Photo by Sam Hodgson
District Attorney Bonnie Dumanis (file photo)
The San Diego County District Attorney’s Office has threatened to boycott another Superior Court judge over rulings that prosecutors found troubling, according to a personal account from the judge in question.
Laura Parsky, the third judge in four months to be targeted by the district attorney, related details of the possible boycott during a court hearing in a domestic violence case Jan. 15.
Parsky said it was her ethical duty to disclose that a district attorney supervisor had complained to the supervising judge in Chula Vista about some of her rulings, including decisions she made in the still-pending domestic violence case. The supervising judge, who handles ministerial matters such as assigning cases to other judges, then relayed these concerns to Parsky, along with a warning that the District Attorney’s Office may seek to disqualify her in future cases.
It is considered unethical for a party in a pending case to have communications with the judge without the other parties present. Although the prosecutor and Parsky had no direct communication in this case, Parsky was so concerned about the implications of the exchange that she consulted a state judicial ethics panel and was advised to formally disclose it.
She did so at the next hearing in the domestic violence case of defendant Michael Barron.
“The supervising attorney from the District Attorney’s Office … advised the supervising judge that the district attorney’s office may be exercising peremptory challenges against me based on that ruling and others,” Parsky said, referring in part to decisions in the Barron case.
Her comments are contained in a court transcript of the hearing. Barron’s defense attorney, Lynn Ball, subsequently filed a motion to disqualify the District Attorney’s Office because of “arrogant misconduct.”
“I just don’t like that they have this old boys’ club down there,” Ball said in an interview. “It’s bad enough that every damn judge is a former D.A. To feel that they can go talk to the chief judge and say, ‘Square your guys away or they’re going to be challenged,’ that is a violation of the separation of power.”
“Essentially (the D.A. is) lecturing the chief judge on how the judges should rule and that’s not right. That’s not how our system is supposed to work,” Ball said.
The Parsky situation comes on the heels of two other cases involving judges and the district attorney.
In October, District Attorney Bonnie Dumanis directed her prosecutors to use their peremptory challenge against respected Judge John Einhorn, meaning the office blocked all new cases from going to the judge.
That boycott ended just days before the office did the same thing to Judge Harry Elias at the end of January, saying he was biased because he harshly criticized the prosecutors for failing to follow rules for turning over evidence to defense lawyers.
The rare moves by Dumanis so disturbed the defense community that a group of lawyers elected Einhorn as trial judge of the year for 2009. Numerous lawyers have said the boycotts are a blatant power play to control the bench.
“I think it’s a dangerous attempt to intimidate and manipulate the court,” said Allen Bloom, attorney for Cynthia Sommer.
Sommer was convicted in 2007 of fatally poisoning her Marine husband with arsenic and spent more than two years in prison before the case was dismissed when new test results showed the husband had no arsenic in his body. Einhorn was the judge in that case; some in the legal community have speculated that Einhorn was boycotted over rulings or comments he made in that case.
Dumanis, who is not required by law to state a reason for alleging bias by these judges, has only addressed the Einhorn situation in a brief statement: “This decision was made after careful consideration and thoughtful review over an extended period of time. It is a judgment call made in the best interests of our clients, the People of the State of California, and the cases we are prosecuting.”
Such boycotts are not unprecedented, but these are believed to be the only cases involving Dumanis’ office in almost eight years.
It was against this backdrop, with these cases in the news, that the district attorney supervisor approached the supervisory judge. Though court documents don’t mention names, the D.A. supervisor in Chula Vista at the time was Gregg McClain; the supervising judge is Esteban Hernandez.
Ball, the defense attorney, noted in his motion that the threat of a blanket challenge — when prosecutors use what’s known as a peremptory challenge to allege bias and block a judge from receiving any new cases — could be a career-ending proposition for a judge for a couple of reasons.
It means the judge will no longer be assigned criminal cases, which could relegate him or her to handle less glamorous civil cases; and it leaves the judge vulnerable to a challenger when reelection time comes.
Incumbent judges are rarely challenged, but without the district attorney’s endorsement it opens a door for savvy challengers to seize on the appearance the incumbent is soft on crime.
Ball asked that the prosecutor be replaced by an impartial agency, such as the state Attorney General’s Office and argued that removing the judge would not solve the problem.
“Whatever judge in San Diego Superior Court would substitute for Judge Parsky would know the position of the District Attorney’s Office and would be in a position to be cowed by the authority and power of the district attorney to influence the judge to rule in accordance with the District Attorney’s desires,” Ball wrote in his motion. “That judge would know that he or she could also be the victim of the District Attorney’s wrath if he or she did not rule in accordance with the district attorney’s desire.”
When asked whether the District Attorney’s Office planned to boycott Parsky, the current supervisor in Chula Vista, Victor Nuñez, said: “We are monitoring her. We are monitoring how she handles cases.” He declined to say more. (Nuñez was not the supervisor who complained about Parsky.)
Paul Levikow, Dumanis’ spokesman, said the office is not boycotting Parsky and that the issue involved one case, but he declined to say more, noting the office does not comment on pending cases.
A court official with knowledge of the case said Parsky’s version doesn’t tell the whole story.
The official characterized her as a bright but inexperienced judge who has run afoul of prosecutors because, in their view, she is making rookie mistakes. She’s not being bullied to make favorable decisions for the prosecution, the court official said; rather, she’s being urged to make sound ones.
Some judges and prosecutors said such informal, behind-the-scenes critiques are not unusual and are meant to be constructive, not manipulative. In this case, the information was intended to be a confidential heads-up for the supervising judge that he may want to steer more complex cases to another judge because prosecutors are likely to challenge otherwise. The criticism probably wasn’t even meant for Parsky to hear, they said.
“This happens every day with supervising judges, the D.A.’s office, public defenders and the private bar. It’s mostly over demeanor, as in, tell them to stop being so snippety with people. It’s not a big conspiracy, it’s not ‘We’re going to try to control the bench.’ It’s not nefarious, it’s not bad, it’s actually a way to educate certain judges,” said the court official with knowledge of the situation.
Case in point: In the matter of Barron, who was convicted of domestic violence charges, the remaining issue before sentencing was whether he had a previous felony conviction, which would make the current conviction a second strike and result in a much greater sentence.
According to the courthouse source, Parsky refused to admit into evidence fingerprints and other government records without testimony from a Sacramento lab expert to authenticate those records. The law allows them to be admitted without such authentication.
Prosecutors routinely avoid having to fly in an expert for authentications by having their own investigators take the fingerprints and compare them to the government record to validate they belong to the same person. In this case, prosecutors wanted to prove that Barron was the same man who committed a previous felony and therefore did have a prior strike on his record.
As for the Barron case, eventually the prosecution and defense agreed that Barron did in fact have a prior felony conviction. The defense plans to ask the judge to ignore that first conviction. A Feb. 4 sentencing hearing was delayed so the state Attorney General’s Office could weigh in on the disqualification issue.
Parsky is the daughter of prominent Republican kingmaker Gerry Parsky. The elder Parsky has close ties to former President George W. Bush, served on the University of California Board of Regents, has played a big role in the selection of federal judges and U.S. attorneys in California and is very active in state politics.
Judge Parsky was appointed by Gov. Schwarzenegger in 2006. Most of her experience is on the federal side. She worked as a deputy assistant attorney general in the Justice Department in Washington, D.C., where she was a protégé of Michael Chertoff, then a high-ranking Justice Department official. He later became head of the Department of Homeland Security. Parsky, a Yale University graduate with a law degree from UC Berkeley, is registered as decline to state.
Kelly Thornton is a San Diego-based freelance writer. Please contact her directly at email@example.com.
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