LOS ANGELES ― Justices for a California appellate court said in an opinion Monday that a tactic used repeatedly by the beleaguered Orange County District Attorney’s Office to disqualify a judge who exposed their misconduct from hearing additional murder cases, while technically legal, was “abusive.”
The justices also suggested the state Supreme Court and legislature should re-examine the decades-old state code surrounding judge disqualification.
In its majority opinion, the 4th District Court of Appeal’s three-justice panel ultimately ruled in favor of the OCDA’s office and upheld their right to disqualify Superior Court Judge Thomas Goethals from hearing murder cases because the controversial tactic allegedly used by the DA’s office, so-called “blanket papering” ― wherein a prosector or defense attorney requests the removal of a judge over and over again due to concerns of bias ― is allowed in state code.
Goethals has presided over scores of murder cases in the county for years, but when he began exposing illegal use of jailhouse informants by county prosecutors, critics say, DAs began to steer cases away from him.
Last year, Superior Court Judge Richard King, in a ruling that denied a request by prosecutors to yet again disqualify Goethals, did some number-crunching to illustrate what has been going on in the county. From 2010 to 2014 ― before the most egregious misconduct began bubbling up around the county’s tainted informant program, which has allegedly violated the rights of countless defendants ― Goethals was assigned 35 murder cases and was disqualified only once by OCDA prosecutors, King found. However, from February 2014 through September 2015, Goethals was assigned 49 murder cases and disqualified by county prosecutors in all but three. During that same period, Goethals’ rulings had found that county prosecutors and police had committed misconduct and ultimately had led him to eject the entire OCDA office from a high-profile murder case.
“As courts work to keep doors open and to provide timely and meaningful access to justice to the public, the extraordinary abuse of [judicial disqualification] is a barrier to justice and its cost to a court should be reconsidered,” Justice Kathleen O’Leary wrote Monday in the majority opinion.
Justice Richard Aronson in a concurring opinion said he agreed that “substantial evidence” supports King’s conclusion that “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.”
Aronson went on to say that “blanket papering” could be brought in good faith against a judge if a DA or public defender reasonably believes the judge is, in fact, prejudiced against an entire office.
But, Aronson writes, “that is not the case here.” Before Goethals’ bombshell rulings about misconduct by police and prosecutors in the county, “the district attorney routinely accepted Judge Goethals without question,” Aronson wrote.
In the dissenting opinion in the 2-1 vote, Justice David Thompson strongly agreed with King’s findings, writing that the DA’s motions were “based on the fact that [Goethals] called them out on their misconduct.”
Appellate courts are intermediaries and therefore are bound, not just guided, by decisions by the Supreme Court. In 1977, in Solberg v. Superior Court, the California Supreme Court ruled that “papering” is allowed. The court then viewed the tactic as one that could allow for fairness and balance in the justice system. On Monday, the appellate justices openly questioned the wisdom of continuing to use the decades-old ruling in the modern era, but ultimately they remain bound to the higher court’s ruling.
Orange County District Attorney Tony Rackauckas’ office said Monday in a press statement that there has never been a “blanket papering” effort by county prosecutors against any judge in the county.
“Any exercise of preemptory 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 office said.
Daniel Medwed, a law professor at Northeastern University who has written at length about prosecutorial misconduct, told The Huffington Post that “beneath the patina of collegiality,” Monday’s opinion struck him as “a cry for the higher court to look anew at Solberg and for the legislature to revisit that section of the code.”
The current state code, and legal precedent, “seems like a license for DAs to use this practice selectively and with impunity,” Medwed added.
The OCDA’s office has been under fire for almost three years for its involvement in mishandling evidence produced from a secret jailhouse informant program that has allegedly violated the rights of countless defendants.
Assistant Public Defender Scott Sanders, who first unearthed the informant network, has been arguing since 2013 that a tainted snitch network in county jails has existed in secret for decades. Sanders argues that county prosecutors and police have violated multiple defendants’ rights by illegally obtaining, and sometimes withholding, evidence gleaned from jail informants. His discoveries have led to multiple murder cases in the county unravelling, even resulting in some accused murderers having their sentences vacated.
It remains unclear exactly how many cases may have been affected by tainted informant evidence, but Sanders has argued that every case involving a jailhouse informant in Orange County over the last 30 years deserves to be re-examined.
The OCDA’s office denied that an informant program existed in the county for years, but last month they finally acknowledged that an informant program does indeed exist and that sheriff’s deputies actively “cultivated,” “recruited” and “utilized” informants and rewarded them in exchange for their information. Additionally, a new trove of secret notes kept by sheriff’s deputies about jail inmates and informants surfaced in recent months, shining new light on the informant program.
Legal experts have called for the U.S. Department of Justice to conduct a full investigation of the DA’s office and the sheriff’s department over the informant program.
Rackauckas maintains that no one in his office intentionally behaved inappropriately in relation to the jailhouse informant program.