Dumanis Explains Courtroom Challenges
Monday, March 1, 2010
San Diego County District Attorney Bonnie Dumanis has been in the news recently because of her office's "blanket challenge" or "boycott" of Judge John Einhorn; a more recent challenge to Judge Harry Elias; and a threatened challenge to Judge Sara Parsky.
MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. Last week we had a program on These Days about reports that the San Diego County District Attorney's office was targeting judges for boycotts. Our guests and most of our callers questioned why the DA's office made the decision to have prosecutors direct cases away from certain judges. The practice was also described as having a chilling effect on the local judiciary. As you might imagine, District Attorney Dumanis has her own opinion on the topic, and she's here today to tell us about it. I’d like to welcome my guests. First of all DA Bonnie Dumanis. Ms. Dumanis, welcome.
BONNIE DUMANIS (District Attorney, County of San Diego): Thank you. Good to be here.
CAVANAUGH: And San Diego County Assistant District Attorney Jesse Rodriguez is here as well. Good morning.
JESSE RODRIGUEZ (Assistant District Attorney, County of San Diego): Good morning.
CAVANAUGH: And we’d like to invite our listeners to join the conversation. Do you have a question about the reports you’ve heard about the DA’s boycotts against judges in San Diego? Give us a call with your questions and comments. Our number is 1-888-895-5727. Now, Bonnie Dumanis, your office directed cases away from Judge John Einhorn for about three months last year. Would you describe that as a boycott?
DUMANIS: No. What we’ve been doing in the District Attorney’s office is what is done every day in every courthouse in the state of California. I’d like to just give you a little bit of my background and also the Assistant DA, Jesse Rodriguez, is here because he has a special background and that is he was a supervising judge handling cases where challenges were made for more than 14 years. My background, I’ve been in this District Attorney’s office since 1974 with a break in being a prosecutor to be a judge and then now I’m the District Attorney. So any time we decide to challenge a judge is a very careful, considered opinion and it is after a long period of time. It’s not targeting, it’s not personal, it is for fairness and justice in our case, and every attorney gets the opportunity in their case to make a challenge to a judge without saying anything. They’re – You don’t give a reason for a good reason, and that is the law allows each party to make that choice to determine because you know your case better than anybody else and you know what you need to make sure in a prosecution that you’re going to get a fair trial for the victims, the families, the witnesses and that sort of thing. And so it’s been happening in San Diego since 1974 in the exact same way and so this is really not anything new.
CAVANAUGH: When your office does make the determination, though, to basically direct all criminal cases away from a certain judge, the way it was in the case of Judge Einhorn, what are the criteria that would make your office make that kind of a decision. In other words, I know that you don’t necessarily want to give a reason in this particular case but why would your office make that determination to steer all criminal cases away from a certain judge?
DUMANIS: First, we don’t steer cases away from a judge, and that would be a good entrée into Jesse Rodriguez, the Assistant District Attorney, to explain how cases are handled. The judge, the court, is the one that makes court assignments. So, Jesse, could you maybe give a little background on that?
RODRIGUEZ: Sure. I was the supervising judge in Central downtown for a couple of years before I went to Chula Vista and became the supervising judge of the entire courthouse in Chula Vista. And all the – actually, all the peremptory challenges, what we call peremptory challenges, had to go through me, so I had to accept those challenges. You don’t go to the particular judge and challenge, you challenge through the supervising judge. And the supervising judge accepts the challenge; he’s got no choice. And 99.9% of the challenges come from the defense bar. And that’s – as we speak right now, somebody’s being challenged in this county, some judge, some commissioner, whether it be a civil case, a criminal case, a small claims case, a traffic court case, it doesn’t matter. But, generally, 99.9% come from the defense bar so you have to accept them. As a supervising judge, you also must understand that that’s part of life and you’re not boycotting the judge. I mean, it’s a constitutional right that you have as a litigant saying that I can’t, on this particular case on this particular time and date, that I’m before you, judge, I’m challenging this particular judge because I feel that he or she can – my client cannot receive a fair trial. That’s the bottom line.
CAVANAUGH: Okay. Let me just get back to this, though, because I want to clarify what we’re talking about here. It’s been widely reported in the case of Judge Einhorn that your office basically told prosecutors not to bring cases against this judge for about three months last year. Is that true or not?
DUMANIS: Well, what we said was we are going to, case by case, but for – first of all, Judge Einhorn is one judge out of 130.
DUMANIS: So cases aren’t necessarily sent to him, and we’ve actually filed just a couple of challenges. What we said was after a year and a half of looking at things, our deputies—we have more than 300 deputy DAs—and when they have experiences in court they bring those experiences. So we have the big picture. Everybody else doesn’t have the big picture about issues that are raised. And after about a year and a half, we did explain to prosecutors, based on what their desires were and a serious consideration and discussion with senior deputies, to make challenges on a case-by-case basis for the time being. And, as you know, you don’t – we just do it one case at a time, and the court decides who to assign them to. And we did challenge this particular judge on two occasions.
CAVANAUGH: Now, I’m wondering, a lot of people have said, you know, Judge Einhorn presided over the Cynthia Sommers (sic) case. That didn’t turn out too well for the prosecutors. And any connection between that and the Einhorn boy – the challenge that your office made to subsequent cases to Judge Einhorn or, as you say, are you looking at a bigger picture?
DUMANIS: That’s a nice try to get a reason, Maureen, but, yes, we are, as you said I said, we are looking at the bigger picture. We would never challenge a judge for one case or two cases, for that matter. We look at overall. And it’s not a reflection of the judge, which is why we don’t want to say the reasons or enumerate the reasons. First of all, in a peremptory challenge, a judge can’t respond to that. So if we were to publicly say all the reasons why we didn’t want to, the judge can’t respond and, you know, the Business and Professions Code demands that we respect the bench and we do respect the bench and we do respect Judge Einhorn. Judge Einhorn was a colleague of Jesse and I, he is a good jurist, and just like with peremptory challenges on jurors, it doesn’t say anything about the juror, it just says for this particular case, that juror – I was kicked off a panel in a civil case. And when I say kicked off, a peremptory challenge was exercised without any reasons given and the reason is for that particular case, whatever reason, those two lawyers knew the case better than I did. So, you know, what I think is really important is we handle 40,000 cases a year and roughly try about 700 cases a year. And this has happened like it happens in every other DA’s offices and like it happened before my time in two different DAs. Challenges are made where we think it’s appropriate, and it’s a handful of times out of all those cases. 4900 trials within the last 7 years, and it’s not happened very often. And when it does happen, we are very careful about how we do it. And we don’t make a big deal about it. It’s – We’re here to talk about it today because I think it’s a teachable moment, it’s a good opportunity to talk about the process so that people understand it and understand that this is what lawyers do every day to do their job, to get the best and, you know – opportunities for their case to get a fair trial.
CAVANAUGH: I’m speaking with District Attorney Bonnie Dumanis and San Diego County Assistant District Attorney Jesse Rodriguez. We’ve been talking – we are talking about reports that there have been some judges that have been challenged and boycotted by the DA’s office. And I want to ask you about the two other cases that have made the news lately, Judge Harry Elias and Judge Parsky in Chula Vista. And that seems to be a little different from what’s been said about Judge Einhorn. Those seem to be individual instances of challenges or even just the mention of a challenge. But in Judge Elias’ case, he was very critical of the prosecutors in Vista for not turning over possibly exculpatory evidence to defense attorneys promptly. When he is challenged after doing that, doesn’t that reflect on the prosecutors, the DA’s office, that perhaps you’re not looking into what he’s saying but rather you’re just annoyed at the fact that he said it?
DUMANIS: Well, that’s a mouthful, Maureen. Let me try and break it down here. First of all, there never was, and is not, a challenge on Judge Parsky. Secondly, with the North County challenge, there are two different kinds of challenges. We’ve been talking about peremptory challenge. You also have a right to challenge a judge for what’s called cause to – And that – in that challenge, the law requires you to lay out the reasons why you are challenging that judge, and we did that in this particular case. And the reason we said we wouldn’t get a fair trial is because the judge made global negative comments indicating he couldn’t be fair to our office and so, therefore, we didn’t think we – it would be a fair result and so we made a challenge for cause. Now the separate issue about comments that he made that were global, number one, there is no systematic problem. We have worked with the judges, including the judges in North County, and we know and work on issues that arise. But we certainly reflect on anything when a judge makes a comment about something and we have had 32 trainings in the last three years on discovery issues and also wanting to take a look at it broadly just because it is the core of a prosecutor turning over evidence. We had a training on Mar – February 17th all day for every deputy DA, investigator, paralegal in our office to just go over the basics again to just make sure that people are all on the same page that we know. Our prosecutors know what the rules and the duties are. There are mistakes that happen sometimes. There was no mistake in this particular case but we want to deal with that and we want the public to know that we take our right to a fair trial for the defendant and turning over evidence very seriously.
CAVANAUGH: One of our guests mentioned the idea that when Judge Elias was so public in his criticism about the way the prosecutors were handling that case—I think there were two cases—in Vista, that your office’s challenge to him without, you know, publicly investigating his critique made it – made the appearance that, you know, you were not taking what he said seriously and also were more interested in winning the case than pursuing justice.
DUMANIS: Well, that certainly is not true. Number one, it is improper to say, from the bench, a global statement that prejudices another party, and so that’s why we made the challenge. We have worked, and continue to work, in North County, as in all areas of the county, on issues. As I said, we meet with judges, we meet with the defense bar on a regular basis. In fact, before this incident took place, we had met with the defense bar and nobody from the defense bar, Public Defender’s office, supervisors present there, that there was any global systematic problem. There have been a few cases where there have been some issues raised and when issues are raised, we deal with it right away and we try and correct it. We are not about winning cases, we are about doing justice, and we protect the innocent just as much as we prosecute those who have committed crimes. And we – I stand by the prosecutor in that office at that time. When you review the facts, and we vigorously fought it in court, when you review the facts I think that you would realize that the case – In that particular case, the defense attorney had the evidence and was actually in court for several weeks. And so, you know, there are a lot of issues and it’s very care – you know, you have to be very careful when there are cases pending but these are all – This is information that’s in the public record, that I speak, up in North County. But we don’t punish judges, we don’t target judges, this is not gamesmanship. This is about we represent the People of the State of California and when we have a case, that’s just as important as anybody else’s case and we’re going to make sure that we get the evidence we need, we charge the charges we need to do, we present our case the way we need to do it, and that we have the judge we need to do it with. And we have – Every attorney has the opportunity to challenge once on a case and the judges then decide to send it to another judge and – and we don’t get to challenge that judge.
CAVANAUGH: Let me just ask you, Jesse Rodriguez, briefly, if I may, about the Judge Parsky situation. She announced in open court that she had been given some advice by the supervising judge—and I ask you because you have been a supervising judge—about the case that she was hearing at that moment and that she might have some difficulties down the line if she didn’t sort of shape up. Do you give that kind of advice to judges about the actual cases that they’re hearing?
RODRIGUEZ: Well, let me put it this way, in my entire practice of being a supervising judge, I had a policy. My policy is that any side, whether they be prosecution or defense, and generally it was mostly the defense because I had an open-door policy, if you’re going to challenge one of my judges, I need to know. I need to get cases out, I don’t need the system to break down because you’re going to challenge a judge or multiple judges, I want to know the reason why and – and that was the policy. So people would come and tell me I have an issue with this judge, whether it be the defense or the prosecution, and rarely was it the prosecution, it’s mostly the defense, and it was my responsibility as a supervising judge to try to solve the problem if there was an issue with one of my judges. That’s my responsibility that I have under the Canons – the ethics of canons – the Canons of Ethics for judges because I’m responsible for that particular judge. So if I’m responsible, I want to know the reason, so that was my policy. And without getting into the Judge Parsky situation, would I talk to the judges? Yes, I would talk to the judges. The problem becomes when you don’t have a particular party that’s going to challenge – talk to that judge for various reasons. There’s cases pending in that department, and you don’t want to view like you’ll threaten the judge if you don’t rule my way or you don’t do this, I’m going to challenge you then. And Judge Parsky had already decided the issue that was – became part of the issue or other issues so there was no intention or any direction to tell the supervising judge to talk to Judge Parsky. That was not in any way intended and it was a heads-up that there’s some issues with that particular judge or any particular judge. And as a supervising judge, you want to know because you want to correct it. And some things are correctable, some are not.
DUMANIS: And I just want to point out…
CAVANAUGH: Yes, please.
DUMANIS: …we would never talk to a judge in a pending case about the decisions in that case. And my guess is, the supervising judge in that case didn’t realize that there was a pending case when he talked to her. So, you know, the talking to, just giving heads-up or the administrative aspects of it is, I think, where we go. But we don’t – that’s why we don’t talk to judges about the particular challenge issues because—and it’s not proper for them to ask about them, and it’s not really proper for us to talk about them.
CAVANAUGH: Now, Ms. Dumanis, you are here and basically you’ve been telling us, if I may just sort of focus what you’ve been saying, is that this is something that happens quite regularly, it’s part of the legal system, it’s part of what prosecutors do and defense attorneys do, peremptory challenge to a judge, it’s no big deal basically. And I’m wondering then, why has it become such a big deal? And why do you think there’ve been so many reports, such a reaction from the defense attorney community about the fact that it has seemed that you’ve been using these challenges more, directing them towards certain judges more, and they’re somewhat baffled as to the reasons that you’re doing it.
DUMANIS: Well, I don’t want to speculate for why it’s become news. I think, as we’ve seen, it’s happened in other – and sometimes it becomes a little newsworthy. It has in other administrations as well. So for the prosecutor, it is rare that we do challenges of judges but, still, because we are a large office and because we represent most of the criminal – the People of the State of California and probably most of the – all of the felonies and most of the misdemeanors as well, you know, it draws more attention, I think. But it’s not something we talked to the press about, it’s not something we raised. I think it’s an opportunity. It’s an adversarial system. It’s an opportunity for the other side to draw attention to it because even though they do it, somehow they think that we shouldn’t be able to have a fair trial as well. But, you know, I acknowledge that as a public agency that handles, like I said, 40,000 cases, it’s different than if, you know, the defense does it although they do it to a certain judge from time to time as well because there’s some concern. But I think, you know, the thing I would like to get across is please don’t speculate about why it’s being done, don’t – it shouldn’t impact a judge’s reputation because a judge is required to do what they think is right and we are required to do what we think is right and the defense is required to do what they think is right. And everybody is operating in good faith here, and I’m just here to say that we are doing what we think is right. There is no, you know, agenda here, which some have presented. And it is rare. It’s only happened – It just so happens that there’ve been a couple of challenges – or one challenge for cause that happened, which is a little bit unusual, and, you know, this other challenge that the press found out about that they have made a big deal about but please know it happens and please know that when we do it, we only do it after a lot of consideration over a long period of time and do it very carefully and considered and – and it’s not – it doesn’t say anything negative in terms of the judge.
CAVANAUGH: When we were talking about this before, our speakers made it very clear that this does have a big impact on a judge. It impacts a judge’s career. The fact that the DA’s office has challenged a judge or made a blanket challenge against a judge on numerous occasions can impact their possible reelection, their outlook for being reelected. And in this Sunday’s U-T, the three judges that also had challenges from your office before Judge Einhorn, none of them are hearing major criminal cases anymore. So I wonder, that’s – do you feel that that is also your responsibility when you look and you make the decision that you’re going to be challenging a judge on the bench?
DUMANIS: Number one, it – the presiding judge or the supervising judge makes the decision on where to send judges and they would not make it just because we have challenged a judge. There are other things that a judge can do, other criminal matters that a judge can do, and, as we’ve said, they don’t necessarily – the challenge isn’t for a long period of time necessarily; it’s on certain cases, certain things, that sort of thing. So I do not believe – First of all, that all of those judges are still judging, doing cases, some of them are criminal, some – They are rotated on a regular basis just like our office, we rotate people on a regular basis. And that’s up to the presiding judge to determine what the strengths are of the judge and put them in and – and I know that Jesse’s – can do that because he’s assigned cases like that. So it is – And it, again, hasn’t happened over this period of time that I’ve been in office very often and those judges are still being good judges, doing good things. But I can say that we would never do it to influence a judicial election and just because a judge is challenged one or two times, or even for, you know, three or four times, whether it be the defense or whether it be the prosecution, it should not impact a judicial election because judges should be judged on their abilities to do the right thing and to follow the law. And if they’re following the law, whether anyone likes it, whether either side likes it, they still need to do it and we, for one, under my administration would never – I am, as a former judge, one of the biggest advocates for the independence of the judiciary and I would fight for that independence in an election process.
CAVANAUGH: So my last question to you, this is not your office’s way of saying do it – do it my way. You – you’d better do it our way.
DUMANIS: No, it is not our office’s way to say do it our way. We are trying to have a fair trial and, listen, we get ruled against on many occasions so if we were to use that as the criteria for challenging a judge – You know, judges should do what they think is right and we look at all things involved in a case. You know, sometimes – Judges are human just like we are and you have various likes and dislikes and ways that, unconsciously, you’re impacted and you do things that, you know, some – Some judges I know won’t hear child abuse cases and – or are tougher on them. Some judges don’t like economic crimes because they’re paper. You know, those are the kinds of things that we look at. Some of them don’t like, you know, redheads or, you know, I mean, I’m using that as a joke but, you know, there’s a lot of ways to look at it. But we’re not telling the judges. And I would be surprised if any judge felt that they couldn’t make the right decision because of what our office did. And if they can’t stand up and be counted, then they have an issue, we don’t have the issue.
CAVANAUGH: I want to thank you both so much for speaking with us today. I’ve been speaking with San Diego District – County District Attorney Bonnie Dumanis and San Diego County Assistant District Attorney Jesse Rodriguez. Thank you both so much for coming in and speaking with us. If you’d like to post a comment, go online, KPBS.org/thesedays. Coming up, we’ll talk about a safe house for victims of sex trafficking opening here in San Diego. That’s as These Days continues here on KPBS.