I have presided without disqualification for cause over more than 300 jury trials,” the Judge wrote.
Prior to that time, he worked as a Deputy DA for Yolo County and has been married to Ann Hurd since 1993, which is a matter of public knowledge. He continued, “The fact that my wife and I both worked in the criminal justice system in Yolo County was mentioned in newspapers articles published in the Sacramento Bee, the Daily Democrat and the Davis Enterprise during 2007-2008.”
He continued, “In July, 2010, my wife was re-hired in the Yolo County District Attorney’s Office as a part-time employee. She was not asked to supervise Ms. Susz, the prosecutor in this case. Indeed she has never supervised Ms. Susz. I have never discussed the merits of this case with Ms. Hurd and she has never discussed it with me.”
“On August 6, 2010, before trial began, I met in my office with Ms. Druliner and Ms. Susz. I keep a large photograph of my wife on my desk. The photograph faces the chairs in which visitors sit. I intentionally placed it there so that any visitor to the office will see it. During this meeting, Ms. Susz asked when the picture had been taken. I told her that I took it during our recent vacation,” he continued.
Furthermore he claims, “The jury trial in this matter commenced on August 27, 2010. Undoubtedly, the trial was contentious. Many objections were raised by both attorneys. I sustained numerous objections made by each lawyer, while overruling others. I am precluded from commenting on specific rulings, since this case is still pending. All I can state is that I endeavored to rule on each objection in accordance with the law.”
In response to several of Judge Mock’s points, one of the problems with the relationship is not whether Judge Mock discussed a particular case with his wife, but whether their relationship and her position presents an inherent conflict of interest. His wife may no longer have been the supervising Chief Deputy DA when the trial commenced, but when the case was filed, she was.
Second, having a picture of his wife on his desk is meaningless. To an individual not familiar with Yolo County, there would be no way of knowing that she had been the Chief Deputy DA for several years.
Third, he suggested in his written response that he ruled during the trial on numerous objections. However, it seemed he often did so almost capriciously, with no rhyme or reason. On major rulings, almost all went against the defense. And he failed to address his tone or the fact that he raised his voice, admittedly, in front of the jury.
He concluded, “Given the circumstances [in] set forth herein and the paucity of facts contained in Ms. Druliner’s declaration, it is my belief that Ms. Druliner knew facts or at the very least, should have known.– of the facts supporting the purported ground for disqualification before trial in this matter commenced. Defendant’s failure to present this statement of disqualification at the earliest practicable opportunity compels its denial. Because defendant states no timely grounds for denial, I decline to voluntarily recuse myself.”
Ms. Druliner argued, regardless of what he believed was the case, it was his duty to disclose the relationship regardless of whether he believed defense knew or should have known.
Judge Mock also argued, “I respectfully submit that no one who attended all of the hearings and the trial and who was privy to all the in-chamber discussions we had in this case would “reasonably entertain a doubt” regarding my ability to be impartial in this matter.”
Among myself and several of my assistants, we sat through the entire trial and I have very serious doubts about his ability to remain impartial in this matter, given his conduct which appeared unequitable and at times unprofessional.
Speaking to the Vanguard after the hearing, Defense Attorney Kathryn Druliner indicated expectation that the matter will end up with the Judicial Council selecting a retired judge from another county to preside over the matter.
Once it gets before a new judge, she will seek a new trial for the two charges on which the defendant Michael Artz was convicted – sexual contact with a minor and the charge for having discussed with the minor his intentions to have future sexual contact.
Due to the attachment of double jeopardy, Mr. Artz would not be able to be tried under the original forced oral copulation charge, of which he was acquitted.
This maneuver by the defense will likely delay this matter for months, if not longer. Ms. Druliner said that the Judge would need to look at the court transcripts, which would have to be translated from their current form into English renderings. That itself will take a number of months.
This is not the first time that a defense attorney has moved to disqualify Judge Mock under 170.1. Richard Van Zandt of the Public Defender’s Office made such a motion a few years ago, but it was a blanket motion and was more difficult to prove.
Attorney Fred Dawson and Clyde Blackmon did it in the Volarvich trial, where the defendant was convicted and sentenced to the death penalty for killing CHP Officer Andy Stevens back in 2005.
Ms. Druliner argued that the Public Defender’s Office attempt was too early and too broad, as they sought to exclude all cases on the court calendar.
While the attempt in the Volarvich was also too early in her view, the Judge who examined that case concluded it was a “close call.” That case was still filed too early, as it was after pretrial proceedings but before the trial. They had no decisions showing bias in fact. It was all based on the theory and appearance of a conflict.
In this case, she argued there are 30 to 40 clear and actual examples of bias in the rulings that Judge Mock made, in his repeated refusal to allow her to approach to discuss rulings, and in his demeanor. She argued that if it had been a close call in the Volarvich case, in which she believes the verdict may be thrown out on upon appeal, she believes this one is a slam dunk.
Given the Judge’s observed conduct during the trial, there is probably a good factual basis to challenge the Judge’s ability to be fair and impartial. However, at the very least this will delay imposition of a sentence for a number of months, which should be advantageous to the defendant, seeking probation. Deputy DA Tiffany Susz is pushing for a prison sentence, based in part on alleged behavior that the defendant was acquitted of.
—David M. Greenwald reporting