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State’s Trial Judges Dodge ‘Paper’ Bullets : Law Gives District Attorneys Veto Power Over Jurists in Criminal Cases

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Times Staff Writer

In the bulging arsenal of maneuvers, motions and writs that prosecutors can fire at California’s trial judges, there is an ultimate weapon.

In its simplest form, it is known as an affidavit of prejudice--a peremptory challenge that either the defense or prosecution can use once in any case to disqualify a judge without having to cite a reason.

But there is a deadlier and more controversial version of the device, which, critics say, is available only to district attorneys.

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In much the same way that criminals convert a semiautomatic rifle into a more lethal machine gun, prosecutors on occasion modify the affidavit procedure and use it to literally run a judge out of the courthouse.

In courthouse slang, the practice is known as “papering” a jurist. It is accomplished by filing an affidavit on every case that comes into a judge’s court.

“The district attorney’s office has veto power over any judge that they do not want to sit and hear criminal cases, and I think that’s unfair,” said Gerald L. Chaleff, a prominent defense attorney whose clients have included convicted Hillside Strangler Angelo Buono.

Widely used in many states, the right to a peremptory challenge of judges was bestowed on California attorneys by the Legislature in the late 1950s.

“Lawyers should be able to do that,” Chaleff said, to help ensure that a judge who has a problem with a particular lawyer or defendant does not sit on a specific case. Abuses occur, defense lawyers said, when district attorneys, out of pique or anger over a judge’s rulings, file affidavits to prevent a judge from hearing any criminal cases.

Extreme Sensitivity

A recent incident involving Los Angeles Superior Court Judge David A. Workman--one of three judges “papered” by Los Angeles County prosecutors in the last year--suggests the judiciary’s extreme sensitivity to the practice.

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A deputy district attorney who had repeatedly filed affidavits against Workman was quoted last month in The Times as saying that she had agreed to transfer a case to another court because neither she nor the defense attorney wanted Workman to handle the matter.

The quote apparently irked the presiding judge of the Los Angeles Superior Court, Thomas T. Johnson, who in an unusual move fired off a letter to Dist. Atty. Ira Reiner suggesting that the deputy’s remarks had been grossly out of line.

In a conciliatory gesture, Reiner’s office sent a reply that, in effect, apologized for the deputy’s comments.

Neither Johnson nor Reiner’s office would comment on the exchange of letters.

But the presiding judge did agree to discuss the practice of filing so-called blanket affidavits of prejudice--or “papering.”

“It’s my opinion . . . that the affidavit is a much-abused device, whether we’re talking about civil or criminal (cases),” Johnson said.

“I think most of the time that the affidavit of prejudice is used, it has no real relationship to the judge or judges involved. It just means that for some reason that lawyer doesn’t want to go to trial at given time or place,” he added.

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“It’s a sort of tyranny by petty tyrants,” said Leslie H. Abramson, a Los Angeles defense lawyer frequently involved in death-penalty cases.

“Only the district attorney prosecutes all (felony) cases and (only) he can put a judge out of business,” said another judge, who spoke on condition that he not be identified. “I think that threatens the independence of the bench.”

In practice, defense lawyers do not have the same power to sideline a judge because no single law office represents all criminal defendants. In Los Angeles County, for example, the largest single defense office, that of the public defender, represents about 65% of the criminal defendants who appear in Superior Court.

Two Possibilities

Once the district attorney’s office has decided to file a blanket affidavit, a judge’s superiors usually take one of two steps--either they assign him only civil cases, or, if the judge is sitting in a courthouse that handles criminal matters exclusively, they arrange a transfer.

Prosecutors can--and do--use the practice as a threat, one judge said, in an subtle or not-so-subtle attempt to elicit favorable rulings from other jurists.

“They do go around the building and say, ‘If some other judge doesn’t fall in line, we’re going to do the same to him.’ And judges respond to that,” the judge said.

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Gilbert I. Garcetti, Los Angeles County’s chief deputy district attorney, disagreed.

The blanket affidavit is used rarely, Garcetti said, and only in those cases where the district attorney’s office is convinced that a particular judge is unable or unwilling to give a fair hearing to the prosecutor--or the defendant.

Question of Fairness

“There are going to be instances where we have individual deputies who do not feel that a judge has been particularly fair to one side; that’s always going to happen,” Garcetti said.

“But we’re not looking at one, two, three incidents. . . . We’re looking for those situations where it simply is intolerable in terms of the cases that are being heard by the judge.”

Another Superior Court judge, who also requested anonymity, supported Garcetti’s position.

“Sometimes you are up against a judge who simply won’t listen,” the judge said. “I don’t know of any instance in which the district attorney has filed a (blanket) affidavit against a judge for no reason.”

Other prosecutors complained that it is virtually impossible to disqualify a judge under another section of the California Code of Civil Procedure that requires a showing of cause. The law provides that such challenges for cause are decided by a judge from another county. Judges sitting in that capacity are often loath to cite fellow jurists for prejudice, prosecutors say.

Some Risks Involved

Taking the extreme step of papering a judge is not without its risks, Garcetti said.

“It doesn’t give us control. . . . To an extent, we’re prejudicing our case when we do that. (The case) could go to another judge who perhaps also has been affidavited in the past by the district attorney’s office and maybe that judge is a little bent out of shape about it.”

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Because either side can only file one affidavit in each case without proving prejudice, the prosecutor could be saddled with a judge less acceptable than the first.

Furthermore, Garcetti said, defense attorneys can be equally effective in sidelining judges with whose fairness they take issue.

However, attorneys interviewed by The Times said they could not recall an instance in which a judge was transferred out of a courthouse as the result of defense affidavits.

“I have always been against blanket affidaviting. We’re not interested in that kind of thing,” said Stuart R. Rappaport, a senior official in the Los Angeles County public defender’s office.

Not Office Policy

While individual public defenders have the authority to challenge judges on specific cases, the office does not as a matter of policy impose blanket affidavits, he added.

“There’s usually a personal snit of some sort,” Rappaport said, “and then someone decides in the D.A.’s office that they’re going to back up” the prosecutor involved in the dispute with the judge.

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In Workman’s case, the trouble began soon after the 55-year old judge was transferred last June to the Criminal Courts Building in downtown Los Angeles, after sitting in the Compton courthouse for more than two years. Before that, Workman, a former deputy city attorney, had served as a judge on the Los Angeles Municipal Court.

The incident that spawned the feud began when Deputy Dist. Atty. Lucienne A. Coleman, the prosecutor assigned to Workman’s court, came to the judge with a plea bargain negotiated with an admitted child molester named Samuel Rodriquez.

Agreed to Sentence

Under the terms of the deal, Rodriquez was to plead guilty to six of 15 molestation charges and had agreed to serve a sentence of eight years in prison.

According to several accounts, Workman told Coleman that he, as a matter of law, had the right to impose a lesser sentence, even though the prosecution had promised to dismiss nine of the counts in exchange for the defendant’s agreement to the eight-year sentence.

The assertion outraged not only Coleman, but some of her superiors.

The agreed-upon sentence ultimately was imposed by another judge.

Relations with the district attorney’s office further deteriorated over the summer.

One deputy complained to superiors when Workman failed to formally order a subpoenaed witness in a triple murder case to return to court, even though the witness had made inadmissible statements that indicated that he had been involved in two of the three killings.

Practice Questioned

Another deputy questioned the judge’s practice of allowing jurors to question witnesses in criminal cases. Still another complained when Workman dismissed a case against a county jail inmate who had assaulted a deputy sheriff, breaking his nose. Workman made the ruling because the defendant, who was representing himself, had been denied permission to use the county jail law library.

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Finally, in early October, Garcetti made the decision to file an affidavit of prejudice in every case assigned to Workman’s court.

When the judge returned from a vacation early last month, he had been reassigned to the Compton courthouse. Beginning in January, Workman will move to the Burbank courthouse, which handles civil cases exclusively.

Neither Workman nor Garcetti would discuss the events surrounding Workman’s departure from the Criminal Courts Building.

Deputy Dist. Atty. Jeffrey C. Jonas, Coleman’s supervisor, told The Times that Garcetti has ordered him not to talk about the incident, despite the district attorney’s general policy of allowing deputies to discuss their cases with reporters.

Judges Transferred

Workman joined two other judges who were transferred in the past year after the district attorney’s office began filing peremptory challenges in every case that came before them.

G. Keith Wisot, described by defense attorneys and some prosecutors as a fair-minded, intelligent jurist, was moved from the Pasadena Superior Court to Van Nuys. According to the account of a supporter of the judge, Wisot was papered after he began ordering police officers to show up in court first thing in the morning, rather than remain “on call,” as had been the practice.

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In another case, Melvin B. Grover ran afoul of Van Nuys prosecutors last fall and was shipped to Pasadena, where he has been hearing civil cases. Among other things, prosecutors complained when Grover dismissed a manslaughter charge against a woman who had admitted killing her boyfriend but claimed she had acted in self-defense.

Ruled Constitutional

In a 1977 decision, the California Supreme Court upheld the constitutionality of the 1957 statute that gave civil attorneys the right to file an affidavit of prejudice without showing cause, and a 1959 amendment that expanded that practice to include criminal cases.

But the high court suggested that it considered the filing of blanket affidavits an abuse of the law, although it did not outlaw the practice.

“There is thus no doubt that in (an earlier ruling) we strongly disapproved of the practice of ‘blanket challenges,’ and we reaffirm that position herein,” Justice Stanley Mosk wrote in the case of Solberg vs. Superior Court.

In a dissent, Acting Chief Justice Mathew O. Tobriner went further:

“In my view, the use of ‘blanket’ challenges . . . to disqualify a judge because of his judicial philosophy or his prior rulings on questions of law seriously undermines the principle of judicial independence and distorts the appearance, if not the reality, of judicial impartiality,” Tobriner wrote.

Steps Can Be Taken

Judges are not powerless to combat the practice, several defense attorneys said.

Judge Grover, for example, challenged many of the affidavits of prejudice that were filed against him, although he was unable to stave off a transfer.

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“In recent years, the presiding judges have been very weak and have been allowing the district attorney’s office to push them around,” said Deputy Public Defender Rappaport.

“The courts have to defend themselves.”

Defense attorney Abramson suggested that the presiding judge should not automatically reassign trial judges who have been the target of blanket affidavits.

That would put pressure on the district attorney’s office, because it would become more difficult to bring accused criminals to trial within the time limits imposed by law.

“When you run out of courts to try criminal cases in, you run out of time,” Abramson said. “When you run out of time, the cases (by law) get dismissed.”

Johnson, the presiding judge, replied: “In the past, there . . . have occurred situations where the administration did not accommodate a blanket affidavit. Whoever is trying to manage the court has to evaluate each situation as it develops. . . .

“You could see how it could become a confrontational situation . . , which is not something you would go into without a lot of thought.”

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Still, Abramson said, “If the prosecution had to bear some consequences for doing this, they might stop.”

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