SAN DIEGO – It might not be fair, it may even be an “abuse” of the law, but it’s certainly legal. This, in essence, was the decision handed down from the California 4th Circuit Court of Appeal on July 25 in a case involving the Orange County District Attorney's Office and a judge.
The case revolved around the treatment by the Orange County District Attorney's Office of Superior Court Judge Thomas Goethals. Goethals was repeatedly removed from cases because, it was presumed, that he had a bias in the outcome. While this can be a concern in some cases, in many cases it’s an opportunity to “get back” at a judge for any number of perceived slights. The action, known as “papering,” is legal through Section 107.6 although in its ruling, the 4th Circuit Court of Appeals suggested that should be revisited.
Prior to 2014, Goethals had been removed from a murder trial only one time (during the period of 2011 to 2014). After 2014, the judge was assigned 49 murder cases but was removed from 46 of those.
“(Section) 170.6 happens all the time, from the defense and the prosecution, but eruptions of this type don’t happen very often,” John Steele, a practicing attorney who also teaches at The University of California, Berkeley told the Northern California Record.
2014 is seen as the turning point because of the Scott Dekraai murder case. During that trial, Goethals ended up removing the district attorney from the entire case because it was revealed that they had been running, in conjunction with the Orange County Sheriff’s Department, a secret program of jailhouse informants. This information, along with the discovery that two sheriff’s deputies lied while giving testimony, caused the case the entire Dekraai case to shift. The treatment of Goethals by the district attorney's office from that point forward is alleged to be because of his decision in the Dekraai case.
California is one of only a few states to allow a challenge to a judge in this manner.
“Outside of California, when you have concerns with a judge you live with it, but inside you can 'ding' (or 'paper') that judge,” Steele said.
It’s a tactic that Steele says has been a part of trials in California “for years.”
The Orange County District Attorney's Office contended in a statement that “there has never been 'blanket papering' of any judicial officer. Any exercise of peremptory challenge made by any member of the OCDA has been the individual prosecutor’s decision to do what is in the best interest of the people, public safety and crime victims.”
The 4th Circuit Court of Appeals saw things differently. In its ruling, Justice Richard Aronson stated "...the district attorney engaged in blanket papering of Judge Goethals and did so to retaliate and punish a widely respected and experienced jurist the district attorney previously accepted on a routine basis."
“The unusual California process is not terrific nor is it horrible," Steele said. "It’s got some benefits but can also be open to abuse.”