Judge Levitt Cleared of Bias Charge From Lawyer

Winning a round in his running battle with the criminal defense bar, San Diego County Superior Court Judge Jack Levitt has been cleared of an accusation that he could not preside impartially in the case of a defendant represented by a lawyer he jailed for contempt 13 years ago.

San Luis Obispo County Judge Barry Hammer, appointed by Chief Justice of California Malcolm Lucas to weigh the bias allegation, ruled late last week that there was no need even for a hearing on the complaint lodged by defense lawyer Charles Khoury.

The 4th District Court of Appeal upheld Hammer’s decision late Monday in a terse, one-line ruling.

Barring a further appeal, the judicial actions mean Levitt will take the bench today to preside in a competency hearing for Billy Ray Waldon, who faces three murder charges.

Under Attack

The veteran judge has come under sharp attack in the last few months by defense lawyers, who have begun to voice longstanding concerns that Levitt is lacking in judicial temperament and is unfair to criminal defendants. Levitt has categorically rejected the criticisms.

The judge--a tough-sentencing conservative known for his fastidiousness about court rules and procedures--also has drawn repeated rebukes from the appellate court for his conduct during confrontations with defense lawyers.

Though requests such as Khoury’s are extremely rare, the so-called “challenge for cause” was the second time in a month that a lawyer asked that Levitt be removed from a case because of alleged bias.

The first challenge was upheld over Levitt’s objections. Assistant Public Defender Mark Wolf alleged that Levitt had exhibited a bias against him in a 1986 rape case and as a result had imposed a needlessly harsh sentence on Wolf’s client. Superior Court Presiding Judge Thomas Duffy removed Levitt from a case involving another of Wolf’s clients, ruling that the defense lawyer could “reasonably entertain a doubt that the judge would be able to be impartial toward him.”

Khoury’s challenge was provoked by a confrontation with Levitt during his defense in 1974 of a man charged in a police shooting. Levitt found Khoury in contempt for making improper remarks during his closing argument, ignoring the judge’s repeated instructions about comments that would be considered off limits. Levitt ordered Khoury immediately jailed after the grueling trial, rather than giving him a chance to first appeal the contempt citation.

Judge Rules No Evidence

Though Khoury alleged that the incident demonstrated that Levitt had a “vindictive” streak, Hammer ruled that there was no evidence “to suggest the existence of any personal bias against attorney Khoury that persists to this day.”

A 13-year-old contempt finding, Hammer added in his written decision, was “not enough to compel (Levitt’s) disqualification forever afterwards” from cases involving Khoury.

Hammer said the “most persuasive” evidence in Levitt’s favor was the judge’s own declaration, filed in response to Khoury’s challenge, that he harbored no bias against Khoury. Levitt said he had forgotten holding Khoury in contempt until the defense lawyer’s challenge reminded him of it.

“A reasonable person aware of the facts would not reasonably entertain a doubt that Judge Levitt would be able to be impartial,” Hammer said.

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.