Judge Faces Second Challenge : Already Under Fire, His Fairness Is Now Questioned

A Superior Court judge--already under heavy attack by defense lawyers who question his fairness and temperament--now is facing the second formal challenge in a month to his ability to be impartial in trial.

The latest salvo fired at San Diego County Superior Court Judge Jack Levitt came Thursday, when defense lawyer Charles Khoury Jr. asked that Levitt step aside from presiding in a competency hearing for accused murderer Billy Ray Waldon.

Khoury charged that a series of courtroom confrontations between Levitt and the defense bar--dating back to a 1974 case in which Levitt held Khoury in contempt and ordered him jailed for making improper statements during a closing argument--demonstrated that Levitt “may well be vindictive” and “has difficulty being impartial towards certain attorneys.”

So-called “challenges for cause” against judges are extremely rare, according to court officials. Area defense lawyers can recall only a handful in the last decade. But the complaint against Levitt comes just three weeks after Presiding Superior Court Judge Thomas G. Duffy upheld a similar challenge raised by another defense lawyer.

In that instance, Assistant Public Defender Mark Wolf alleged that Levitt had exhibited a bias against him--and as a result imposed a needlessly harsh sentence on Wolf’s client--in a 1986 rape case during which Levitt held Wolf in contempt for missing a hearing.

Denied Prejudice

Levitt, in a written response to the challenge, denied harboring any prejudice against Wolf and insisted his sentencing of the convicted rapist was proper. He noted that Wolf did not appeal the contempt finding and that the state Department of Corrections had not questioned the legality of the sentence he gave the rapist.

But Duffy ruled May 29 that Wolf “might reasonably entertain a doubt that the judge would be able to be impartial toward him,” and ordered the trial of another of Wolf’s clients moved to a different court.

During a brief hearing Thursday, Levitt said he also would contest Khoury’s charge that he could not fairly preside in the Waldon hearing.

Under court procedures, the defense and prosecution lawyers in the Waldon case will have five days after Levitt responds to select another judge to hear the challenge. If they are unable to agree on one, the state Judicial Council, headed by Chief Justice Malcolm Lucas, will assign a judge to hear the matter.

Levitt, a Superior Court judge since 1972, has often been at loggerheads with criminal defense lawyers and sometimes has drawn slaps from appellate courts for his conduct during the confrontations. But recently, the conflict has reached a crescendo.

Allen Bloom, a defense lawyer twice held in contempt last by Levitt because Bloom insisted on questioning potential jurors about a topic the judge ruled irrelevant, has vowed to ask the state Commission on Judicial Performance to remove Levitt from office. Bloom contends that Levitt’s acknowledged fastidiousness about court rules and procedures has blinded the judge to basic principles of fairness and justice--a contention Levitt categorically rejects.

Outside Jurisdiction

The Criminal Defense Bar Assn. several weeks ago asked the commission to rebuke Levitt for posting cartoons outside his courtroom that its members considered offensive. The commission responded that the complaint was outside the scope of its jurisdiction, according to association President Judy Clarke.

A study commissioned by Bloom found that in the year ending March 31, lawyers raised so-called “pre-emptory challenges” against Levitt--challenges for which no reason must be given--10 times more often than they were filed against any other Superior Court judge in criminal cases.

Meanwhile, the 4th District Court of Appeal has taken Levitt to task on several occasions for his handling of contempt findings and other issues in criminal cases.

In March, for instance, the appellate court scolded Levitt for refusing to approve the preparation of a transcript requested by the court-appointed lawyers for accused multiple murderer David Lucas. Justice Edward Butler wrote a separate opinion expressing “puzzlement” at Levitt’s decision to fight the request with the help of the county counsel’s office when prosecutors had no objection to the preparation of the document.

Levitt--widely regarded as one of the leading legal scholars on the Superior Court bench--has insisted amid the controversy that he draws criticism because he is tough on poorly prepared lawyers and because of his reputation for stiff sentences.

Lost Causes

“You offend those whose errors you point out,” he said in an interview in April. “The lawyers who get ticked off at me are the lawyers who are unprepared. Talk to a good lawyer who comes in prepared and they don’t have that problem.”

Challenges like those posed by Khoury and Wolf are rarely filed--mainly because they are considered lost causes, according to defense attorney Elisabeth Semel, a former president of the defense bar association.

Judges at times become the subject of “blanket challenges”--decisions by either prosecution or defense lawyers in their county to pose pre-emptory challenges every time a case is assigned to the judge, because of a perception the judge is either soft or hard on criminal defendants.

Such circumstances can complicate court management and even force a judge to abandon hopes of ever presiding in criminal cases. But Duffy said the challenges to Levitt have not caused any problems for court management in San Diego County.

Khoury said Thursday that his bitter memories of conflict with Levitt during his defense of Peter Mahone in a 1974 police shooting case convinced him that he had to challenge the veteran judge’s ability to be impartial in the Waldon case.

Payment Denied

Mahone pleaded not guilty by reason of insanity to several assault charges stemming from the shootings. At the end of the trial, Levitt held Khoury in contempt, finding he had ignored repeated instructions not to make comments to the jury about the possibility that Mahone could receive psychiatric treatment if he were found not guilty.

Levitt ordered Khoury immediately jailed. The judge also denied him payment of extraordinary fees in the court-appointed case--a decision that Khoury said “destroyed” his law practice, in light of the amount of time he had invested in the case.

The contempt ruling later was reversed by the 4th District court.

Geraldine Russell, Khoury’s co-counsel, said the defense lawyers also were concerned that Levitt’s track record indicated he would severely restrict their presentation of Waldon’s case.

Waldon is charged with murder in the December, 1985, slayings of a 42-year-old Del Mar Heights woman and her 13-year-old daughter and the shooting death two weeks later of a 59-year-old University Heights man. Because prosecutors have filed special circumstance allegations in each killing, he could face execution if he is convicted of the charges.