In a letter this week, attorney Christopher Dietrich writes that “the board’s action sets a dangerous precedent and represents an overreach by our county’s legislative branch of government.
“The independence of our judiciary is an integral component of our system of government. Judges must be free to interpret and apply the law in each case before them. The judiciary is not a political body, and attempts by other branches to exert political pressure upon this independent institution should be met with concern and outrage by our citizens.”
Why is this such a bad precedent? Imagine instead of dealing with dependency court, we are dealing with criminal court. In a high profile case, a judge makes a controversial ruling against the DA’s office. Since pretty much every case has to go through the DA’s office for prosecution (except in rare circumstances where the Attorney General’s office may prosecute the case due to conflict), the DA’s office can pretty much use their 170.6 discretion to do what the supervisors did with Judge Basha.
Far-fetched you say? Well, talk to old-timers and they will tell you about Judge William Lebov, a former prosecutor, who was seen to rule often with the defendants. So the Yolo County DA’s office, under David Henderson, used the Code of Civil Procedure section 170.6 motion – or what is known as “papering” – to get cases out of his courtroom. Eventually, he had no cases left in front of him and he was forced to retire.
In the case of Judge Basha, rather than confront the county, he requested a reassignment.
Did circumstances warrant it? I have spoken to a lot of people on this and many believe that the county acted improperly, but that the seeming arrogance of the court led people like Supervisors Jim Provenza and Oscar Villegas to have no choice.
Mr. Dietrich, for his part, notes, “The board alleged no misconduct or unethical behavior on behalf of Judge Basha, merely a dissatisfaction upon the way the law was applied in particular instances.”
Mr. Rexroad defended his actions by arguing that they were not trying to cook the books, that the new judge would rule on the case, but I think he misses an essential point that the supervisors have now put their thumbs on the scales and have inserted their policy concerns over a potential application of the law through proper process.
We see this most seriously at play in Orange County where Judge Thomas Goethals, also ironically a former prosecutor, made unfavorable rulings in the murder trial of Scott Dekraii – that has been sidetracked by allegations of a plot by the sheriff’s office and prosecutors to conceal a long-running jailhouse snitch program that has garnered national attention.
In August 2014, the judge criticized the DA’s office for failing to turn over exculpatory evidence and then recused the entire DA’s office from the death penalty phase of the case. This prompted an appeal by the Attorney General’s office that excoriated the DA’s office.
In March 2015, the LA Times reported that since February of 2014, the DA’s office used 170.6 in 57 cases. The Orange County Register in January of 2016 reported, “The Orange County District Attorney Office’s practice of ‘blanket papering’ Superior Court Judge Thomas Goethals is disrupting the county’s court system and violates state and federal constitutions, a local judge has ruled.”
“The People’s actions have substantially disrupted the orderly administration of criminal justice in Orange County, the sixth-largest county in the nation,” Superior Court Judge Richard King wrote in a December 3, 2015, ruling. “It has negatively impacted not only the assignment of murder cases, but all felony cases as well.”
The DA, of course, denies an “organized effort to remove Goethals from cases and that King doesn’t have the authority to take peremptory challenges away from prosecutors.”
“Prosecutors have consistently litigated their cases in front of Judge Goethals, including a serious robbery case in his courtroom today,” his statement said.
The paper reports, “But King said prosecutors have papered Goethals in 46 of 49 murder cases assigned to his courtroom between February 2014 and September 2015, under a legal provision that allows both prosecuting and defense attorneys to remove judges as a peremptory challenge.”
However, in March, an appellate court upheld the DA’s right to a peremptory challenge to disqualify Judge Goethals.
The appellate court ordered Orange County Superior Court “to vacate its orders denying OCDA’s 170.6 motion” and also found that “there has never been ‘blanket papering’ of any judicial officer.” The DA’s office maintains, “Any exercise of peremptory challenge made by any member of the OCDA has been the individual prosecutor’s decision to do what is in the best interest of the People, public safety, and crime victims.”
Regardless of the outcome of the Judge Goethal’s case, we can see the chilling effect of blanket 170.6 motions. In Judge Goethal’s case they appeared to target him mainly on murder cases, rather than all cases.
The ruling by the appellate court only backs up how difficult it would be to fight a blanket 170.6 motion.
As the OCDA explains, under 170.6 every party is granted the right to exercise “a single peremptory challenge against any judge that litigant believes, in good faith, is prejudiced against him or her or his or her case.”
They continue, “The law does not require any party to explain their reasons for peremptorily challenging a judge, nor may a court inquire into those reasons. It requires only that the party have a good faith belief that prejudice exists.”
The problems of abuse of that process are clear. Judge Goethals had a case of overwhelming evidence of malfeasance before him – and the appellate court backed him up on the enormity of that evidence. And yet the DA’s office has tried to punish him by removing murder cases from his courtroom – not just to impact him but to make an example of him to other judges who would issue rulings against the DA’s office.
This represents a serious and grave threat to the independence of the judiciary.
The unanswered question is now that Judge Sam McAdam has been moved to dependency court, what happens if he rules in the same manner as Judge Basha or what happens if he rules completely differently – will other parties see him as acquiescing to political pressure?
While I think Matt Rexroad and others have raised serious concerns, it seems that those concerns need to be addressed via legislation that would change the laws rather than changing the judge.
—David M. Greenwald reporting