Recusal denied in Black Lives Matter case

A judge has denied a motion to recuse the San Joaquin District Attorney’s Office from prosecuting eight defendants believed to be Black Lives Matter activists.

On Monday, San Joaquin Superior Court Judge Michael Mulhihill ruled that defense attorneys failed to establish sufficient facts to warrant an evidentiary hearing, according to Deputy DA Robert Himelblau.

The motion to recuse was based on unsubstantiated claims and opinions, Himelblau wrote in an email.

“The allegations and conclusions made by the defendants’ motion are false and there is no form of race-based selective prosecution in the policies of the District Attorney’s Office that govern who, when, why and how to prosecute criminal defendants,” Himelblau wrote, adding that “the defendants’ motion was so factually deficient that a prima facie case could not be made to even get to the next step of the motion, that is, an evidentiary hearing.”

Yolanda Huang, an attorney representing the defendants, said that Mulhihill ruled to deny the motion on the grounds that a motion to compel discovery must be filed first and set a hearing date for Aug. 14.

Huang filed the initial motion on May 23, on the grounds that a skit performed during the District Attorney’s 2016 Halloween party indicated an office-wide racial bias. Leaked photos from the party show a deputy district attorney snorting white powder, imitating cocaine use, while dressed as Snow White.

Other DA employees are shown in one of the photos dressed as the Seven Dwarves wearing black and white prison stripes, with at least one holding a sign that reads “Dwarf Lives Matter.”

This skit occurred a few months after several BLM protestors were arrested in Stockton, and Huang and her clients claim that the behavior is symptomatic of institutional racial bias in the DA’s office.

“The DA is supposed to be neutral, since they represent ‘The People,’ and that includes everyone, even the protestors arrested last year. Since the DA is now representing itself ... the DA now has, at a minimum, a conflict of interest,” said Huang in an email.

The DA’s opposition to the motion explained that, when deciding whether or not to proceed with the motion to recuse, the Attorney General’s Office first had to determine whether a conflict of interest existed, and if that conflict was severe enough to prevent the DA from acting with impartiality.

“There is simply no credible evidence of a conflict between this Office and Defendants ... Defendant’s Motion to Recuse simply makes bare-boned allegations ... to create a conflict where none exists. Without Defendants unsubstantiated claims and conclusions, there is no independent evidence of a debilitating conflict.”

In his email, Himelblau expressed confidence that the Attorney General will not recuse the DA’s office, even if the motion to compel discovery yields enough evidence to proceed with Huang’s original motion, adding that the actions of a few employees did not provide sufficient evidence of an office-wide racial bias, even though he claimed to understand how the skit could be offensive to some people.

“Despite the claim of these defense attorneys, there is no form of race-based selective prosecution in the policies of the District Attorney’s Office that govern who, when, why and how to prosecute criminal defendants,” Himelblau wrote.

Additionally, the DA’s office obtained a protective order preventing the disclosure of any information found in the discovery, according to Huang. Huang and her clients plan to ask for more discovery during the next hearing on Aug. 14, as well as requesting that the protective order be modified.