1 Jeff Adachi, SBN #121287

Public Defender
FILEDSupcnoT Court of Califorrua
Pr»ni*i^O
2 City and County of San Francisco
Matt Gonzalez
3 Chief Attorney SEP 1 7 2018
Deputy Public Defender
4 555 Seventh Street
BY:
5 San Francisco, CA 94103 Clerk
Direct:(415) 553-9520
6 Email; jeff.adachi@sfgov.org
7 Attorneys for Carlos Argueta

8
Superior Court of California
9 San Francisco County
10
11 People of the State of Court No.: 17007655
California, SCN: 227478
12
Plaintiff,
13 Challenge for Cause
vs.
14 [Code of Civ. Procedure §
15 Carlos Argueta, 170.1]

16 Defendant.
Date: 9-17-18
17 Time: 4:00 p.m.
18 Dept; 16

19 The Honorable Ethan Schulman has exhibited bias and prejudice in

20 the past toward defense attorneys and persons of Latino descent.
21 Argueta moves to disqualify Judge Schulman under Code of Civil
22 Procedure 170.1.
23 Points and Authorities
24
1. Argueta’s motion for disqualification is timely.
25
A party must raise a motion for a judge’s disqualification under Code
26
of Civil Procedure § 170.1 “at the earliest reasonable opportunity after
27
28

CCP 170.1 Motion

Argueta / Court No. 17007655
1 the party becomes aware of the disqualifying facts. The obligation to
2 raise a disqualification motion “applies . . . when the facts constituting
3 the disqualification are discovered before a case is submitted for
4 decision”'^
5 Here, Argueta’s non-statutory motion to dismiss was set before the
6 Hon. Judge Tracie Brown in Department 16 for hearing on September
7 28, 2108. Argueta then received an email from the court indicating that
8 the case would be transferred for hearing on the same date in
9 Department 25, where Judge Schulman currently hears trials. Argueta’s
10 counsel emailed the clerk that he would be filing a challenge against
11 Judge Schulman. The court then instructed the parties to appear in
12 Department 16 on September 18, 2018 at 4 p.m. Under Code of Civil
13 Procedure § 170.1, Argueta’s motion for disqualification of Judge
14 Schulman is timely.3
15
2. Disqualification is proper because Judge Schulman has
16 exhibited bias and prejudice toward defense counsel.
17 The California Judicial Code of Ethics [hereafter “The Code”] as well

18 as statutory law compels Judge Schulman’s disqualification here.

19 The Code sets forth six core canons, and establishes and governs
20 standards for the conduct ofjudges throughout the state. The Code is
21 based on “the precepts that judges, individually and collectively, must
22
1 North Beverly Park Homeowners Ass’n V. Bisno (2007) 147 Cal.App.4th
23
762, 769.
24
2 Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 655-
25 56.

26 3 While Judge Schulman heard the Johnson motion/Penal Code § 939.71

motion previously, his hearing that motion does not preclude a challenge
27 for cause on the non-statutory motion to dismiss on prosecutorial
28 misconduct. See Code of Civil Procedure § 170.3 (c)(1); Alhusainy v.
Superior Court[2006] 143 Cal.App.4th 385, 394.

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Argueta / Court No. 17007655
1 respect and honor the judicial office as a public trust and strive to
”4
2 enhance and maintain confidence in our legal system.
on
3 As a result of Proposition 190, enacted by legislative referendum
4 November 8, 1994, the provisions of the Code are mandatory and binding
5 on all judges in California.s Judges can be censured or removed from
6 office for both willful misconduct and prejudicial misconduct. While

7 willful misconduct involves bad faith, prejudicial misconduct is “conduct

8 which a judges undertakes in good faith but which nevertheless would

9 appear to an objective observer to be not only unjudicial conduct but
10 conduct prejudicial to the public esteem for the judicial office.”^
11 This Code is reinforced by § 170.1 of the Code of Civil Procedure,

12 which provides that “[b]ias or prejudice toward a lawyer in the proceeding

13 may be grounds for disqualification.”^ Code of Civil Procedure § 170.1
14 further provides that “[a]judge shall be disqualified if . . . [a] person
15 aware of the facts might reasonably entertain a doubt that the judge

16 would be able to be impartial.

17 The standard for disqualification is “not limited to actual bias”^ and

18 includes potential bias or prejudice. Potential bias or prejudice must be

19 “clearly be established by an objective standard.”io Bias or prejudice
20

21 4 California Code of Judicial Ethics (2001)(amended by the Supreme

Court of California effective December 13, 2000).
22
5 See California Constitution, Art VI, §18(m) stating that “[t]he Supreme
23 Court shall make rules for the conduct of judges.”
24 6 Broadman v. Commission on Judicial Performance (1988) 18 Cal.4th
25 1079, 1092 (citations omitted.).

26 7 Code Civ. Proc., § 170.1(6)(B).

8 Code Civ. Proc., § 6(A)(iii) [emphasis added].
27
9 Christie v. City ofEl Centro (2006) 135 Cal.App.4th 767, 776.
28
10 People V. Chatman (2006) 38 Cal.4th 344, 363.

- 3- CCP 170.1 Motion

Argueta / Court No. 17007655
1 consists of a “mental attitude or disposition of the judge towards a party
”11
2 to the litigation.
3 Here, as shown in the attached Declaration of Counsel, Judge
4 Schulman has violated several canons by showing bias against the

5 defense and Latino persons, while at the same time showing extreme
6 favoritism towards the prosecution.12 More than potential bias, defense
7 counsel’s affidavit and the attached declarations, made a part of this

8 challenge and incorporated by reference herein, establishes that Judge

9 Schulman has exhibited actual bias and prejudice against the defense,

10 and that he would not be a fair and unbiased judge to decide a motion

11 that is based on prosecutorial misconduct.

12 The defense has also established that Judge Schulman has exhibited

13 racial bias against a Latino defendant and his lawyer in a prior trial,
14 Argueta is Latino, and the declaration of attorney Elizabeth Camacho
15 establishes that Judge Schulman has expressed bias against Latino
16 persons and exhibited racial insensitivity.
17

18
Pacific Etc. Conference of United Methodist Church v. Superior Court
19 (1978) 82 Cal.App.3d 72, 86, citing Evans v. Superior Court(1930) 107
Cal.App. 372, 380.
20
12 See Canon 2(A) “A judge shall respect and comply with the law and
21
shall act at all times in a manner that promotes public confidence in the
22 integrity and impartiality of the judiciary; Advisory Committee
Commentary to Canon One (“The integrity and independence ofjudges
23
depend in turn upon their acting without fear or favor.”); Canon 3 (B)(2)
24 (“A judge shall be faithful to the law regardless of partisan interests,
public clamor, or fear of criticism, and shall maintain professional
25
competence in the law.”); Canon 3(b)(5) (“A judge shall perform judicial
26 duties without bias or prejudice.”)
27 13 See Declarations of Rebecca Young and Eric Fleischaker, attached
hereto as Exhibits A and B.
28
14 See Declaration of Elizabeth Camacho, attached hereto as Exhibit C.

-4- CCP 170.1 Motion

Argueta / Court No. 17007655
 1 Based on the attached declarations, Argueta has made an objective
2 showing of bias that a person aware of the trial court’s conduct would
u
3 reasonably entertain a doubt that the judge would be able to be
”15
4 impartial.
5 Conclusion
6
Argueta respectfully requests that his motion to challenge Judge
7
Schulman for cause under Penal Code § 170.1 be granted.
8
9 Dated: September 17, 2018 Respectfully submjfted
10
11 l4
Jeff Adachi
t

12
Public Defender
.13 Attorney for Carlos Argueta
14
15
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17
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See Code Civ. Proc., § 6(A)(iii).

-5- CCP 170.1 Motion

Argueta / Court No. 17007655
 Declaration of Counsel
1
2
I, Jeffrey G. Adachi, declare:
3
1. I am a member in good standing of the California Bar. I am the
4
Public Defender of the City and County of San Francisco and
5 counsel of record for the defendant in this case. I have been an
6
attorney for 32 years and have served as the elected Public
7 Defender since 2002. Prior to that, I was the office’s Chief Attorney
8
and a Deputy Public Defender for 15 years. I have handled over
9
3,000 cases and 150 jury trials. I have argued and tried cases
10
before many different judges. Based on my experience as a trial
11
lawyer, I do not believe that my client, Carlos Argueta, would
12 receive a fair hearing on the non-statutory motion to dismiss before
13
Judge Ethan Schulman.
14 2. I am informed and believe that facts exist such that an average
15
person aware of those facts might reasonably entertain a doubt
16
that Judge Schulman would be able to be impartial towards myself
17
and my client. I am informed and believe that Judge Schulman is
18
extremely biased against criminal defendants and Latinos.
19
3. According to the attached declarations. Judge Schulman has:
20 a. Exhibited racial insensitivity and bias against Latinos. As set
21 forth in the declaration of Elizabeth Camacho, Judge Schulman
22
made a racially insensitive statement toward a Latino defense
23
lawyer, exclaiming “when is this telenovela going to end?” His
24
statement referenced soap operas produced in Latin America,
25
and was clearly made to ridicule and disparage Ms. Camacho
26
based on her race and ethnicity. Were Ms. Camacho not of
27
Latino decent. Judge Schulman would not have made such a
28
statement. Judge Schulman also bullied the Latino lawyer

-6 CCP 170.1 Motion

Argueta / Court No. 17007655
1 throughout trial. “During opening statements, he continually
2 interrupted and interposed his own objections, even though the
3 Assistant District Attorney did not object. Throughout the trial,
4 he interrupted me during my questioning of witnesses and
5 presentation before the jury.” Camacho also stated that
6 “[tjhroughout the trial. Judge Schulman criticized me and
7 interposed his own objections against me. His verbally assaultive
8 behavior, through his statements and objections, continued
9 throughout the trial. I have tried dozens ofjury trials in the
10 seven years I have practiced, and have never had a judge treat

11 me as Judge Schulman did during that trial.” Attorney Camacho

12 attests that Judge Schulman’s treatment of her during that case

13 evidenced his bias against Latinos: “I believe his treatment of me
14 was the direct result of bias against me because of my ethnic
15 background and that of my client’s. The prosecutor, who was a
16 Caucasian woman, was treated very respectfully. Judge

17 Schulman carefully listened to her arguments and never

18 interrupted her in the court. She was treated with deference
19 throughout the trial. But whenever I would speak. Judge
20 Schulman would treat with me with disdain and disrespect.

21 After the trial, the jurors commented that Judge Schulman

22 treated me poorly throughout the trial.”
23 b. Similar conduct found biased, resulting in censure.

24 I was trial counsel on People v. Spencer, where Judge Richard

25 Haugner, sitting on assignment in the San Francisco Superior
26 court, was assigned to hear a motion to dismiss 1 was handling.
27 During argument of the motion. Judge Haugner stated, “Do you
28 have something to add to those papers which isn’t in there.

-7 CCP 170.1 Motion

Argueta / Court No. 17007655
1 some brilliant case you found somewhere in the Upper Tokyo

2 Reports or somewhere that nobody knows about, tell me about

3 it.” I thereafter moved to disqualify Judge Haugner for cause.

4 The judge assigned to hear the disqualification motion found

5 that Judge Haugner’s comments showed that he was biased and
6 the motion was granted. The Commission on Judicial
7 Performance issued a public reproval against Judge Haugner.

8 The Commission found that “that Judge Haugner’s reference to

9 TJpper Tokyo Reports’ reflected insensitivity toward persons of

10 Japanese-American ancestry and was offensive to Mr. Adachi.
11 The commission further found that, regardless of Judge

12 Haugner’s intent in making the remark, it was suggestive of

13 racial or ethnic bias.” I believe that the comment made by Judge

14 Schulman to Elizabeth Camacho evidences the same type of

15 racial insensitivity and bias expressed by Judge Haugner in the

16 remarks he made to me.

17 c. Bias against defendants and defense counsel. Rebecca Young

18 is a criminal defense attorney who has practiced in the San

19 Francisco courts for over thirty years. She has tried over fifty

20 jury trials, including seven homicides. She has also handled and
21 tried cases in Contra Costa County, San Mateo, and federal

22 court. While Ms. Young has experienced “the stern demeanor of

23 many jurists,” she states that “Judge Schulman’s demeanor

24 towards criminal defendants and defense lawyers is not merely

25 stern, it is disdainful, and thus he conveys actual bias.” She

26 states that “[h]is perceptibly derisive tone and stare makes

27 appearing in his courtroom unpleasant and unsettling for
28 clients.” Ms. Young describes appearing before Judge Schulman

-8- CCP 170.1 Motion

.M:gueta / Court No. 17007655
1 in three 995 motion hearings. She states that even though the

2 district attorney filed no opposition and gave the defense no

3 notice of their arguments, Judge Schulman always ruled in the
4 prosecution’s favor. Judge Schulman would make arguments for
5 the prosecution “as well as arguments to use in trial,” giving the
6 example of Judge Schulman offering “a scenario of why a
7 complaining witness was in fear even though there was no such
8 testimony at the preliminary hearing.” Ms. Young relates a
9 specific case involving a 995 motion where the assistant district
10 attorney submitted a 995 dismissal motion without filing papers
11 and without making any argument. Judge Schulman denied the
12 motion. When the assistant district attorney elected to dismiss

13 all the charges. Judge Schulman became “perturbed” and

14 demanded an explanation, asking “on what grounds.” Judge
15 Schulman looked annoyed and in disbelief before dismissing the

16 charges. Judge Schulman’s actions, as recounted by Ms. Young,

17 demonstrates his lack of impartiality and constitutes conduct

18 unbecoming of a neutral arbitrator. As Ms. Young states, “Judge

19 Schulman disdains defense attorneys, defendants who appear in

20 his court, and routinely rejects defense motions for legal and
21 constitutional relief.” Given Ms. Young’s experience, I do not

22 believe that Mr. Argueta would receive a fair and impartial

23 hearing before Judge Schulman on his non-statutory motion for
24 dismissal based on prosecutorial misconduct.
25 d. Differential treatment of a defendant and prosecution

26 witness: Eric Fleischaker, an attorney who handles

27 misdemeanor cases in the San Francisco Courts, recently tried a

28 case before Judge Schulman. During the trial, his client was late

-9- CCP 170.1 Motion

Argueta / Court No. 17007655
1 to court due to traffic and had informed his lawyer of that fact,

2 which was conveyed to Judge Schulman. When the defendant

3 appeared, Judge Schulman waited until the jury came into the
4 courtroom and then admonished [the defendant] in their

5 presence,” stating that the defendant was the reason why the
6 trial was starting late and then said, “Thanks for joining us.” Mr.
7 Fleischaker noted that “[mjost judges take great precautions to
8 ensure that a client is not prejudiced, particularly when he or

9 she has provided a reason why he or she was not on time to

10 court.” Mr. Fleischaker also said that when a prosecution

11 witness was late to court, and did not contact the prosecutor,

12 causing the court to have to recess the trial, “Judge Schulman

13 made no statements admonishing the witness or even asking her

14 whereabouts or why she failed to come to court.” Mr. Fleischaker

15 concluded “I believe that Judge Schulman treated the defendant

16 differently than the prosecution witness because he favors the

17 prosecution over the defense.” 1 believe that Judge Schulman’s
18 differential treatment of prosecution witness and the defendant
19 in response to both being late for court shows his bias against
20 criminal defendants and in favor of the prosecution, and that

21 this bias would affect his ability to fair decide the motion to
22 dismiss in Mr. Argueta’s case.
23
4. Judge Schulman has demonstrated, by his rulings, actions, and
24
attitude towards defense counsel and Mr. Argueta, that he is biased
25
against him. Based on the attached declarations, a member of the
26
public would conclude that Judge Schulman favors the prosecution
27
and harbors bias against defendants and persons of Latino
28

- 10 - CCP 170.1 Motion

Argueta / Court No. 17007655
1 descent. Defense counsel requests that Judge Schulman recuse
2 himself in this matter pursuant to Code of Civil Procedure § 170.1.
3
I declare under penalty of perjury under the laws of the State of
4
California that the foregoing is true and correct, except as to those
5
facts stated on information and belief, and as to those facts, I
6
believe them to be true.
7
8 Executed on September 17, 2016 at San Francisco, California.

9
10 Dated: September 17, 2016 Respectfully Submitte
11
12 >1
Jeff Adachi
13
Public Defender
14 Attorney for Carlos Argueta
15
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11 - CCP 170.1 Motion

.Mrgueta / Court No. 17007655
1 Proof of Service
2 I say:
3 I am over eighteen and not a party to this action. My business address
4 is 555 Seventh Street, San Francisco, California 94103.
5 I caused to be filed and served the attached document on
6 Assistant District Attorney Adam Maldonado
San Francisco District Attorney
7 850 Bryant Street, 3rd Floor
Francisco, CA 94103
8

9 I declare under penalty of perjury that the foregoing is true and

10 correct.
11 Executed on in San Francisco, California.
12
i
13

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12 - CCP 170.1 Motion

Argueta / Court No. 17007655
/
 Declaration of Rebecca S. Young

I, Rebecca S. Young, am an attorney licensed to practice in the State

of California since 1985. I am a Deputy Public Defender with the San
Francisco Public Defender’s Office, where I have worked since 2003.

Before joining the Public Defender’s Office, I had a private criminal

defense practice and taught Criminal Trial Skills at New College and
Golden Gate University Schools of Law. Currently, I am in the Research

Unit, where I handle research and writing assignments and carry a small

caseload of serious felony cases.

In my thirty plus years of practicing criminal law, 1 have appeared in

front of over one hundred judges and have handled thousands of

criminal cases. 1 have tried 53 cases to verdict, in juvenile, state, and

federal court, including seven homicide cases. I have tried cases in what

are commonly deemed more conservative counties than San Francisco,

including Contra Costa County (14 misdemeanor trials, one murder

trial), San Mateo County (two serious felony trials) and in federal court

with Judge William Alsup, and Judge Orrick. I have experienced the
stern demeanor of many jurists. But Judge Schulman’s demeanor
towards criminal defendants and defense lawyers is not merely stern, it

is disdainful, and thus he conveys actual bias. His perceptibly derisive

tone and stare makes appearing in his courtroom unpleasant and

unsettling for clients.

In 2017, I appeared before Judge Ethan Schulman in three 995

motions and one 1538.5 hearing. In each 995, Judge Schulman ruled

against the defense even though the district attorneys filed no Opposition

and gave the defense no notice of their arguments in Opposition.

Most judges require that when a motion such as a Penal Code 995

motion is filed, the prosecution, if opposing, must file a written response.

When Judge Schulman held court as the law and motion judge, it

became the practice among many district attorneys to not bother with

written opposition. They didn’t have to, not only because Judge

Schulman routinely denied our 995 motions, but because in his ruling

he would make arguments/or the prosecution against the 995 as well as

arguments to use at trial. For example, he would offer a scenario of why a

complaining witness was in fear even though there was no such

testimony in the preliminary hearing transcript.

In one Stanton-Merrill motion that I filed for a client accused of

violating Penal Code sections 69, 148.10 and 245(c), Assistant District

Attorney Tom Cullinan did not file an Opposition. At the hearing, Judge
Schulman asked Mr. Cullinan for his comments. Mr. Cullinan submitted

the matter without argument, in apparent anticipation that Judge

Schulman would dismiss the three charges I was challenging. But Judge

Schulman still denied my motion. Mr. Cullinan then immediately moved

to dismiss the charges 1 had challenged. Perturbed, Judge Schulman

looked at Mr. Cullinan and demanded,“On what grounds?” Judge

Schulman looked annoyed and Mr. Cullinan stated, “In the interests of

justice.” Judge Schulman had a look of disbelief but then dismissed the

charges.

This incident shocked me. Even when the district attorney was not

opposing, I could not prevail. This case involved a police officer who had

a documented, extensive, serious record of explicit racial bias and use of

excessive force, and who testified at preliminary hearing without that

information being known to the defense. When Mr. Cullinan said,

“submitted” he stated in essence that he did not oppose the Stanton-

Merrill motion (or didn’t care to prevail) probably because he had no

intention of trying to a jury the charges involving this officer. Yet Mr.
Cullinan’s capitulation had no impact on Judge Schulman who did not

even inquire of Mr. Cullinan why he didn’t want to argue.

Judge Schulman is careful not to reveal his bias on the record, but it
has become evident to most of my colleagues and me that Judge

Schulman disdains defense attorneys, defendants who appear in his

court, and routinely rejects defense motions for legal or constitutional

relief.

I declare under penalty of perjury that the foregoing is true and

correct. This declaration was executed on September 14, 2018 at San

Francisco, California.

Rebecca S. Young
 Declaration, of Eric Fleischaker

I, Eric Fleischaker, am an attorney licensed to practice in the State of

California since 2015. I am currently employed as a Deputy Public
Defender at the San Francisco Public Defender’s Office, where I have

worked as an attorney since 2017. I am currently assigned to the

misdemeanor unit, where I handle misdemeanor cases and trials.

I recently had a trial assigned to and heard by Judge Ethan

Schulman. I have tried approximately 23jury trials and have appeared
before many judges. I have never seen a judge who appeared to be as
biased towards criminal defendants and in favor of the prosecution than

Judge Schulman.
The case that was heard before Judge Schulman was People v. Justin
Bond, Court No. 17004975. During that trial, Mr. Bond was late to court
due to traffic. My cUent had texted me that he was going to be late to
court and I informed the court that my cUent would late and the reason

why. When my client appeared, Judge Schulman waited until the jury
came into the courtroom and then admonished Mr, Bond in their

presence, stating that Mr. Bond was the reason why the trial was
starting late and then said “Thanks for joining us.”
Most judges take great precautions to ensure that a client is not
prejudiced, particularly when he or she has provided a reason why he or
she was not on time to court. But what struck me most is how he

treated a prosecution witness, forensic toxicologist Chinyere Williams.

Called as a prosecution witness, Williams was told by the prosecutor to
appear to testify, and she did not appear nor did she contact the
prosecutor. As a result, the court had to recess early and the prosecutor
called Ms. Williams the next day. Judge Schulman made no statements
admonishing th.e witness or even asking her whereabouts or why she
failed to come to court.

I believe that Judge Schulman treats the defense different than the
prosecution because he favors the prosecution.
I declare imder penalty of peijury that the foregoing is true and
correct.

This declaration was executed on September 17, 2018 at San

Francisco, California.

Eric Fleischaker
Exhibit C
 Declaration of Elizabeth Camacho

I, Elizabeth Camacho, am an attorney licensed to practice in the State

of California since 2011. I am currently employed as a Deputy Public

Defender at the San Francisco Public Defender’s Office, where I have

worked since 2014. I am currently assigned to the felony unit, where I

handle felony cases and trials.

I was the assigned attorney for Mr. Roberto Garcia, Court No.
14024825. The case was assigned to Judge Ethan Schulman. From

the very beginning of the trial. Judge Schulman expressed hostility

towards my client and I. During opening statements, he continually

interrupted and interposed his own objections, even though the

prosecutor did not object. Throughout the trial, he interrupted me

during my questioning of witnesses and presentation before the jury. He

also became angry with me. At one point, during the time when I was

giving my opening statement he said, “When is this telenovela going to

end?” He said this to me in chambers.

I am of Latino heritage, and my client is also of Latino heritage. I took

his statement concerning my opening statement as a “telenovela” to be a

racially insensitive statement which exhibited his bias against my client

and I, and Latino people in general, “Telenovela” is a reference to soap

operas produced in Latin America. I believe that Judge Schulman’s

comparison of my opening statement to a Latin soap opera was meant to

disparage my presentation of my client’s case and defense, and I believe

that a reasonable attorney would perceive it that way.

Throughout the trial, Judge Schulman criticized me and interposed

his own objections against me. His verbally assaultive behavior, through

his statements and objections, continued throughout the trial. I have

tried dozens ofjury trials in the seven years I have practiced, and have
never had a judge treat me as Judge Schulman did during that tried.

I believe his treatment of me during the trial is the direct result of bias

against me because of my ethnic background and that of my client’s.

The prosecutor, who is a Caucasian woman, was treated very

respectfully. Judge Schulman carefully listened to her arguments and

never interrupted her in the court. She was treated with deference

throughout the trial. But whenever I would speak. Judge Schulman

would treat me with disdain and disrespect. After the trial, the jurors

commented that Judge Schulman treated me poorly throughout the trial.

1 declare under penalty of perjury that the foregoing is true and

correct.

This declaration was executed on September 13, 2D48 at San

Francisco, California.