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Court of Appeal:
Link Between Judge, DDA Too Tenuous to Require Recusal
By a MetNews Staff Writer
A judge did not commit constitutional error in declining to recuse herself after the defendant, who was about to go on trial for murder, announced his discovery that the jurist and the prosecutor in the case were co-participants in a civics education program, the Third District Court of Appeal has declared.
The opinion, filed Thursday, affirms the May 15, 2019 second degree murder conviction of Robert Arthur Clark, rejecting his contention that San Joaquin Superior Court Judge Xapuri Villapudua was derelict in failing to step aside based on her link to the deputy district attorney who was prosecuting him. Villapudua, the prosecutor—identified in a District Attorney’s Office press release as Ted McGarvey—and a defense lawyer taught deputy fifth-graders about constitutional precepts and the criminal justice system.
Justice Ronald B. Robie said in a published portion of Thursday’s opinion:
“[W]e consider whether the trial judge’s relationship with the prosecutor, which was based on a single instance of co-participation in a civics education program consisting of four classroom visits and a two-hour moot court session, reflects a constitutionally intolerable possibility that the judge harbored an interest in the outcome of defendant’s trial. We conclude that it does not.”
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ROBERT ARTHUR CLARK second-degree murderer |
No Personal Relationship
He noted that Villapudua and the prosecutor did not have a personal relationship and did not socialize other than at bar events and other gatherings within the legal community.
“The fact that some of the judge’s and prosecutor’s interactions occurred during defendant’s trial does not change this result,” he said. “There was limited contact outside the courtroom and no evidence any of it was related to defendant’s case; all evidence was to the contrary. Isolated opportunities to communicate about unrelated events, even if occurring during defendant’s trial, do not in and of themselves demonstrate a constitutionally problematic interest.
“Defendant’s claim of judicial bias of constitutional magnitude is without merit; he cannot point to an interest held by the trial judge that caused her to disregard judicial neutrality.”
Removal of Juror
In an unpublished portion of the opinion, Robie found unmeritorious Clark’s contentions that the judge erred in uncovering the identity of the hold-out juror and bumping him off the case.
The jurist wrote:
“Here, the trial court found Juror No. 1 was not credible in her demeanor or in her answers to the court’s questions. We must defer to this credibility finding….Juror No. 1’s untruthfulness pertained to her status as a crime victim and that she had previously reported being the victim of a crime to police. Nothing came of Juror No. 1 ‘s reports, potentially leaving her with a distrust and bias toward law enforcement or belief in vigilante justice. Given Juror No. 1 ‘s lack of candor and the trial court’s credibility finding, we conclude the record shows as a demonstrable reality that good cause existed to disqualify Juror No. 1.”
New-Trial Motion
It emerged at a hearing on a motion for a new trial in December 2019 that Clark and the discharged juror were wed two months earlier.
Villapudua denied the new-trial motion which was based on Clark’s contention that Juror No. 1 was improperly removed, and also on her declaration concerning alleged misconduct on the part of Juror No. 7. She reported that Juror No. 7 relied on his expertise as an engineer in proclaiming that Clark had to have been the shooter based on his height.
The declaration relates:
“The jury discussed the height of the shooter; that it had to be someone tall. The Engineer discussed the height and angle of the shot; he was doing a lot of math up on the wall. I felt the jury was lost with the engineer’s math. The engineer said he knew math; he was always trying to figure things out, with his math problems.”
Lack of Prejudice
Robie said the juror did engage in improper activity by relying on his expertise as an engineer to put forth the opinion that the bullet trajectory supported a conclusion that a tall person shot the victim, and in using math equations to prove to the rest of the jury his theory was correct, where no evidence was introduced at trial pertaining to the bullet’s trajectory. But, he there was no substantial likelihood that any juror was improperly influenced to the defendant’s detriment where the jurors indicated they did not understand the math and no one changed his or her vote because of the juror engineer’s purported expertise and opinion.
Robie’s opinion was filed two years to the day after Clark, then 29, was sentenced to 40 years to life in s prison for the murder of victim William Sodders, 60. District Attorney Tori Verber Salazar issued a statement following the sentencing, warning:
“I have vowed to prosecute the drivers of crime in this county, in particular, those who use firearms to kill. Our deputy district attorneys arc well equipped to handle these types of cases, and the judges in this county arc willing to impose the strongest penalties. I hope people will think long and hard before resorting to gun violence to settle personal disputes.”
The case is People v. Clark, 2021 S.O.S. 6754.
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