Saturday, January 23, 2010

Carr v. Rosen: a New Development?

Local San Jose media is abuzz with the revelation that D.A. Dolores Carr is seeking to "boycott" a judge. A judge recently issued a decision accusing a Santa Clara County D.A. (not Carr) of ethical violations. Now, Carr apparently believes that this judge might be biased against her department in the future. (If a judge sanctioned you severely for ethical violations, would you want to appear in front of that judge again?) Carr then indicated she would use every California attorney's procedural right to strike the judge from future cases.

Dolores Carr is using a legitimate method (i.e., CCP 170.6 declarations) to get a judge she believes will be more favorable to her department. Every California lawyer, not just the D.A., has the absolute right to bounce one judge from his or her case in state court.

I don't know much about Carr or the judge, but it seems to me that if someone wants to criticize Carr, s/he should be examining the content of the judge's decision--not Carr's savvy use of legal procedure. For example, what exactly does the decision say? Did the judge say that Carr was directly involved in the ethical violations? What should Carr do to prevent similar situations from happening in the future?

Also, have previous SCC D.A.s been subjected to such decisions? If so, is there a disparity between the number of such decisions against Carr's office as compared to her predecessors?

In short, instead of focusing on the judge, we ought to be more concerned about future ethics violations. When such violations occur, criminals may go free. As a local voter, I would like Carr to indicate that she is taking the judge's decision seriously, is investigating what happened, and is taking specific measures to fix the problem.

Bonus: a local attorney explains his view of the situation:

Local lawyer: there is a constitutionally based, political process involved in the selection of superior court judges. When the DA sets up a blanket peremptory against one single judge, the DA is undermining the will of the people. The Governor and the voters have decided the judge is fit to preside over criminal cases, but the DA gets to decide otherwise by effect of the blanket peremptory. That's undemocratic and an abuse of power. It's beyond extreme as a matter of practice, as indicated in the article. It's also bare-knuckled intimidation against judges willing to stand-up to misconduct by the DAs office. The DAs are a nice bunch, but not infallible.

You don't need a comparative study to figure out how very wrong Carr is here, because it's a misuse of power a priori, without any possible justification given the remedies available under the system. The DA is there to prosecute crime, not exact payback on judges. And, if what the judge did was so beyond the pale, there's a remedy for that: it's called the ballot box.

Me: I am curious to see what the state bar does. If the D.A. committed gross misconduct, the bar should investigate and at least suspend him. I also wonder if the judge had a way of dealing with the misconduct that didn't involve letting an alleged child molester go free. For example, could the judge have referred the D.A. to the state bar instead of dismissing the case outright? Unfortunately, I don't know enough about criminal law to have an informed opinion. If, however, the judge was Constitutionally-able to send the case to a jury by excluding tainted evidence and/or including limiting instructions, I understand Carr's reaction.

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