NY Times
Dolores Carr, the Santa Clara County district attorney, has led a boycott of a judge who she thinks has not treated her office fairly.
Every Wednesday, prosecutors in Santa Clara County take part in a weekly ritual: as the new judges’ calendar goes online, they begin signing affidavit after affidavit to block cases from going before Judge Andrea Bryan.
Since January, more than 100 cases originally assigned to Judge Bryan have been transferred to other judges in the San Jose courthouse at the request of the district attorney’s office.
The district attorney, Dolores Carr, explained: “Our aim is to have our cases heard by a judge who will give us a fair shake.”
While there had been earlier friction between Judge Bryan and Ms. Carr, the catalyst for the boycott came in January when Judge Bryan freed a convicted child molester. She ruled that a deputy district attorney on the case had lied about evidence and committed other “outrageous” acts of misconduct.
In practice, a request for a judge to recuse herself is rare; it is almost never approached with the kind of single-minded ferocity seen in San Jose. There the effort has complicated the daily routine of administering justice and raised concerns that the prosecutor is exercising undue influence to sway judicial decisions.
“If this is taken to its logical conclusion, you are talking about criminal defendants’ appearing before the judge chosen by the D.A,” said James Sample, a professor at the Hofstra Law School and the co-author of a 2008 report on recusal reform from New York University’s School of Law. “It’s turning the scalpel of recusal into a chain saw to undermine judicial independence.”
A California law, mirrored in 18 states, gives parties a one-time right to insist that a judge recuse herself. The legal term is “peremptory challenge.” Colloquially, it is called “papering.”
The challenges have stirred up judges in all corners of this courthouse, where personal histories and professional relationships have been intertwined for decades. Judge Bryan has been a prosecutor. Ms. Carr has been a judge. Many of the judges, prosecutors and public defenders have dealt with one another repeatedly over the years. Many face re-election periodically.
Among legal scholars, the papering of a judge by ongoing players, whether a district attorney or a public defender, is frowned on. The judiciary typically handles the assignment of cases as it sees fit, and interference can appear to challenge judges’ independence. A boycott of one judge can be viewed as a warning to all.
One judge felt so moved by the situation that he spoke from the bench about Judge Bryan. “I look to my colleague, who is now a subject of much public debate and in some quarters ridicule, and wonder whether or not I would have the courage to do what I thought was right,” Judge Eugene Hyman said last month as he made a ruling exonerating a man charged with murder.
In the squat buildings in Santa Clara County’s civic center, the events have polarized what was already an adversarial process.
For Ms. Carr, who is facing re-election in June, the fundamental issue may revolve around two people: Augustine Uribe, the convicted molester, and Troy Benson, her deputy, whom Judge Bryan accused of deceit.
In 2006, Mr. Uribe was convicted of molesting his granddaughter and was sentenced to 38 years to life in prison. When video evidence of the girl’s medical examination emerged afterward — evidence that, the defense said, cast doubt on the conviction — Judge Bryan made her ruling.
Mr. Uribe’s defense lawyer had argued that Mr. Uribe should not face retrial because his rights had been violated and asserted that Mr. Benson had lied and withheld information about the videotapes.
In January, Judge Bryan agreed. She wrote in her opinion: “Mr. Benson’s numerous acts of misconduct, culminating with his false testimony in this proceeding, strikes at the foundation of our legal system and is so grossly shocking and outrageous that it offends the universal sense of justice to allow prosecution in this matter to proceed.”
Mr. Benson faces an investigation by the state bar association that could lead to his suspension or disbarment. Mr. Uribe has been set free, although he may face retrial. Mr. Benson did not respond to requests for an interview. Judge Bryan declined to comment.
In an interview, Ms. Carr said that her office had previous concerns about some of Judge Bryan’s rulings, which she declined to detail. The Uribe decision was “the straw that broke the camel’s back,” she said.
After the ruling, Ms. Carr met with the court’s presiding judge, Jamie A. Jacobs-May, to lobby for Judge Bryan’s reassignment. Nothing changed and the papering campaign began.
A 1957 state law gives any party involved in a case one chance to challenge a judicial assignment without giving a reason. It was upheld by the State Supreme Court in 1977, although the justices expressed “disapproval” of blanket challenges. In San Jose at least, the affidavits to bar a judge from hearing a case go directly to the judge in question, who is not permitted to ask the reason for the request.
The weekly ritual of papering by the district attorney’s office has its mirror image in the office of Judge Philip Pennypacker, the supervising judge in the criminal division. His ritual involves keeping Judge Bryan busy with a few criminal cases that are exempt from the boycott.
“We’re trying our best to deal with the roadblock thrown in our way,” Judge Pennypacker said.
Ms. Carr is not alone in challenging a judge. Judges in San Diego County have reported that District Attorney Bonnie Dumanis papered them. A former judge, Ms. Dumanis said the challenges were not personal and were analogous to being called for jury duty and not being picked.
While individual lawyers in Santa Clara County have asked judges to recuse themselves, the sheer number of challenges against Judge Bryan is believed to be unprecedented.
In 2000, lawyers in the public defender’s office papered Judge Joyce Allegro, who had sat on a board of a victims advocacy group, to prevent her from hearing cases involving domestic violence. Judge Allegro was reassigned. Ms. Carr said there was little outrage then, although few knew about the papering until The San Jose Mercury News disclosed it several years later.
Mary Greenwood, the county’s public defender, said there was a fundamental difference between challenges from the public defender and those from the prosecution. In criminal cases, the prosecuting attorneys bring the judges their business.
“The use of this tool can effectively force a judge out of the criminal division,” she said. “No other institution or individual has the power to do that. It creates an imbalance of power in the criminal justice system.”
Alfonso Lopez, who was Mr. Uribe’s defense lawyer, said the fallout from Judge Bryan’s ruling had surprised him. “Now I understand why judges are afraid,” Mr. Lopez said. “It makes me think we are in a dictatorship.”
The challenges have become an issue in Ms. Carr’s re-election campaign. In a debate, her opponent, Jeff Rosen, a deputy district attorney in her office, called the papering “un-American.”
The decision, Mr. Rosen said, “does nothing for child molestation victims, nothing for Mr. Benson and nothing for my prosecutor colleagues’ going forward as we appear before an appropriately offended judiciary.”
He added that he would refrain from such actions.
Ms. Carr said she did not expect her challenge to Judge Bryan to influence judges’ decisions.
“I have more faith in my colleagues on the bench to continue making decisions they think are right,” she said. “To imply that judges on our court may be somehow frightened doesn’t give them enough credit.”
Among the judges, keeping Judge Bryan involves complicated logistics. Reassigning her other judges’ criminal cases has led to more roadblocks. Recently, she has been hearing a child molestation case, which was exempt from a peremptory challenge because she has heard an aspect of the case before.
Once the jury is selected, the trial is expected to last three weeks. It is unclear if other major cases will be available to her.
Since January, more than 100 cases originally assigned to Judge Bryan have been transferred to other judges in the San Jose courthouse at the request of the district attorney’s office.
The district attorney, Dolores Carr, explained: “Our aim is to have our cases heard by a judge who will give us a fair shake.”
While there had been earlier friction between Judge Bryan and Ms. Carr, the catalyst for the boycott came in January when Judge Bryan freed a convicted child molester. She ruled that a deputy district attorney on the case had lied about evidence and committed other “outrageous” acts of misconduct.
In practice, a request for a judge to recuse herself is rare; it is almost never approached with the kind of single-minded ferocity seen in San Jose. There the effort has complicated the daily routine of administering justice and raised concerns that the prosecutor is exercising undue influence to sway judicial decisions.
“If this is taken to its logical conclusion, you are talking about criminal defendants’ appearing before the judge chosen by the D.A,” said James Sample, a professor at the Hofstra Law School and the co-author of a 2008 report on recusal reform from New York University’s School of Law. “It’s turning the scalpel of recusal into a chain saw to undermine judicial independence.”
A California law, mirrored in 18 states, gives parties a one-time right to insist that a judge recuse herself. The legal term is “peremptory challenge.” Colloquially, it is called “papering.”
The challenges have stirred up judges in all corners of this courthouse, where personal histories and professional relationships have been intertwined for decades. Judge Bryan has been a prosecutor. Ms. Carr has been a judge. Many of the judges, prosecutors and public defenders have dealt with one another repeatedly over the years. Many face re-election periodically.
Among legal scholars, the papering of a judge by ongoing players, whether a district attorney or a public defender, is frowned on. The judiciary typically handles the assignment of cases as it sees fit, and interference can appear to challenge judges’ independence. A boycott of one judge can be viewed as a warning to all.
One judge felt so moved by the situation that he spoke from the bench about Judge Bryan. “I look to my colleague, who is now a subject of much public debate and in some quarters ridicule, and wonder whether or not I would have the courage to do what I thought was right,” Judge Eugene Hyman said last month as he made a ruling exonerating a man charged with murder.
In the squat buildings in Santa Clara County’s civic center, the events have polarized what was already an adversarial process.
For Ms. Carr, who is facing re-election in June, the fundamental issue may revolve around two people: Augustine Uribe, the convicted molester, and Troy Benson, her deputy, whom Judge Bryan accused of deceit.
In 2006, Mr. Uribe was convicted of molesting his granddaughter and was sentenced to 38 years to life in prison. When video evidence of the girl’s medical examination emerged afterward — evidence that, the defense said, cast doubt on the conviction — Judge Bryan made her ruling.
Mr. Uribe’s defense lawyer had argued that Mr. Uribe should not face retrial because his rights had been violated and asserted that Mr. Benson had lied and withheld information about the videotapes.
In January, Judge Bryan agreed. She wrote in her opinion: “Mr. Benson’s numerous acts of misconduct, culminating with his false testimony in this proceeding, strikes at the foundation of our legal system and is so grossly shocking and outrageous that it offends the universal sense of justice to allow prosecution in this matter to proceed.”
Mr. Benson faces an investigation by the state bar association that could lead to his suspension or disbarment. Mr. Uribe has been set free, although he may face retrial. Mr. Benson did not respond to requests for an interview. Judge Bryan declined to comment.
In an interview, Ms. Carr said that her office had previous concerns about some of Judge Bryan’s rulings, which she declined to detail. The Uribe decision was “the straw that broke the camel’s back,” she said.
After the ruling, Ms. Carr met with the court’s presiding judge, Jamie A. Jacobs-May, to lobby for Judge Bryan’s reassignment. Nothing changed and the papering campaign began.
A 1957 state law gives any party involved in a case one chance to challenge a judicial assignment without giving a reason. It was upheld by the State Supreme Court in 1977, although the justices expressed “disapproval” of blanket challenges. In San Jose at least, the affidavits to bar a judge from hearing a case go directly to the judge in question, who is not permitted to ask the reason for the request.
The weekly ritual of papering by the district attorney’s office has its mirror image in the office of Judge Philip Pennypacker, the supervising judge in the criminal division. His ritual involves keeping Judge Bryan busy with a few criminal cases that are exempt from the boycott.
“We’re trying our best to deal with the roadblock thrown in our way,” Judge Pennypacker said.
Ms. Carr is not alone in challenging a judge. Judges in San Diego County have reported that District Attorney Bonnie Dumanis papered them. A former judge, Ms. Dumanis said the challenges were not personal and were analogous to being called for jury duty and not being picked.
While individual lawyers in Santa Clara County have asked judges to recuse themselves, the sheer number of challenges against Judge Bryan is believed to be unprecedented.
In 2000, lawyers in the public defender’s office papered Judge Joyce Allegro, who had sat on a board of a victims advocacy group, to prevent her from hearing cases involving domestic violence. Judge Allegro was reassigned. Ms. Carr said there was little outrage then, although few knew about the papering until The San Jose Mercury News disclosed it several years later.
Mary Greenwood, the county’s public defender, said there was a fundamental difference between challenges from the public defender and those from the prosecution. In criminal cases, the prosecuting attorneys bring the judges their business.
“The use of this tool can effectively force a judge out of the criminal division,” she said. “No other institution or individual has the power to do that. It creates an imbalance of power in the criminal justice system.”
Alfonso Lopez, who was Mr. Uribe’s defense lawyer, said the fallout from Judge Bryan’s ruling had surprised him. “Now I understand why judges are afraid,” Mr. Lopez said. “It makes me think we are in a dictatorship.”
The challenges have become an issue in Ms. Carr’s re-election campaign. In a debate, her opponent, Jeff Rosen, a deputy district attorney in her office, called the papering “un-American.”
The decision, Mr. Rosen said, “does nothing for child molestation victims, nothing for Mr. Benson and nothing for my prosecutor colleagues’ going forward as we appear before an appropriately offended judiciary.”
He added that he would refrain from such actions.
Ms. Carr said she did not expect her challenge to Judge Bryan to influence judges’ decisions.
“I have more faith in my colleagues on the bench to continue making decisions they think are right,” she said. “To imply that judges on our court may be somehow frightened doesn’t give them enough credit.”
Among the judges, keeping Judge Bryan involves complicated logistics. Reassigning her other judges’ criminal cases has led to more roadblocks. Recently, she has been hearing a child molestation case, which was exempt from a peremptory challenge because she has heard an aspect of the case before.
Once the jury is selected, the trial is expected to last three weeks. It is unclear if other major cases will be available to her.
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