Attorneys seek edge by swapping judges

PAUL PAYNE
THE PRESS DEMOCRAT

Justice isn't always blind in Sonoma County criminal courtrooms.

At least that's the view of prosecutors and defense attorneys, who exercised their right to have their cases assigned to different judges, without cause, a combined 265 times during the past two years.

Judges with a reputation of being tough on criminals received more defense challenges while those thought to be lenient were dismissed by district attorney motions.

The disqualifications are seen by legal observers as a kind of yardstick that measures perceptions of a judge's philosophy, legal experience and fairness in rulings.

"It's a reflection of human nature," said Peter Keene, a professor at Golden Gate University School of Law in San Francisco and a commentator on Bay Area legal issues."There's no question that no matter how hard they try, judges will be biased to some extent."

Attorneys are not required to give a reason whenever a jurist is "papered" under California Criminal Procedure Code 170.6.

Presiding Judge Gary Nadler said disqualifications could be filed over something as benign as court scheduling. Or a lawyer could use it as a tactic to get more time for a trial or to prepare for a case, he said.

"There is no way to tell why a party files such motions," Nadler said. "And the court is not permitted to inquire as to the reasoning behind it."

A review of peremptory disqualifications of judges who handle criminal cases comes as the Superior Court bench prepares for an infusion of new members. As many as five new judges will be joining a bench of 23 jurists - about half in the criminal courts - in January to replace an unprecedented number of retiring jurists.

All promise to uphold the state's code of judicial conduct, which requires that judges remain independent and impartial, "regardless of partisan interests, public clamor or fear of criticism."

"I think we're all fair and impartial," said Judge Gary Medvigy. "At least we try to be."

But Keene and others believe the disqualifications are a sign of how judges are viewed, and whether they are reflecting a leaning of one kind or another.

"Generally, where there's smoke, there's fire," Keene said.

In the 24 months ending Nov.1, criminal-case attorneys sought disqualifications for 17 judges and commissioners handling misdemeanor and felony cases ranging from drunken driving to murder. By statute, each party is allowed one disqualification per defendant without explanation or evidence of bias.

Defense challenges accounted for 80 percent of the disqualifications and were spread among a number of judges. Prosecution challenges focused on just a few.

The makeup of the criminal bench is constantly changing as judges rotate from criminal to civil cases. The two-year time frame reflects a period in which a special court was created to streamline the growing criminal caseload.

The overall leader in disqualifications for the two-year period was Judge Arthur Wick, a former civil attorney and city schools lawyer appointed to the bench in 2006 by Gov. Arnold Schwarzenegger.

Wick was "papered" 61 times by defense attorneys and 12 by prosecutors. His numbers dropped sharply in 2010 as criminal lawyers got to know him, attorneys said.

However, courtroom observers said that could go back up after a ruling in October that some viewed as harsh. He upheld a 13-year sentence in a fatal drunken driving crash.

"I think he's fair," said Karen Silver, a public defender assigned to Wick's felony courtroom. "He follows the law and listens to both sides."

Others receiving a large number of defense challenges were Judge Dana Simonds, also a civil lawyer and Schwarzenegger appointee, with 45, and Medvigy, a former Sonoma County prosecutor tapped by the Republican governor four years ago, with 42. Disqualifications for Medvigy, an Army Reserve brigadier general known as being a stickler for timeliness, surged in the past year.

Another former prosecutor and Schwarzenegger appointee, Judge Ken Gnoss,received 10 defense disqualifications during the period. His challenges by defense lawyers dropped this year after a controversial ruling in which he reduced a prison sentence in a fatal drunken driving crash.

Judge Elliot Daum, a former Sonoma County public defender elected in 2000, had the most disqualifications from prosecutors with 16. Daum ran the felony early case resolution court through 2009 before being reassigned to a civil courtroom, so his criminal statistics reflect 13 months instead of 24. During his last two months as a felony judge, the district attorney disqualified him eight times.

Others who received prosecution challenges included Judge Lawrence Antolini, an ex-Sonoma County prosecutor, with 13, and Judge Virginia Marcoida, a former public defender appointed by Schwarzenegger, with nine. Antolini and Marcoida each had a significant number of disqualifications from defense attorneys as well.

These judges, with the exception of Medvigy, either declined to comment or did not respond to requests to be interviewed.

Nadler, who oversees the bench, said that jurists feel ethically bound not to discuss cases or attorneys who appear before them.

No judges received "blanket" challenges from either side. That happened in 1997 when then-District Attorney Mike Mullins refused to allow Judge Raymond Giordano to preside over his deputies' cases. Mullins launched a similar campaign against Judge Robert Boyd in 2001 before he lost re-election to then-deputy district attorney Stephan Passalacqua. At the time, Mullins was criticized for eroding judicial independence.

Passalacqua's spokeswoman, Diana Gomez, said the office does not blanket file. She said judges who are routinely reversed on appeal can sometimes draw a disqualification. Personality conflicts and perceptions that a judge is soft on crime are not good reasons to paper, she said.

"There are some judges we may not want to send complicated gang cases to because they have had rulings that were adverse to the people," Gomez said. "We may be reluctant to go in front of judge who has been reversed on more than one of those cases."

Public Defender John Abrahams said the challenges can reflect anything from a judge's perceived lack of experience in an area of law to the belief that they treat certain cases differently. For example, if a judge is known to hand down tough sentences in drunken driving cases, a defense attorney might ask for a different judge, he said.

"It's usually not personal," Abrahams said. "It's just, &‘is this judge going to be less favorable than some other judge for my case?'"

Many lawyers were reluctant to publicly criticize judges, but a common refrain is that judges with a reputation for being unpredictable and inconsistent are most often papered.

Attorneys also conceded the practice of "forum shopping," in which a lawyer tries to end up with a judge they believe would be more favorable to their client's case.

The notion that judges could be anything but impartial can be a sore subject for jurists and one that is spoken of little outside chambers.

Medvigy, who was disqualified a total of 30 times from Jan. 1 to Nov. 1, said he was surprised to learn his annual numbers. The motions are often filed outside his court and the cases are re-assigned without his knowledge.

"I try to call them like I see them," Medvigy said. "You're not going to be able to please everybody."

He said peremptory challenges tend to be overused, especially since a separate mechanism exists to remove judges for cause, such as a personal conflict. Any wrongdoing, like bribery, is investigated by the California Commission on Judicial Performance, he said.

Elimination of the challenges by the state Legislature would save time and money, he said.

"Why do they exist when we have all these other protections in place?" Medvigy said. "Whether they are being used for legitimate purposes, I don't know."

But lawyers countered that peremptory challenges are an important tool that shouldn't be tampered with.

Keene, a former public defender who began practicing law more than 40 years ago, said without cause disqualifications are less controversial than a formal recusal or misconduct investigation. They provide a "safety valve" to ensure fairness, he said.

The only harm is to the egos of judges thought to be on the margins, Keene said.

"You're stepping on their toes, but it doesn't subject them to disgrace," Keene said. "It's something that's absolutely needed."

Barry McBride, a former Sonoma County prosecutor who now handles defense cases, said peremptory disqualifications ensure individual perceptions will be honored.

"Life is a matter of perception and that applies to the court system as well," McBride said.

But longtime defense attorney Joe Stogner said some of those perceptions may be wrong. Judges can earn reputations that are not always justified, he said.

"A lot of disqualifications are based on faulty assumptions," Stogner said.

Come January, as many as five new judges will join the bench. At least one, Jamie Thistlethwaite, is a career criminal defense attorney and another, Pat Broderick, is a law school dean. The governor is expected to fill two other seats before he leaves office.

The fifth spot is going to a Nancy Shaffer, a former commissioner without a significant felony track record.

Already, observers are speculating if any of the newcomers will show judicial leanings. If they develop anything other than a reputation of fairness, they'll do it in the first year, Keene said.

"It doesn't take long for a picture to emerge," Keene said.

News Researcher Janet Balicki contributed to this report. You can reach Staff Writer Paul Payne at 568-5312 or paul.payne@pressdemocrat.com.

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