Public Defender Suggests Office Would Disqualify Judge Parish from Presiding Over Criminal Case Defended by Her Office

Deputy District Attorney Clinton Parish is running against sitting Yolo Superior Court Judge Daniel Maguire in a contested election that will be held this June.  Mr. Parish has focused much of his campaign on what he calls his strong record of criminal law experience, which, given AB 109 (California's realignment law) and recent retirements on the bench, is in short supply.

In a recent debate presented by the Yolo County Bar Association, Mr. Parish argued, "There is a void there."

"Because of that, a judge's discretion is even more important," Mr. Parish said, as reported by the Davis Enterprise. "I've got a baseline of what a case is worth."

However, as Judge Maguire himself noted, even if Mr. Parish wins the election, he would not handle criminal cases for at least a few years, in order to avoid real or perceived conflicts of interest.

Yolo County's presiding Judge Dave Rosenberg told the Vanguard, "A new judge would normally receive an initial assignment outside their area of specialization."

Judge Rosenberg reiterated the need to avoid both legal and ethical conflicts.

However, he also argued, "Judges need to be generalists - particularly on a small bench like Yolo - where we are constantly backing each other up."

Thus, a Judge Clinton Parish would begin his tenure in a civil department or a family law department.

"In the past, a deputy district attorney who becomes a judge would typically receive an assignment in the civil department or the family law department, or any department other than criminal law," Judge Rosenberg told the Vanguard.

Adding fuel to that fire is what some attorneys like Woodland Attorney Richard Lansburgh call an acerbic personality.

Mr. Lansburgh, who says he practices general law which includes family and civil, told the Vanguard that Mr. Parish prides himself on being a "zealous advocate" (Mr. Parish's own words from the recent debate) but the role of a judge is more like that of a mediator.

Public Defender Tracie Olson added more fuel to the fire in a statement to the Vanguard last Thursday.

She told the Vanguard, "Mr. Parish touted his criminal law experience as the one factor, above all others, that makes him the best candidate for judge."

More pointedly, she suggested strongly that her office would use its prerogative under Civil Code of Procedure section 170.6, which allows for the preemptory disqualification of judges.

"All defense attorneys have the prerogative to disqualify any judge from any criminal case," Ms. Olson continued.  "Given my office's experience with Deputy District Attorney Parish over the last ten years, I find it highly presumptuous for Mr. Parish to conclude that my office will not regularly exercise this prerogative."

Given the large percentage of cases that the Public Defender's Office represents in Yolo County, Ms. Olson concluded, "In essence then, should he get elected, Mr. Parish will be a judge with criminal law experience who cannot preside over criminal cases."

Other defense attorneys the Vanguard spoke with had a more mixed view.

One attorney, declining to be identified, believed that very few criminal defense attorneys, if any, would let him preside over their client's case should he be elected.

Many we spoke to cited negative experiences with Mr. Parish.

However, others like Richard Lansburgh were more mixed in their assessment.  Mr. Lansburgh has joined many defense attorneys, both in and out of the Public Defender's office, in supporting Judge Maguire for reelection.

But he argued that over time, once Mr. Parish gets the opportunity to actually preside over criminal cases, he may tone it down.

He said he will take a wait-and-see approach, recognizing that a Judge Clinton Parish will not begin in criminal law anyway and his mindset may begin to change, once removed from a position of advocacy.

Meanwhile, Clinton Parish, in a statement to the Vanguard Monday afternoon, continued to assert that his criminal law experience will be an asset in Yolo County.

"With the passage of AB 109, criminal law experience will be paramount in our criminal justice system.  As time passes, having a judge with criminal law experience will benefit Yolo County," Mr. Parish emailed the Vanguard.

Richard Lansburgh noted a number of Deputy DA's turned judges, and many of them proved to be "fair and balanced."

In particular, he cited Judge William Lebov. Judege Lebov's own former colleagues eventually turned against him, using the 170.6 motion to remove cases from his courtroom.  This would eventually lead to the judge's retirement.

More recently, Judge Paul Richardson, who Mr. Lansburgh believes is pretty fair, has been "papered" (a colloquial expression for the frequent strategic use of a 170.6 motion) by the District Attorney's office.

Rod Beede works both as a private attorney and contract attorney through the county, a position known as the Conflict Counsel because they take indigent and public defense cases that cause conflicts of interest in the Public Defender's office.

He acknowledges up front that he is a strong supporter of Judge Dan Maguire's retention.  He calls Judge Maguire "very even tempered and courteous to all; he has a real talent for civil, where he will be for at least another two years."

He added, "When anyone seeks to unseat a sitting judge, I've always felt there had to be a real issue, something fundamentally wrong with the current judge.  None of that applies to Judge Maguire."

Meanwhile, Judge Maguire may lack criminal experience, but Clinton Parish lacks civil experience, where he would likely be for at least three years.

Mr. Beede argued, "It's more than odd that he'd attack Judge Maguire for no real criminal law experience.  It's simply wrong."

In fact, Judge Maguire, as Judge Rosenberg alluded to, has had to step in and do some criminal law calendars.  Mr. Beede said he has done several preliminary hearings, a few criminal calendars and arraignments.

"He's been fine, and I believe both sides would agree that he has done fine," he said.

Mr. Beede also disputes that there is a lack of judges experienced in criminal law on the bench.

"Currently, Commissioner Beronio, Judge Mock and Judge Richardson came from the D.A.s office," he said and noted that Judge David Reed came from the defense bar and Janet Gaard came from the criminal appeals department of the state Attorney General's office.

Mr. Beede said, "I often wonder if the real reason for respected, but very controversial Deputy DA's challenging a judge is that there are not enough district attorneys on the bench."

He hearkened back to the failed candidacy of James Walker against Judge Timothy Fall back in 2008.

"When Jim Walker ran against Judge Tim Fall, judicial temperament was his issue.  He attacked Judge Fall intensely, even viciously and in most of our minds very unfairly," he said.  "But there was a message, seemingly be kinder and gentler with our deputies."

Judge Fall to this day is known to be abrasive and even cantankerous on the bench, with little empathy or patience for "suffering fools."

Mr. Beede notes, "Jim Walker had no real backing and very little money.  And he lost, big time."

Richard Lansburgh believes that Clinton Parish, who has garnered support from his boss Jeff Reisig, Sheriff Prieto and a number of law enforcement organizations around the county will do somewhat better than Mr. Walker electorally - but not much.  He told the Vanguard tha he thinks Mr. Parish will lose 65-35, as opposed to the 70-30 that Mr. Walker was defeated by.

Mr. Beede believes that Mr. Parish will suffer a similar fate.

"So far," he said, though he thinks it is still somewhat early, "he's mounted no real campaign and does not appear to be in the public eye much.  That is usually fatal.  Most people, if there is no real issue, vote for the incumbent."

He added, "And when the incumbent has money and great support, it seems a real blow to unseating an incumbent."

However, Mr. Beede stops short of blanket disqualification.

He noted again that Mr. Parish would do civil law for a several years, but added, "I have never done this and find it distasteful when it's done.  Mostly the D.A.'s office (under both Henderson and Reisig) has done this whenever a decision or two go against them and they're mad."

He adds, "The public defender's office has done this sporadically.  I'm against it.  In a really tough case where I think a judge has really done the wrong thing  I appeal, try to get them to modify their view or at the least make them really know they've done the wrong thing."

He continued, "But blanket disqualification is a bad idea in general.  Judges hate it and the next judge that gets it has a tendency to make the blanket disqualifier feel it, one way or another.  The power, after all, is in the robe."

"I've had a good professional relationship with Clinton Parish which I think will continue after his campaign goes the way of the Titanic, just like Jim Walker's did," he said.

Still, many, including Dan Maguire himself, question Mr. Parish's impartiality as he noted Mr. Parish's claim that he is a "zealous advocate" for victims of crime.  After all, a judge cannot be an advocate for one side or the other, but rather must be an impartial mediator.

---David M. Greenwald reporting

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