Criminal Defense in Orange County

The Affidavit of Prejudice

The Code of Civil Procedure section 170.6 is used whenever an attorney intends to keep a judge from hearing any matter that involves a contested issue of fact or law. It is sometimes called an affidavit of prejudice, a preemptory challenge or a disqualification of a judge.

Although there can be numerous reasons to file a C.C.P. 170.6 motion, the primary one is that the party does not believe he / she will get a fair or impartial hearing. Often, the attorney has personally had "issues" with this judge.

When an attorney wishes to exercise a C.C.P. 170.6 motion, it can be done orally or in writing (writing is preferred) and there are time requirements.

The reason this issue has become a topic for 'case of the month' is because the Orange County District Attorney's office is apparently filing 170.6 motions on Judge Thomas Goethals. Further, they are not filing the 170.6 motions on some types of cases, but rather, they are filing them on all cases.

The background of this highly unusual action is as follows: the Orange County public defender's office is alleging certain improprieties by the district attorney's office and their agents. The public defenders' case is a well-known homicide. They are trying to, among other things, recuse the district attorney's office from that case. Judge Goethals is hearing the matter.

Although the facts and circumstances around this legal proceeding are interesting in the extreme, we will limit our discussion to the C.C.P. 170.6 motions.

What makes this incident so unique is Judge Goethals. Judge Goethals was a deputy district attorney for many years and was one of the "higher-ups" in the office. When he left the office, he was then in private practice for a number of years before becoming a judge. Judge Goethals is one of a few judges who has experience on both sides of the counsel table as well as on the bench. It is my experience that the more life experience a judge has, the better judge he will be.

I have appeared in front of Judge Goethals many times and know him to be a fair and impartial judge. His reputation as an outstanding jurist is well known. The point of this is that the C.C.P. section 170.6 allows this type of action. An attorney has the right to exclude a judge if he / she believes the judge cannot be fair. That being said, however, any attorney wishing to use this section should think hard, and only file it when need dictates. The motion should not be filed just because you can't get your way.

If you or someone you know has been charged with a crime, contact the Law Office of Barney B. Gibbs. Put his 30 years of experience and knowledge to work for you.