DA’s Office Abuses Process To Intimidate Judge

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Reisig-2010_copyBritt Davis faces multiple felonies for making threats to and dissuading a witness. It would appear to be a domestic violence case, as there is a protective order signed providing for no contact with two individuals.  However, in this case, at least at this time, that is secondary.
What is primary is that this case gives us good insight into the strategic practices of both the Yolo County District Attorney’s office and the Yolo County Public Defender’s office.

When an individual is arraigned and enters a not-guilty plea, the case is assigned a courtroom by Commissioner Janene Beronio.  It was at this point that Ms. Beronio assigned this case on July 15 to Judge Janet Gaard.

Immediately, Deputy Public Defender Lisa Lance filed a motion under Code of Civil Procedure 170.6 (known commonly as “.6” or “point-6”) in which she declared “that the Honorable Janet Gaard, Judge of the said Court before whom proceedings in the aforesaid action are pending, is prejudiced against the Defendant or the interests of the Defendant so that affiant believes that said Defendant cannot have a fair and impartial hearing before such judge, without excessive penalties.”

Under 170.6, “A party to, or an attorney appearing in, an action or proceeding may establish this prejudice by an oral or written motion without prior notice supported by affidavit or declaration under penalty of perjury, or an oral statement under oath, that the judge, court commissioner, or referee before whom the action or proceeding is pending, or to whom it is assigned, is prejudiced against a party or attorney, or the interest of the party or attorney, so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge, court commissioner, or referee.”

In short, at least ten days before the date of the next hearing, an attorney can effectively disqualify a judge.  They can only do this once and they can do it summarily, by simply declaring prejudice.

This likely happens quite a bit.  But what was really unusual is that Ms. Beronio then assigned the case to Judge Paul Richardson.  This time Deputy DA Deanna Hays filed a 170.6 motion to dismiss Judge Richardson.

What is going on?  We have heard for some time that each department is angry at a respective judge – this is really the first clear example that we had to substantiate it, though we had made a public records request a month or two ago, but the information was not retrievable.

For the Public Defender’s office, we believe that this goes back to the Arreola matter.  In that case, Judge Gaard had requested evidence be turned over to the defense.  When the DA refused, she had calendared a motion to show cause.  However, she then changed her motion, failed to show up at the next hearing, ultimately ordering the evidence be turned over, but only at the DA’s office.

That anger likely extended into the Woodall case, where Judge Gaard found good cause to continue a trial because the Deputy DA who had confirmed it for trial just four days prior was reportedly tired from another trial.  In that same trial, she made the unusual step of asking the jury after they had already rendered a verdict to go up and render another verdict after she overruled a DA objection.

The general feeling is that Judge Gaard has been pushed around by the DA’s office and is not rendering fair decisions, and when she does, she does not enforce them.

However, the Public Defender’s office lacks the clout that the DA’s office does.  The Public Defenders may represent a large amount of cases in the Yolo County courts, but it is far from a monopoly.

That is the power that the DA’s office possesses.  The story of Judge William Lebov is an interesting story.  He was a former prosecutor and was seen to rule often with the defendants.  So the DA’s office, under David Henderson, began to “paper” him, or use point-six motions to get cases out of his courtroom.  Eventually, he had no cases left in front of him and was forced to retire.

What is odd is that now the DA’s office is apparently “papering” Judge Paul Richardson.  Judge Richardson is another former Deputy DA from Yolo County.  He has a reputation for favoring the prosecution, however.

He is the judge presiding over the death penalty case of Marco Topete, charged with murdering Sheriff’s Deputy Tony Diaz.   Apparently the DA’s office is upset that Judge Richardson has been “too fair” with Mr. Topete and has ruled against them on a few motions.

At this point, it appears that the goal of this effort is not to remove Judge Richardson but rather to send a message to him and remind him of what happened to Judge Lebov.

What is important to bear in mind here is, first of all, the disproportionate power that the DA’s office has been given.  This is also an artifact of changes made to streamline the process whereby a judge is assigned “for all purposes.”

Also, one needs to understand that, given the rulings that Judge Gaard has made and we have reported, the Public Defender’s office is looking out for the best interests of their clients.  The DA’s office is trying to intimidate an already-sympathetic judge who apparently is not sympathetic enough for them.

The irony is that Mr. Topete, with or without these machinations, would be facing the same fate should he, as expected, be convicted and sentenced to be executed.  In other words, this is a needless act, but the DA’s office gets to flex its muscles and remind everyone that their fate rests in their hands.

Legal, yes.  But do you want a system that permits the DA to do this?  One solution would be to get rid of the practice of judges serving for all purposes.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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36 thoughts on “DA’s Office Abuses Process To Intimidate Judge”

  1. kathryndruliner

    The DA’s office should consider the fact that their convictions are being overturned by the 3d District Court of Appeal when the Judge allows them their misconduct.

    A conviction (of lets say a guilty person) that is over-turned due to error (that Judge Richardson and others might be trying to prevent —– that is their job—– just means another trial and more money out of the taxpayers coffers.

    Someone should have a strong word with the DA about the big picture… Maybe the voters?

  2. Tecnichick

    The system should be about presenting all of your evidence to 12 people and see if they will convict but in reality, that’s now how it is. The DA practices the art of manipulation. Its a huge game of chess and any part, no matter what the significance can be moved upon an taken out the game. Furthermore, to add to the manipulation tactics, the DA will hire “expert” witnessess who will testify in whatever he wants them to say. Sadly, many convictions are a result of smoke and mirrors and not about facts or evidence. The motivator here is not justice, it’s about money, politics and power.

  3. Fight Against Injustice

    It would be very interesting to see how often the DA’s office and the Public Defender’s office file a 170.6 motion. Keeping a record of this would allow us to see if there is a pattern here. It is too bad that your public information request for this information was not available.

    It is also interesting that a motion can be filed without presenting any real reason for claiming prejudice.

  4. E Roberts Musser

    Where do I begin? This article is so full of holes…
    1) Where in this article specifically do you cite a situation in which the “DA’s Office ABUSES PROCESS to intimidate a judge”? Where did the DA “abuse process”, i.e. do something they were not permitted to do, that was somehow outside the law? What particular judge has been “intimidated”? I wonder if any of the judges would agree w your assessment they have been “intimidated”?
    2) Both sides, prosecution and defense, employ the use of 170.6. How come the prosecution is “abusing process”, but somehow the defense is not? You cannot have it both ways.
    3) Why was it “really unusual” for Beronio to assign Judge Richardson after Guard had been disqualified under 170.6? What nefarious motives are you assigning to Beronio? Normally judges are rotated at random, and the next person on the list is chosen.
    4) The Public Defenders Office lacks clout and does not have a “monopoly”, but the DA does have a monopoly and therefore clout – merely because the DA’s Office handles all criminal cases and the Public Defender only handles most cases? What about a client’s hired attorney? Are you saying the hired attorney cannot step into the shoes of a Defender and have the right to use 170.6? That is not my reading of the statute…
    5) How do you know why Judge Lebov retired? Can you get into his head and read his mind?
    6) Is it not true a 170.6 motion can only be used ONCE? How is that “papering” a judge? Isn’t this more a case (pardon the pun) of “forum shopping”? I’ve got news for you – this goes on all the time in the court system…
    7) If the DA “papers” Judge Richardson as you are trying to claim (and you admit Richardson is generally pro-prosecution, so your argument doesn’t even make sense), how does the DA know who he is going to get for a judge the next time on the Topete case? It could be a pro-defense judge…
    8) Yolo County judge’s are being “intimidated” by the DA’s Office? How could you possibly know what is in the minds of the judges? Have you interviewed any of them? Do they claim to be “intimidated” by the DA’s Office?

    Vague innuendos, misinformation, etc. do not a credible story make. There are plenty of things wrong w our legal system, but I’m just not following the reasoning in this diatribe…

  5. Roger Rabbit

    lol, this is standard procedure for the cowardly DA’s Office led by Reisig. When they don’t get their way they try and bully or intimidate. This same thing recently happening in a civil case where DA Reisig tried to get the court to over-turn a ruling against him in a case with Gore vs Yolo.

    This was a low level civil hearing where the Judge ruled against DA Reisig and the DA wasted public funds and had county counsel file an appeal. In an attempt to influence the Judge, the “busy” DA showed up for the hearing. Not only did Reisig show up, he made his second in command Dep DA Raven and his Chief Investigator Nailboff also show up. A back door way to try and influence the Judge to over-turn his previous ruling.

    The Judge ruled against DA Reisig again and now the word in the DA’s office is that Judge is an idiot.

    Typical Reisig, if I can’t bully you, I will call you names and make false and misleading press releases.

    The tax payers and county supervisors should take note, when the DA wants more money talking about how busy his office is, yet he has time to show up with two highest paid people in the DA’s office all to just watch a civil hearing. You would think his time might be better spent trying to convict murders and protect victims.

  6. David M. Greenwald

    Good questions Elaine.

    So there is a legitimate process by which a judge can be dismissed through 170.6, but obviously the law was not put in place to allow an office to use that process either to completely avoid the judge or intimidate them. That obviously is therefore an abuse of process.

    No judge is going to admit to being intimidated, but we have two examples from recent history, one Judge Lebov who retired when he essentially had no work and the other Judge Fall who at least according to observers became more favorable toward the DA’s office.

    “Both sides, prosecution and defense, employ the use of 170.6. How come the prosecution is “abusing process”, but somehow the defense is not? You cannot have it both ways. “

    I explained that if you were paying attention. The DA’s office has a monopoly or a virtual monopoly on all criminal cases, the Public Defender’s office does not.

    There was nothing unusual about Judge Beronio to assign Judge Richardson. The unusual part was to have two point-six back-to-back. That was bad sentence construction on my part.

    I’m not following your point on four.

    On five, I know that he had no cases before him due being papered and he retired. You are free to reach whatever conclusion you which based on that data.

    The point six motion can only be used once per case. So every time it comes to Judge Richardson, the DA would file a point motion.

    On your seventh point, you are missing the point here. Judge Richardson is the only judge that can take Topete. They are angry at his rulings and thus using point six in other cases to send the message that he had better come down the right way on Topete or else get what Lebov got.

    Again, you watch the change in behavior before and after and see if how the judge rules changes.

  7. E Roberts Musser

    [quote]So there is a legitimate process by which a judge can be dismissed through 170.6, but obviously the law was not put in place to allow an office to use that process either to completely avoid the judge or intimidate them. That obviously is therefore an abuse of process. [/quote]

    There is a legitimate process, but if the process is used, its somehow abuse of process? With that circular logic, the Public Defender’s Office is just as guilty of “abuse of process” as the DA’s Office. This won’t fly. Bottom line is forum shopping goes on all over the nation – it is part of the legal system, as are peremptory challenges to jurors. If you don’t like the law, fight to change it.

    [quote]No judge is going to admit to being intimidated, but we have two examples from recent history, one Judge Lebov who retired when he essentially had no work and the other Judge Fall who at least according to observers became more favorable toward the DA’s office. [/quote]

    How can anyone possibly know what was in these judge’s minds, w/o speaking to them directly? I didn’t know people could read other people’s minds! When did this unique technique become available/was it invented? I’m not trying to be snarky here, but good grief, this is positive guesswork here w absolutely nothing to back it up! Until you talk to the judge’s in question, you cannot know what is in their minds. And by the way, in what way was Fall somehow more “pro-prosecution”, and according to whom?

    [quote]I explained that if you were paying attention. The DA’s office has a monopoly or a virtual monopoly on all criminal cases, the Public Defender’s office does not. [/quote]

    This just won’t fly. According to my reading of the statute, defense attorney has as much right to use the 170.6 motion as the Public Defender does. In other words every defendant has as much right to use a 170.6 motion as the prosecution does. Or do you know something about criminal law and this specific statute that I don’t? If yes, please direct me to the appropriate link that says otherwise…

    [quote]On five, I know that he had no cases before him due being papered and he retired.[/quote]

    Or did he have very few cases before him bc he was getting ready to retire? How can you possibly know anything about why he retired unless you ask him?

    [quote]The point six motion can only be used once per case. So every time it comes to Judge Richardson, the DA would file a point motion. [/quote]

    And how often has Richardson been “papered”? Do you even know the statistics for all judges and how often each had been “papered”, as you call it? Furthermore, when a judge gets “papered”, it is the luck of the draw what judge is next chosen, and the one chance to “paper” a judge is gone. It is a question of the devil you do know versus the devil you don’t.

    [quote]They are angry at his rulings and thus using point six in other cases to send the message that he had better come down the right way on Topete or else get what Lebov got. [/quote]

    How could you possibly know what is in the DA’s mind? You certainly have a very low opinion of the integrity of our Yolo County judges to think they could so easily be intimidated. Nor does it pass the logic test, since one “papering” could result in a worse judge for the prosecution, who might be shooting himself in the foot. If one looks for conspiracies, they are sure to find one…

  8. E Roberts Musser

    [quote]No judge is going to admit to being intimidated…[/quote]

    Especially if its not true! But did you ever ask? Or are you just getting the Defense bar’s perspective only?

  9. E Roberts Musser

    Actually, come to think of it, I’m not even convinced the defense bar would agree w your assessments… would the Public Defender’s Office like to back up your claims w a statement of their own in regard to your “theories”?

  10. JustSaying

    [i][quote]“Where do I begin? This article is so full of holes… “[/quote][/i]No, no, no, Elaine, you are so wrong this time. How can there be [u]any[/u] holes if there’s not some substance into which a hole could burrow. Think donut.

    As you well know, David has a special ability to develop an otherwise accurate and sensible story, and then turn it on its head with a single, outrageous and unsubstantiated claim from left field. But, this story takes the prize for nonsense (in a field already littered with several notable highlights from earlier weeks).

    Starting with a headline that promises much, followed by a story that delivers not a whit of fact to support the premise, we’re left trying to squeeze on a ribbon of smoke. [quote][b]”DA’s Office Abuses Process To Intimidate Judge”[/b][/quote]
    Just one step away from the reigning grand champion:[b][i][quote]“Yolo DA Flies over Courthouse in Alien Spaceship Firing Automatic Weapon to Cover Deputies Raping Defense Attorneys, Blogger and Children While Mentally Defective Judges Force Burning Pokers into Eye Sockets of Innocent Defendants of Color”[/quote][/i][/b]Any evidence of “process” being “abused”? Charges filed against DA? Any defense attorneys complaining? Any judges complaining about (or even hinting about) or observed being intimidated? These are serious charges that very well could be criminal. But they occur only in David’s active imagination.

    Even with free-floating conspiracy theories trying to serve as glue, it just ends up like a puddle of exhausted Silly Putty. David is fortunate that you have such patience, Elaine, to provide him with a dozen thoughtful observations that pick apart all reason he might have imagined he had for his fuzzy conclusions.

    Instead of a simple “thank you,” David replies with a series of illogical explanations trying to justify the unjustifiable. Then follows the standard devices trying to brush away your points (“I explained that if you paid attention…I’m not following you….You are free to reach any conclusion you wish).

    I still fail to see why David tossed together this piece, full of innuendo and guesses without any foundation, and without quoting a single one of the many people who would have been affected if even one of these charges was true.

  11. David M. Greenwald

    Holy crap Elaine, you’ve just about misconstrued everything I have written.

    I’m wondering if responding to you will help you understand my point better or just be an exercise in futility.

    “There is a legitimate process, but if the process is used, its somehow abuse of process?”

    They are using a legitimate process strategically for reasons that the process was not intended – i.e. instead of on a case by case basis if they believe a judge would be biased on a particular matter, instead on a systematic basis to manipulate the system. Shopping occurs, it is part of the system, this moves beyond shopping into the realm of attempting to influence judicial decision making and intimidation.

    “How can anyone possibly know what was in these judge’s minds, w/o speaking to them directly?”

    Elaine, you do not need to know what is in someone’s mind if you observe behavior change. I can’t read Malachi’s mind, but I can tell when he’s upset when I tell him to do something and he starts pouting. Same thing here.

    “According to my reading of the statute, defense attorney has as much right to use the 170.6 motion as the Public Defender does. In other words every defendant has as much right to use a 170.6 motion as the prosecution does. “

    Again, the DA’s office tries every case, the PD’s office defends only a percentage of cases, the rest go to conflict attorneys and private attorneys. The DA avoiding a judge thus can reduce his case load to zero. The PD avoiding a judge, just means more conflict attorneys and private attorney cases are in their courtroom. This is not rocket science, it’s basic math.

    “Or did he have very few cases before him bc he was getting ready to retire? How can you possibly know anything about why he retired unless you ask him? “

    Because I know why he had few cases before him because multi people who were defense attorneys and working in the DA’s office told me what happened and they were not people who were talking to each other, and I when I say multiple people, I mean more than ten.

    “And how often has Richardson been “papered”? “

    As I explained in this article, I did a public records request but they did not enter that data into their computer so I was unable to find out that way. What I know is that I have been told, again by multiple sources it was happening, and this case proved to be a good example that showed it was happening.

    “Furthermore, when a judge gets “papered”, it is the luck of the draw what judge is next chosen, and the one chance to “paper” a judge is gone. It is a question of the devil you do know versus the devil you don’t. “

    Obviously. But this point misses a tremendous amount. There are five courtrooms that do felony courtrooms, so either you paper the judge you consider the worst or you do the judge that you are trying to send a message to. The PD’s office at this point considers Gaard the biggest problem for them, so they are avoiding her department. The DA’s office is sending Richardson a message.

    “How could you possibly know what is in the DA’s mind? “

    People talk around the courthouse. It’s a small place.

  12. David M. Greenwald

    “Especially if its not true! But did you ever ask? Or are you just getting the Defense bar’s perspective only? “

    I don’t know if Judge Richardson is going to be intimidated. But we will be watching the Topete trial and it will be easy to figure out.

    BTW, you said earlier how could I know what is on the DA’s mind, it is pretty easy to see when an attorney is frustrated and flustered by a ruling. It’s not that subtle. And most don’t try to hide their frustration.

  13. David M. Greenwald

    “Actually, come to think of it, I’m not even convinced the defense bar would agree w your assessments… would the Public Defender’s Office like to back up your claims w a statement of their own in regard to your “theories”? “

    They certainly wouldn’t do it on the record.

  14. David M. Greenwald

    Justing Saying:

    I waiting for you to make a substantive point, but it never came.

    I think this is the crux of your point:

    “Any evidence of “process” being “abused”? Charges filed against DA? Any defense attorneys complaining? Any judges complaining about (or even hinting about) or observed being intimidated? These are serious charges that very well could be criminal. But they occur only in David’s active imagination. “

    There is a lot of evidence of process that is being abused. The DA’s office has been point-sixing Judge Richardson. I know this because multiple attorneys have told me this was happening. I don’t have actual numbers because apparently they DA’s office doesn’t track such numbers. However, I have been able to find a number of these cases. I also know that they did before with Judge Lebov.

    Why would charges be filed against the DA and by whom?

    Judges don’t talk about such things and certainly not to reporters.

    Are defense attorneys complaining? Yes. Are they going to say anything on the record? No one puts anything on the record, the place is too small and everyone goes along to get along and then grumble privately.

    Occasionally an out of town attorney who doesn’t try many cases here will speak up when their client gets caught up in this system. It’s a tough nut to crack.

    But this is happening, it is not a figment of my imagination, it happened before and it is happening now.

  15. 91 Octane

    Vanguard: “Because I know why he had few cases before him because multi people who were defense attorneys and working in the DA’s office told me what happened and they were not people who were talking to each other, and I when I say multiple people, I mean more than ten.”

    that is heresay and office gossip. If you want to continue using this as a basis for your articles, have at it. But it hurts your credibility as a reporter.

  16. E Roberts Musser

    Just Saying:
    [quote]Instead of a simple “thank you,” David replies with a series of illogical explanations trying to justify the unjustifiable. Then follows the standard devices trying to brush away your points (“I explained that if you paid attention…I’m not following you….You are free to reach any conclusion you wish). [/quote]

    DMG:
    [quote]Holy crap Elaine, you’ve just about misconstrued everything I have written. I’m wondering if responding to you will help you understand my point better or just be an exercise in futility. [/quote]

    To Just Saying: You mean like the above comment? LOL

  17. E Roberts Musser

    [quote]They are using a legitimate process strategically for reasons that the process was not intended [/quote]

    What tortured logic “we” do weave… and how do you know what the law was “intended” for? Can you now read the minds of the legislators? How do you know the judges are intimidated? Did you ask them? Or can you read their minds too?

    [quote]Elaine, you do not need to know what is in someone’s mind if you observe behavior change.[/quote]

    And what specific behavior change did you personally observe in the case of Lebov? Richardson? Or are you relying on hearsay from a some disgruntled attorney?

    [quote]Again, the DA’s office tries every case, the PD’s office defends only a percentage of cases, the rest go to conflict attorneys and private attorneys. [/quote]

    But conflict and private attorneys can use 170.6, so prosecution and defense have EQUAL access to this motion. In other words the defense has just as much opportunity to influence the judge as the prosecution. Your logic just does not add up!

  18. E Roberts Musser

    [quote]Because I know why he had few cases before him because multi people who were defense attorneys and working in the DA’s office told me what happened and they were not people who were talking to each other, and I when I say multiple people, I mean more than ten. [/quote]

    In other words you relied on hearsay (from who specifically?), rather than interview the judge himself? Do you understand how unreliable hearsay is, and why it generally is excluded from the courtroom? LOL

    [quote]As I explained in this article, I did a public records request but they did not enter that data into their computer so I was unable to find out that way. What I know is that I have been told, again by multiple sources it was happening, [/quote]

    Hearsay yet again? No data whatsover to back up your claim? Didn’t ask the judge?

  19. E Roberts Musser

    [quote]Are defense attorneys complaining? Yes. Are they going to say anything on the record? No one puts anything on the record, the place is too small and everyone goes along to get along and then grumble privately. [/quote]

    So you admit your evidence for this theory is hearsay from disgruntled members of the defense bar?

    [quote]But this is happening, it is not a figment of my imagination, it happened before and it is happening now. [/quote]

    “Why is this so? How can it be?” (approximation of famous quote) Because you say so? Because disgruntled members of the defense bar say so? Because it is a rumor floating around the courthouse? Judge Lebov is retired, no? Did you ever try to interview him, for his perspective? Or did you just decide to believe the rumor mill?

  20. E Roberts Musser

    [quote]erm: “Furthermore, when a judge gets “papered”, it is the luck of the draw what judge is next chosen, and the one chance to “paper” a judge is gone. It is a question of the devil you do know versus the devil you don’t. ”

    dmg: Obviously. But this point misses a tremendous amount. There are five courtrooms that do felony courtrooms, so either you paper the judge you consider the worst or you do the judge that you are trying to send a message to. The PD’s office at this point considers Gaard the biggest problem for them, so they are avoiding her department. The DA’s office is sending Richardson a message. [/quote]

    Obviously is right! You are missing the point that you are getting a very skewed view from disgruntled defense attorneys and the rumor mill floating around the courthouse. And you suck this stuff up like a sponge, bc it fits your world view the DA is as crooked as a dog’s hind leg. You are missing the basic point that the prosecution and defense each get one peremptory challenge to remove the judge – it matters not one whit to the law if the reason is because the Pope died yesterday, the motives are impure, the justification is ethical as all get out. If you don’t like the system, then do something constructive to change it. But IMHO, your credibility is suffering w this kind of illogic and listening to the local gossip as if it were truth…

  21. E Roberts Musser

    [quote]erm: “How could you possibly know what is in the DA’s mind? ”

    dmg: People talk around the courthouse. It’s a small place. [/quote]

    Yes, it’s a small place, where gossip abounds. People talk, people gossip, people lie, people embroider the truth, people tell half truths, people make stuff up. That doesn’t make it so. How do you sift fact from fiction, or do you have some magical machine that filters out only the truth from what you hear? If you do, you should patent it, and make yourself a millionaire! Or do you just assume you are an expert at sifting out the truth? A bit presumptive, don’t you think? And what “truth” would that be? The one you WANT TO BELIEVE?

  22. E Roberts Musser

    [quote]BTW, you said earlier how could I know what is on the DA’s mind, it is pretty easy to see when an attorney is frustrated and flustered by a ruling.[/quote]

    How do you get from “frustrated and flustered by a ruling” to the judge must be intimidated by the DA?

    [quote]They certainly wouldn’t do it on the record.[/quote]

    If they won’t do it on record, then its not worth the paper its written on (pun intended)! 🙂

  23. E Roberts Musser

    [quote]There is a lot of evidence of process that is being abused. The DA’s office has been point-sixing Judge Richardson. I know this because multiple attorneys have told me this was happening. I don’t have actual numbers because apparently they DA’s office doesn’t track such numbers. [/quote]

    I know this bc so-and-so said so, even tho I have no actual evidence? I just know its so bc I want it to be so? LOL

  24. E Roberts Musser

    [quote]Want a hint, a lot of lawyers read this every day. Some even occasionally comment. More will comment or email me. I did not get a single communication telling me I was wrong.[/quote]

    Nor would you, bc everyone knows which side of the fence you are clearly on… it is so nice when you can create your own universe as you see things…

  25. E Roberts Musser

    [quote]that is heresay and office gossip. If you want to continue using this as a basis for your articles, have at it. But it hurts your credibility as a reporter. [/quote]

    Bingo! And that is really the point of my belabored and “patient” comments as JustSaying refers to them, altho they have become much less patient. Listening and reporting courthouse gossip (and misunderstanding the legal process) does not a story make, and hurts the credibility of the Vanguard as a legitimate news source/opinion blog. When you can come back with some facts and figures or actual “evidence” of some wrongdoing, then do the story. This just was not up to your normal journalistic standards IMHO, and is the direction some of the Vanguard articles have been heading. Stream of thought articles based on gossip are not good journalism…

  26. David M. Greenwald

    “that is heresay and office gossip.”

    This isn’t a courtroom. Articles often rely on accounts not directly witnessed by the journalist. I have based this on sources that were not willing to go on the record, but the stories were corroborated with enough facts and I still have not had a single person refute this story.

  27. David M. Greenwald

    Elaine:

    Let me pose it to you this way, do you believe a legal and legitimate process can be abused? Do you believe for instance, that filibuster has been abused? The other point I would make is that there is an awfully low standard for the use of 170.6 that lends itself to abuse because they don’t need to show any evidence of bias in order to use it.

    I was not there when Lebov was around. I have told from multiple sources what went down. These people did not consult each other and yet they all said the exact same thing. As for Richardson, I never said that he been intimidated, I said that their goal was to intimidate him and we will see what happens during the Topete trial.

    “But conflict and private attorneys can use 170.6, so prosecution and defense have EQUAL access to this motion. In other words the defense has just as much opportunity to influence the judge as the prosecution. Your logic just does not add up! “

    You are not getting this. The DA’s office alone has a monopoly on all prosecutions, the Public Defenders office does not. Why is this such a difficult concept for you?

    “In other words you relied on hearsay (from who specifically?), rather than interview the judge himself?”

    I can’t interview a judge on these types of matters. This isn’t hearsay, it is the reliance on confidential sources. Reporting isn’t a court of law, you are allowed to rely on what other people say in order to tell a story, you do not have to personally observe it.

    “Hearsay yet again? No data whatsover to back up your claim? Didn’t ask the judge? “

    I don’t need to ask a judge if they have been 170.6’d, it is a matter of court record and attorneys directly observe it when it happens in their case. Your arguments make no sense.

    “So you admit your evidence for this theory is hearsay from disgruntled members of the defense bar? “

    I didn’t say any such thing. I had a few attorney tell me this was happening, I told them that the next time it does, let me know. And you see the case I cited. Do you want to see the 170.6 motions, I can post them? Do you want me to post every 170.6 motion that comes to my attention?

    “You are missing the point that you are getting a very skewed view from disgruntled defense attorneys and the rumor mill floating around the courthouse.”

    Really what if I told you that my only source was not defense attorneys. I never said it was. My best sources are often not. You’ve presumed it is. Sorry I’m not going to get people in trouble to suit your whims.

  28. 91 Octane

    Vanguard “Articles often rely on accounts not directly witnessed by the journalist. I have based this on sources that were not willing to go on the record, but the stories were corroborated with enough facts and I still have not had a single person refute this story.”

    sources not willing to go on record are unnamed sources and thus their statements are suspect. if you have any fundamental understanding of journalistic standards, then you know better.
    if you do not know better, then this link will help you.
    http://www.spj.org/ethicscode.asp

    “You are not getting this. The DA’s office alone has a monopoly on all prosecutions, the Public Defenders office does not. Why is this such a difficult concept for you?”

    that didn’t address one iota the point made by elaine about 170.6. if you are upset the prosecution can try cases then that is your beef with the the legal system, not the DA’s office.

  29. 91 Octane

    I do have to wonder if the vanguard has a relatively impartial moderator reading this. If it does, I wonder what he thinks, because the Vanguard appears to be at best skirting the edge of ethical boundaries with this story.

  30. David M. Greenwald

    “sources not willing to go on record are unnamed sources and thus their statements are suspect.”

    As they would say in court, that goes to the weight not the admissibility of the evidence.

    “if you have any fundamental understanding of journalistic standards, then you know better. “

    There is nothing improper about using unnamed sources if I deem them credible, I just have to understand that people like you will not be likely to take my representations at face value. I did corroborate evidence by using multiple sources and finding things such as filed 170.6s to back it up.

    “that didn’t address one iota the point made by elaine about 170.6. if you are upset the prosecution can try cases then that is your beef with the the legal system, not the DA’s office. “

    Elaine’s point is simply that all sides can use 170.6. I acknowledged that. However, that does not give their use of 170.6 equal weight because DA’s try all cases and thus can prevent all cases from entering said Judge’s courtroom. The public defender cannot, because they only defend in half of the cases. That gives the DA much more power than the Public Defender’s office in this respect.

  31. David M. Greenwald

    “I do have to wonder if the vanguard has a relatively impartial moderator reading this. If it does, I wonder what he thinks, because the Vanguard appears to be at best skirting the edge of ethical boundaries with this story. “

    I don’t believe that’s his job.

  32. E Roberts Musser

    [quote]I can’t interview a judge on these types of matters. This isn’t hearsay, it is the reliance on confidential sources. Reporting isn’t a court of law, you are allowed to rely on what other people say in order to tell a story, you do not have to personally observe it. [/quote]

    You definitely need to go to the link provided by Octane (thanks Octane for the link!). Some of the code of ethics (first four):
    * Test the accuracy of information FROM ALL SOURCES and exercise care to avoid inadvertent error. Deliberate distortion IN NEVER PERMISSIBLE.
    *Diligently seek out subjects of news stories to give them the opportunity to respond to allegations of wrongdoing.
    *IDENTIFY SOURCES whenever feasible. The public is entitled to as much information as possible on sources’ RELIABILITY.
    *Always question sources’ motives before promising anonymity. Clarify conditions attached to any promise made in exchange for information. Keep promises.

    [quote]I don’t believe that’s his job.[/quote]

    Perhaps it should be…

  33. E Roberts Musser

    [quote]Elaine’s point is simply that all sides can use 170.6. I acknowledged that. However, that does not give their use of 170.6 equal weight because DA’s try all cases and thus can prevent all cases from entering said Judge’s courtroom. The public defender cannot, because they only defend in half of the cases. That gives the DA much more power than the Public Defender’s office in this respect.[/quote]

    But the defense bar or the defendant in pro per can bring the 170.6 motion, which means the defense can do it just as often as the prosecution…

  34. David M. Greenwald

    “But the defense bar or the defendant in pro per can bring the 170.6 motion, which means the defense can do it just as often as the prosecution… “

    They would have to collude across departments and private practices to do it, whereas the DA has one office to do it.

  35. David M. Greenwald

    Mr. Obvious back on July 10 of last year you wrote: “I am comfortable with the verdict and the sentence. A jury of 12 people believe he did it.”

    However, now that you disagree with the verdict you write, “Looks more like a flawed jury than a flawed investigation.”

    So which is it? A jury of 12 people believe he did it, therefore you are comfortable or a jury of 12 people believe that the prosecution did not meet their burden, therefore it’s a bad jury. As Elaine would say, you really cannot have it both ways.

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