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.

How to Judge a District Attorney

[Note: I revised the last two paragraphs to update facts relating to Vahid Hosseini's prosecution.]

Shouldn't the main factors used to judge a D.A.'s success be 1) winning trials; 2) managing costs, i.e. winning cases without overspending taxpayer monies; 3) not prosecuting unwarranted cases; and 4) promoting settlement when non-violent crimes, such as drug possession, are involved?

On these four factors, where is the evidence that Santa Clara County D.A. Dolores Carr has failed? Where is the evidence that challenger Jeff Rosen will do a better job than Attorney Carr on these four factors? [Update: at this point, I had not met Mr. Rosen. Having met Mr. Rosen, I can tell you that he seems very motivated to bring a new culture to the D.A.'s office.]

I don't have a dog in the D.A. race, but I am curious why the SJ Mercury dislikes Attorney Carr so much. Scott Herhold, one of my favorite local columnists, trashed her in a recent column. See here. He also wrote, "I personally like to think I'm near the top of her enemies list." (Wow.)

I know Attorney Carr's husband was involved in an ethics issue, but I haven't heard of the D.A.'s office botching any major cases (Maybe I've missed something--and I consider the DeAnza case to be more of a tragedy than a missed opportunity to prosecute). I know prosecutor Benjamin T. Field allegedly committed ethical violations, but that wasn't necessarily Attorney Carr's fault.

Bottom line: the legal profession is monolithic enough as it is. District Attorneys tend to be hyper-aggressive, egotistical men with Superman complexes. (See here for further explanation.) I like the idea of having a female D.A., even though I realize gender has nothing to do with competence. Plus, I don't know much about challenger Jeff Rosen, and it seems to me that the devil you know is better than the devil you don't.

At the same time, I am a harshly judgmental voter. Some readers may remember that the Santa Clara County D.A.'s office transferred the prosecution of Vahid Hosseini's alleged killers to the state AG's Office (Attorney Geoff Lauter?). The D.A.'s office may have transferred the case to avoid making Attorney Carr the centerpiece of an "O.J. Simpson, 'local law enforcement is corrupt'" defense strategy. If, however, the AG's Office fails to convict the killer and his alleged accomplices, I may vote against the incumbent D.A. Is that unfair, given that Attorney Carr's office is no longer responsible for the Vahid Hosseini case? Perhaps. But to me and many others, not putting Vahid Hosseini's killer(s) in jail would be a monumental failure worthy of widespread blame.

[Update on November 10, 2009: One person has questioned my comments regarding the transfer of the Vahid Hosseini case. Apparently, Attorney Carr's office would not have had to transfer the case to the AG if the Mercury News hadn't raised issues about a possible conflict with Attorney Carr's husband being hired by Mrs. Hosseini's civil lawyer. (Mrs. Hosseini hired Attorney Carr's husband to investigate protocols used by bank security personnel in a separate civil lawsuit.) In short, Attorney Carr may have transferred the Hosseini case not because she had to do so, but because she wished to avoid the appearance of impropriety.]

Updates on June 22, 2010 and April 7, 2011: Mr. Rosen won the D.A.'s race by a razor-thin margin. More here on his swearing-in ceremony and an important change in the prosecution's procedures.