For months now, an unexplained edict from District Attorney Bonnie Dumanis has forbidden county prosecutors from bringing new criminal cases before one particular Superior Court judge.
What gives? Can the DA just wave her hands and — voila! — a judge is blackballed? Yes.
It’s that simple, and it’s apparently been done before here.
But there are risks to boycotting a judge, and one expert suspects that Dumanis won’t play this card for long.
“I don’t think the office can afford to waste this free challenge in every single case,” said Jan Stiglitz, co-director of the California Innocence Project.
He’s referring to what he calls a “freebie” — the opportunity for a prosecutor or defense attorney to reject a judge in a criminal case without specifying a reason. It’s known as a peremptory challenge.
“You are supposed to sign a paper that says you don’t think this judge can be fair to this side of the case,” said Michael Crowley, immediate past president of the San Diego Criminal Defense Bar.
Attorneys are careful about turning to the challenges because they only get one chance to use it in a case and because they can’t control the identity of the judge they might get as an alternative.
“You don’t know who the next judge in the rotation will be. The one you get may be worse than the one you got before,” Stiglitz said.
(Attorneys do have an alternative, however, if they think a judge will be biased or unfair: they can challenge them with specific concerns about how they’re unfit to hear a case.)
Crowley said he’s only challenged judges a couple times in his 25-year career. As for the District Attorney’s Office, The San Diego Union-Tribune reported that two DAs, including Paul Pfingst in the 1990s, boycotted a judge named Herbert Hoffman.
(Hoffman, who’s no longer a judge, declined to comment, saying “that was a long time ago, and I don’t have anything to say about it.”)
Dumanis has refused to explain her office’s boycott of Superior Court Judge John Einhorn, although she did issue a statement saying her office has “a legal right to make certain decisions in private,” the North County Times reported.
She added: “I pledge to those who elected me as their District Attorney that this decision was made carefully and solely in the interest of justice.”
For his part, Einhorn has remained silent. He is a high-profile judge, having presided over several murder cases that drew national media attention, including the recent trials of the “Bird Rock Bandits” and Cynthia Sommer, a woman accused of murdering her Marine husband. (For more details on the latter case, whose timing suggests an Einhorn ruling may have angered the DA, check this story we published this month one in a five-part series about Dumanis.)
Last week, the District Attorney’s Office allowed a presiding judge to assign a case involving a sexual predator’s future to Einhorn’s courtroom. However, the case is considered to be a civil case, not a criminal case.
What’s next? If the boycott continues, Einhorn will still hear criminal cases that were assigned to him before the boycott. He could also hear civil cases and, as he may be doing, ride out the storm until the boycott ends.