a public defender

You want bread? Three dollars!

Eeny, meeny, miny, moe, goes the counting rhyme, the primary use of which is to select someone random to be “it” in a game. As anyone who’s ever used this rhyme knows, it’s rather easy to manipulate the rhyme (or where you start it) to “randomly” select a predetermined person.

The prosecutor’s office in San Diego is rather more blatant about its singling out of a judge to be “it”:

San Diego Superior Court Judge John Einhorn, who has presided over many high-profile cases, [...] is under a boycott from the District Attorney’s Office.

For about two months, Einhorn has been under a “blanket challenge” by the prosecutor’s office. That means any time a case is assigned for trial to Einhorn, prosecutors use a legal tactic called a peremptory challenge to block the case from going to the judge.

If this happened in Texas, I’d shrug it off as another installment of “It only happens in Texas”, but this is California, the land of the free and the home of the Governator.  Maybe some of our California brethren can inform us what this “peremptory challenge” is. Is it a device of state law or just state procedural rules? Regardless, the fact that the prosecutor’s office has employed this tactic against a solitary judge for two months straight should raise some eyebrows and concerns about their motivation and their role, aka “justice”. When asked for comment, this is all the prosecutor’s office could muster:

“This decision was made after careful consideration and thoughtful review over an extended period of time,” she said. “It is a judgment call made in the best interests of our clients, the People of the State of California, and the cases we are prosecuting.”

Normally, one would replace those sentences with something like this: “This decision was made after some anecdotal evidence that this Judge doesn’t accede to our every demand and seems to have some sympathy for criminals who rape and murder your children and those illegals who cross over the border to steal our jobs. Thus, since he has respect for the Constitution and there is no place for such liberal namby-pambying in the criminal justice system, which means we can’t bully our way into raising our conviction numbers which is all we really care about, we’re going to throw a hissy fit and say to him: NO SOUP FOR YOU!”

Okay, maybe not that last bit. But here, there seems to be no reason for the prosecutor’s office to be disenchanted with Judge Einhorn:

Over the past year, Einhorn has been at the center of two of the higher profile cases in San Diego. Sommer was convicted of murdering her husband, Todd, in 2007 by poisoning him with arsenic. She was granted a new trial in November of that year. Then in April 2008, new evidence was discovered — tissue samples of Todd Sommer that showed no traces of arsenic — and that led to prosecutors dismissing the case.

The retrial had been assigned to Einhorn. Allen Bloom, Sommer’s lawyer, pressed for the case to be dismissed in a way that would preclude prosecutors from ever charging Sommer again.

That turned into a pissing match between the State and the judge (the state accusing him of a lack of jurisdiction), but he eventually ruled in favor of the State. In another case, he interpreted a statute in a way the state disagreed. Unless the judges of San Diego are really prosecutors-not-in-disguise, this sort of stuff happens every day. So, what then, caused them to hate him so? No one knows, except the prosecutor’s office, which isn’t talking. The Judge himself doesn’t know.

It’s only natural, however, when prosecutors make decisions in a clandestine manner that seem contrary to the administration of justice, to ascribe nefarious motivations to such actions. Perhaps we will be proven wrong at some point down the line, but now, as it stands, it seems they do not like this judge and are using some procedural mechanism to prevent him presiding over any cases.

Not only is this extremely inefficient (one judge sitting idle in these days of tremendous workload?), but is also casts an ugly shadow on the rest of the courthouse. In our criminal justice system, a judge is supposed to be an impartial presence: someone who ensures that a trial proceeds smoothly and makes rulings of law. The nuts and bolts of the criminal case – the facts – are left to the parties. Is it fair to draw an inference that the prosecutor’s office expects judges only to side with them and a judge who shows a hint of independence is thus an obstacle to the administration of “justice”? Are the other judges in San Diego merely lemmings who follow the prosecutor’s office with nary an independent thought? It would certainly seem that way.

Now, I’m not saying that “judge shopping” doesn’t occur. It does, but in more subtle and less ugly ways. You have a complex legal issue? You might want to try and get it before an eminent jurist. You have an uppity prosecutor? You might want to try and have the trial before a no-nonsense judge. These, usually, are not done to subvert the administration of justice, but rather to ensure the smooth and fair administration of the process of the trial.

To completely block one judge from sitting on any cases whatsoever for some undisclosed reason smacks of subterfuge and arrogance.

As a criminal defense lawyer, would I want to have a trial before a pro-defense judge (if there is such a beast)? Absolutely. Do I think that fact by itself would make a difference in the outcome of the case? Probably not. It might net me a favorable jury instruction or a helpful ruling on some questionable evidence, but the facts are the facts. And this is the key distinction: It is not my job to ensure the administration of justice or the appearance of a fair system. I have no obligation other than that to my clients. The prosecutor’s office, on the other hand (as appropriately stated in the press release quote above) represents “the people” as a whole and is obliged to not only prosecute crime, but to provide a fair and just system, which includes the appearance of propriety. [For a lengthy discussion of "justice" vis-a-vis the role of the defense lawyer, see the discussion that's been making the rounds of the blogosphere here, complete with links to all the posts.]

And, since the title of this posts teases it, here’s the Soup Nazi:

[youtube]http://www.youtube.com/watch?v=M2lfZg-apSA[/youtube]