On December 5, 2015 the Superior Court of the State of California for Orange County refused the Orange County District Attorney's motion to disqualify judge Thomas Goethais based on California's peremptory challenge statute.
I wrote on this blog about the concept of peremptory disqualification of judges - the same as it exists for jurors - and about the states that allow that form of disqualification and that do not allow it.
California does allow peremptory challenge, and the Orange County DA has filed motions to disqualify judge Thomas Goethais in nearly all of 49 criminal cases assigned to the judge at the time the decision to - initially - deny the motion to disqualify was issued by the Superior Court of the State of California, Orange County, Judge Richard M. King.
The Orange County DA appealed the denial of disqualification through a writ of mandamus to the Court of Appeal of The State of California, Fourth Appellate District, Division Three.
Judge King was represented in opposition to the writ of mandamus by professor Erwin Chemerinski, a controversial constitutional law professor and a hired lecturer of BarBri, a company accused in a federal lawsuit of underhanded tactics in dominating the market of bar exam preparation by stifling competition and undercutting and eliminating better courses than what BarBri uses.
The Court of Appeal reversed and allowed the Orange County DA to disqualify Judge Thomas Goethais, in another 48-page opinion, with a strong dissent, allowing a peremptory challenge of a judge even when the reason for peremptory strike of a judge is that the challenger, a criminal prosecutor, was caught committing egregious and systematic violations of constitutional rights of criminal defendants - and should have been not only disqualified himself, but also impeached, disbarred and criminally prosecuted. Of course, none of that happened to the Orange County DA (California), Anthony Rackaukas - even though Rackaukas was not caught in committing misconduct for the first time in 2015.
In 2002 he was accused of political favoritism during grand jury proceedings, in particular towards his campaign contributors - yet, no discipline against him followed.
Instead, in 2009 California State Bar disbarred whistleblower attorney Dr. Richard Fine who caught California judges in the scheme where they were paid not only by the state, but also by the county appearing in front of them - as a result, the whistleblower was disbarred and held in jail for 14 months without criminal charges, on a civil contempt order of a judge Dr. Fine accused of corruption, and the legislators gave California judges retroactive civil and even criminal immunity in charges of corruption. I understand, otherwise too many judges had to be criminally prosecuted.
Even though criminal immunity in state courts did not extend to criminal immunity in federal courts, FBI did not investigate or prosecute the corrupt California judges, or prosecutor Anthony Rackaukas for political favoritism towards his campaign contributors in grand jury proceedings, or the illegal use by the Orange County DA of jail snitches to elicit confessions out of defendants, including in death penalty cases.
So - the whistleblower attorney Richard Fine was disbarred, for his constitutionally protected conduct.
The prosecutor repeatedly caught in committing misconduct continues with his license, and his public office - and removes judges from his cases who dared to criticize him, something that was not allowed to Richard Fine to do in the same state of California, under the same peremptory challenge law.
That's the short story.
I will analyze Judge King's decision, Professor Chemerinski's brief, and the California Court of Appeal decision, including the dissent of judge Thompson in separate blogs.
Stay tuned.
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