Chastised DA’s Office Can Boot Judge off Cases

     SANTA ANA (CN) — The Orange County District Attorney’s office can boot a respected judge off dozens of murder cases, even though its prosecutors’ “extraordinary abuse” of the disqualification procedure created “a barrier to justice,” a clearly conflicted appellate court has ruled.
     The dispute centers on Orange County’s Superior Court Judge Thomas M. Goethals, who brought to light the district attorney’s office’s years-long improper use of jailhouse informants. The scandal produced national headlines and sparked investigations by the state attorney general and a special blue-ribbon committee formed by District Attorney Anthony J. Rackauckas Jr. himself.
     Under California law, any litigant in a civil or criminal case can “paper,” or file a peremptory challenge against, a judge without providing reasons or evidence. “Blanket papering,” in which prosecutors or defense attorneys reject a judge wholesale, is uncommon but hardly unknown.
     “There’ve been many, many times when judges have been blanket papered” by prosecutors or the defense bar, Orange County criminal lawyer Marlon Stapleton said in an interview.
     He added that usually judges are targeted for poor temperaments or patterns of incorrect legal rulings, rather than controversial decisions.
     For example, although Santa Clara Superior Court Judge Aaron Persky faces a potential recall for giving a six-month jail sentence to a Stanford University athlete convicted of sexual assault, prosecutors have only kicked him off one or two similar cases, according to Deputy Public Defender Sajid Khan, who organized a petition drive in Persky’s defense.
     On the other hand, Khan said in an interview that he knows of at least two Santa Clara judges who were papered so often by prosecutors that the court had to reassign them.
     In the present controversy, prosecutors’ steady barrage of motions to disqualify Goethals began soon after he removed a top prosecutor from two gang-related homicides and just before he kicked the entire office off a very high-profile mass murder trial.
     In the three-plus years preceding those events, Goethals was assigned 35 murder cases and rejected by deputy district attorneys just once, according to the California Court of Appeals. But in the 18 months after, he was sent 49 murder cases to hear, only to be disqualified by prosecutors from all but three.
     Goethals is one of five Orange County judges who hear “long cause” criminal cases, such as gang-related murders, in which trials last several weeks rather than a few days. The DA office’s apparent refusal to let him hear cases “substantially disrupted the orderly administration of criminal justice” in the county, Judge Richard M. King, the superior court’s supervising criminal judge, said in his ruling on the issue last December.
     King denied prosecutors’ motions to disqualify Goethals from several cases — even though the motions are virtually automatic under state law.
     King found that prosecutors’ blanket papering of one of the few long-cause judges had put the county’s criminal courts “in a crisis.” Goethals could be reassigned and replaced, King said, but it would be “offensive” to let litigants manipulate judicial staffing and “would be a concession against judicial independence.”
     Rackauckas has insisted all along that there never was an office policy to paper Goethals. “Any exercise of peremptory challenge made by any [deputy district attorney] has been the individual prosecutor’s challenge to do what is in the best interest of the People, public safety and crime victims,” he said in a statement released in response to Monday’s appellate decision.
     After King’s ruling, Rackauckas took the dispute to the local appellate court, which reversed King in a two-to-one decision. The majority cited a 1979 California Supreme Court opinion that permitted blanket papering as “a reasonable—and hence valid—accommodation of the competing interests of bench, bar, and public on the subject of judicial disqualification.”
     California Court of Appeals Presiding Justice Kathleen E. O’Leary, joined by Justice Richard M. Aronson, held the court had to follow the Supreme Court’s ruling, even though she “question[ed] the wisdom of [it] in light of the complexities of modern court administration.”
     In her 36-page opinion, O’Leary urged the Supreme Court “to revisit the issue of blanket papering to determine whether the impact of an abusive use of [the procedure], such as demonstrated in this record, can be viewed as inconsequential on a trial court in the performance of its duty to administer justice.”
     One member of the appellate panel disagreed with the majority. “The district attorney’s systematic abuse of [the disqualification statute] undermined the principle of judicial independence and violated the separation of powers doctrine,” Justice David A. Thompson wrote in his 12-page dissent. “We are not powerless to stop it.”
     UC Irvine School of Law Dean Erwin Chemerinsky, who represented King and the Superior Court in the appeal, declined to comment on the decision.
     Assistant Public Defender David Dworakowski, who represented the individual defendants involved, said in an interview that he is considering asking the state’s Supreme Court to review the ruling.
     But defense attorney Stapleton hopes the Supreme Court leaves the issue alone. “It’s a really dangerous road to go down … to say we don’t have peremptory challenges anymore,” he said.
     Meanwhile, Goethals is still being papered, according to Dworakowski — but Stapleton said it is happening far less often.

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