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post #5086 of 5582
Quote:
Originally Posted by Fuuma View Post

Considering our ability to pay lawyers is, all things being equal, a major factor in the end result I'd say this wasn't something we needed to become comfortable with but a design element.

You raise a good point.
post #5087 of 5582
Quote:
Originally Posted by Fuuma View Post

In other words you're saying this is similar to all those jury choosing strategies lawyers employ and part of the judicial game?

Yes. I should note to avoid creating unnecessary confusion that this is a procedural rule that exists in some form or fashion in various state courts. It doesn't exist in federal court. And in addition to not existing everywhere, I suspect there are many variations in how it works from jurisdiction to jurisdiction.

In some ways it's even more unfettered than jury challenges. There are well-established procedures for challenging peremptory strikes of jurors when there's reason to believe those peremptories have been exercise on Constitutionally improper grounds (race, sex, etc.) These sorts of judicial challenges, not so much -- at least in my experience.
post #5088 of 5582
Quote:
Originally Posted by Piobaire View Post

You raise a good point.

Now that I think of it I was referring to the US system and its campaigning and money spending so one can exist without the other, German judges don't have to go through an election process and obtain financing, going as far as the profession being a separate career path with lifetime nomination (I think) thus existing at an extreme from USA judges but you pay lawyers in Germany like in most countries.
post #5089 of 5582
Quote:
Originally Posted by lawyerdad View Post

Yes. I should note to avoid creating unnecessary confusion that this is a procedural rule that exists in some form or fashion in various state courts. It doesn't exist in federal court. And in addition to not existing everywhere, I suspect there are many variations in how it works from jurisdiction to jurisdiction.

In some ways it's even more unfettered than jury challenges. There are well-established procedures for challenging peremptory strikes of jurors when there's reason to believe those peremptories have been exercise on Constitutionally improper grounds (race, sex, etc.) These sorts of judicial challenges, not so much -- at least in my experience.

So let's say I'm defending someone who (allegedly) gay-bashed 3 people I could, in theory, avoid having a known gay judge without needing to justify it by some other factor than said judge being gay?
post #5090 of 5582
So to bring this back to the case at hand...did the judge display a bias or did the judge render a sentencing many in the public disapprove of and this is what made the prosecutor demand reassignment? Also, even CNN is saying this move is highly unusual in occurrence. Is this correct?
post #5091 of 5582
Quote:
Originally Posted by Fuuma View Post

So let's say I'm defending someone who (allegedly) gay-bashed 3 people I could, in theory, avoid having a known gay judge without needing to justify it by some other factor than said judge being gay?
Under the rule quoted by w/a above, I'd say yes.
In CA, which is the only state I have significant experience with, the practical answer is still yes but the doctrinal answer is a bit murkier.
Technically, the peremptory challenge (again, speaking only of CA law) is supposed to be based on a good faith belief that the judge may be prejudiced against the attorney, the attorney's firm, or the client. But there's no definition given for what it means to be "prejudiced against" an attorney or party, and more to the point there's really no way to test the bona fides of that purported good faith belief.
Quote:
Originally Posted by Piobaire View Post

So to bring this back to the case at hand...did the judge display a bias or did the judge render a sentencing many in the public disapprove of and this is what made the prosecutor demand reassignment? Also, even CNN is saying this move is highly unusual in occurrence. Is this correct?

I think "CNN . . . is this correct?" is pretty much all you ever need to type, no? No, CNN is not correct.


Depends on your definition of bias, I guess. I have a bias against lima beans. Lawyers exercise their reassignment rights all the time. Prosecutors, included. I can think of a number of instances where individual prosecutors or whole offices had pretty much a standing policy of challenging particular judges who they believed to be light sentencers, generally pro-defense, temporarily on the shit list because of how a particular case was handled, etc. So no, if CNN is saying it's highly unusual for prosecutors to exercise such strikes against judges, they're full of shit. (Again, only as a matter of California practice.)


To your first question . . . we all have preconceptions, values, what have you that filer how we perceive and respond to things.
post #5092 of 5582
Point of order: it was a prosecutor that wanted the change hence no client to have bias against.

Quote:
Originally Posted by lawyerdad View Post

Under the rule quoted by w/a above, I'd say yes.
In CA, which is the only state I have significant experience with, the practical answer is still yes but the doctrinal answer is a bit murkier.
Technically, the peremptory challenge (again, speaking only of CA law) is supposed to be based on a good faith belief that the judge may be prejudiced against the attorney, the attorney's firm, or the client. But there's no definition given for what it means to be "prejudiced against" an attorney or party, and more to the point there's really no way to test the bona fides of that purported good faith belief.
post #5093 of 5582
Quote:
Originally Posted by Piobaire View Post

Point of order: it was a prosecutor that wanted the change hence no client to have bias against.

Well, I was actually paraphrasing from the civil rule, thus the reference to clients, so the phraseology may not be exactly on point.

But again, if the operative question is "is CNN correct that this is highly unusual", then the answer is no, they're full of shit because it happens all the time.


This isn't to prove or disprove anything so much as to provide some background color to anyone interested, mostly because the discussion about judicial reassignments reminded me of this relatively recent brouhaha. Every once in a while this comes up in a high profile case, the press treats it like something unusual, and everyone gets grossed out by the CGI-enhanced close-up shots of the sausages being made.
Sorry, forgot the link to which this last paragraph was referring:
http://www.ocregister.com/articles/court-713715-prosecutors-attorney.html
Edited by lawyerdad - 6/16/16 at 1:58pm
post #5094 of 5582
Quote:
Originally Posted by Piobaire View Post

So this judge now has a known bias? What's the bias exactly? He's pro-rape?

I hear the judge had comments on the Stanford case. Anyone have a link so I can read the comments? Maybe the bias is exposed there?

He's pro Stanford, athlete, white privilege, cis-gendered, hetero-normative rapist, obviously! It'll be the cornerstone to his next campaign platform.

As far as the judge's comments

"A spokesman for Santa Clara superior court said the judge was barred from commenting on this case while there is an appeal pending. After sentencing, Turner’s attorneys notified court that they intend to appeal the conviction."

Though that makes me think it's more about commenting on the case in general after the fact. Not the comments he gave during sentencing. Will look for those if available.
post #5095 of 5582
Thread Starter 
Removing a judge from a case here in PA is damn near impossible. The judge you want to kick off is the one who decides whether or not to remove him/herself. Then you don't get an interlocutory appeal on that, so you have to lose then appeal the judge's decision after your client is serving his sentence. And appellate courts give great deference to trial court judges' decision on removal.

It's fucking garbage, and we often wind up with ignorant pro-prosecutor judges who throw children in kiddie prison in exchange for money. Or molest their daughters at a Hilary Duff concert. Fucking scum.
post #5096 of 5582
Quote:
Originally Posted by Harold falcon View Post

Removing a judge from a case here in PA is damn near impossible. The judge you want to kick off is the one who decides whether or not to remove him/herself. Then you don't get an interlocutory appeal on that, so you have to lose then appeal the judge's decision after your client is serving his sentence. And appellate courts give great deference to trial court judges' decision on removal.

It's fucking garbage, and we often wind up with ignorant pro-prosecutor judges who throw children in kiddie prison in exchange for money. Or molest their daughters at a Hilary Duff concert. Fucking scum.

Yeah, that's basically the rule here when you're trying to get the judge removed for cause. When I first started practicing here the fact that you basically get a peremptory challenge you can exercise against the first-assigned judge (or the second-assigned judge, if your opponent struck the first judge) struck me as weird.
post #5097 of 5582
Quote:
Originally Posted by Piobaire View Post

Point of order: it was a prosecutor that wanted the change hence no client to have bias against.
Not true- the client is the State. And in the minds of prosecutors, giving light sentences to people convicted of three felonies is bias against their client's interest of putting horrible people in a cage for as long as possible.

I'd also mention that most prosecutors I've known are gaping assholes who consider even the tiniest opposition to their opinion completely unacceptable.
post #5098 of 5582
Quote:
Originally Posted by SixOhNine View Post


Not true- the client is the State. And in the minds of prosecutors, giving light sentences to people convicted of three felonies is bias against their client's interest of putting horrible people in a cage for as long as possible.

I'd also mention that most prosecutors I've known are gaping assholes who consider even the tiniest opposition to their opinion completely unacceptable.



There's a defense attorney or two that think the same way. :hide:

post #5099 of 5582
True enough.

In all honesty, most litigators are pretty dickish, but prosecutors have an unequalled power to ruin lives.
post #5100 of 5582
Quote:
Originally Posted by SixOhNine View Post

True enough.

In all honesty, most litigators are pretty dickish, but prosecutors have an unequalled power to ruin lives.

This is very true. I'm good friends with a guy that was a city councilman for 15 years from the late 80s until around Y2K. Apparently his pissed of the city prosecutor pretty hard, as something fairly minor came up regarding him and a real estate transaction, and he ended up with a felony indictment where none of the parties involved wanted any charges filed.
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