In our experience, we find many judges are tougher on prosecutors than they are on defense attorneys because many judges were prosecutors before becoming a judge, so they know what a prosecutor ought to do and not do. They do not have first-hand experience with acting as a defense attorney and so they are more lenient.
Nonetheless, we do have clients who perceive judges as being biased in favor of the prosecution and against defendant.
The following summary is a case from San Joaquin County where defendant challenged the judge’s ability to be fair because defendant learned that the judge and the prosecutor were both involved in a student outreach program called “First Impressions.” In the program, a judge and a couple volunteer attorneys taught a fifth-grade class about the Constitution and the judicial process.
The program involved four visits to a fifth-grade classroom for about 45 minutes each session culminating in a mock trial lasting about two hours at the courthouse in the judge’s courtroom. The fifth-grade students learn about the Fifth and Sixth Amendment and then play the part of attorneys or witnesses during the mock trial.
The judge in Defendant Robert Arthur Clark’s case had participated in this program as an attorney and then as a judge for over thirteen years. The year at issue that Clark identified as forming bias against him due to the judge favoring the prosecutor was the prosecutor’s first year volunteering in the program. The judge did not ask him to participate. Judges and attorneys, however, are generally encouraged to do community outreach.
Clark alleged this bias manifested itself in the judge adopting the prosecutor’s juror questionnaire with minor changes without considering defendant’s questionnaire. Based on this, Clark alleged that the judge “demonstrated a bias in favor of the prosecutor and against defendant and/or defense counsel” in violation of his Fourteenth Amendment to the United States Constitution. This bias violated the judge’s duty of neutrality, or so Clark argued.
In the underlying case involving Mr. Clark, the appellate court stated: “The facts underlying defendant’s case are irrelevant to the contentions he raises on appeal. Suffice it to say that defendant, his girlfriend, and his friend used methamphetamine nearly every day. They heard a female acquaintance had been raped and the that the female acquaintance was also coming into a large inheritance. Under a misguided attempt to share in her inheritance, defendant, along with his girlfriend and friend, confronted the alleged rapist and defendant shot and killed him.”
“While the victim of the shooting declared, as he was dying, that it was defendant who shot him, and defendant’s girlfriend and friend corroborated that testimony through their testimony at trial, other witnesses saw on defendant’s truck at the scene of the shooting, and not the vehicle defendant occupied or defendant himself.”
The jury found defendant guilty and sentenced him to state prison for 40 years to life, comprised of fifteen years to life for second-degree murder and 25 years to life for the firearm-use enhancement causing death.
The trial court denied Clark’s motion for new trial based on the judicial bias claim. Clark then appealed to the Third Appellate District Court in Sacramento.
The Third Appellate District explained that the legal standard for showing unfair bias is that defendant must show “there is a serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence” on the outcome of the case. Caperton v. A.T. Massey Coal Co. (2009) 556 U.S. 868, 878.
The court further discussed how California Code of Civil Procedure § 170.1(a)(6)(A)(iii) provides “an explicit ground for judicial disqualification based on a public perception of partiality, that is, the appearance of bias.” People v. Freeman (2010) 47 Cal. 4th 993, 996-999, 1001. Freeman and Caperton set the bar high, holding that disqualification is mandatory when “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” Caperton, at 977, Freeman at 996.
Here, the judge’s co-participation in a civics education program with the prosecutor, consisting of four classroom visits and a two-hour mock trial did not reflect a constitutionally intolerable possibility that the judge harbored an interest in the outcome of defendant’s trial. The judge did not have a personal relationship with the prosecutor outside of court or the legal-related civics education program. The judge did not socialize with the prosecutor on a different level than the judge socialized with other attorneys, which was generally confined to bar event and other legal-based organizations.
Therefore, the Third Appellate District affirmed the trial court’s denial of the motion for new trial based on judicial bias.
For more information about judicial bias issues, please click on the following articles: