Peterson surprise: Judge is off case

January 23, 2004 

A day after Judge Richard Arnason was assigned to Scott Peterson's trial on double-murder charges, prosecutors had him removed from the case.

With a new judge not expected to be assigned until next week, the decision will delay the trial, set to begin Monday. It also adds another procedural hurdle for a case facing a 90-mile move from Modesto to Redwood City, on the San Francisco Peninsula.

Prosecutors said Arnason was "prejudiced against" their interests, but they did not say why. Under state law, each side in a criminal case can disqualify one judge without laying out specific reasons.

"I believe that I cannot have a fair and impartial hearing before said judge," co-prosecutor Rick Distaso wrote in a two-sentence document filed in Stanislaus County Superior Court.

Calls to the district attorney's office Thursday were not returned.

Legal observers said the prosecutors' reasons for objecting to Arnason could range from perceived liberalism to a move to buy time. They also said the decision can be risky.

Arnason, 82, is a retired Contra Costa County Superior Court judge best known for presiding over the sensational trial of activist Angela Davis in 1972. She was acquitted of murder, kidnapping and conspiracy. Arnason took the case after five other judges withdrew or were disqualified.

Peterson, a 31-year-old Modesto man, is charged with murdering his wife, Laci, and their unborn son, Conner, in a case that has drawn international attention. Prosecutors are seeking the death penalty.

Mark Geragos, Peterson's attorney, said he expected prosecutors to object to Arnason. He refused to say why, citing a gag order in the case.

"Of course they didn't want him. He has a reputation for fairness," Geragos said. "By reputation, he's legendary. He literally is considered one of the foremost trial judges in the state, and has been for decades."

Arnason's bailiff said the judge would have no comment.

Having used their single automatic challenge, prosecutors face a daunting task if they want to challenge the next judge.

"It's like a Derringer," San Francisco Assistant District Attorney James Hammer said. "Once you fire your one, you're out of shots."

Second challenge unlikely

The only way prosecutors could remove another judge is by showing actual prejudice. Doing so is "extremely difficult," particularly if the judge comes from another county, retired Stanislaus County Judge Augustus Accurso said.

He said challenging a judge has become common, although Hammer called the tactic "relatively rare."

Peterson co-prosecutor Dave Harris used such a challenge in March to have Stanislaus County Superior Court Judge Al Girolami blocked from hearing a civil case in which The Bee petitioned to unseal search warrants and other documents in the case.

Girolami was assigned to hear the criminal case after Peterson was arrested in April.

California Supreme Court Chief Justice Ronald George will pick a new trial judge next week, according to a statement from the state court administrative body.

In the interim, attorneys, court staff and law enforcement personnel are working on a host of arrangements. They include securing office space and lodging, arranging Peterson's transfer to the San Mateo County Jail, and figuring out how to transport evidence and thousands of pages of files.

Prosecutors plan to ask during a hearing today for a two-week delay to move their operation, Distaso said in court this week.

Several legal observers said they doubted that prosecutors decided to block Arnason to buy time.

"I don't think they would have done it to try to get a delay," veteran Modesto defense attorney Robert Wildman said. "In a matter of hours, they could have had another judge assigned."

Girolami could opt to remain with the case, legal observers said. Earlier this month, Girol-ami agreed to a defense request to move the proceeding, ruling that massive publicity endangered Peterson's ability to get a fair trial in his wife's hometown.

Reputation for compassion

Arnason has shown compassion on the bench and some could view that as liberalism, Hammer said, pointing to reports that Arnason delayed proceedings after a capital murder defendant was not allowed to shave before coming to court.

Arnason reportedly took off his judge's robe, walked to a store, bought a razor and shaving cream, and let the defendant shave in his private bathroom.

In 1996, he presided over the trial of a mother who was convicted of child abuse because her 680-pound daughter died of congestive heart failure at age 13. Arnason sentenced the mother to three years' probation and 240 hours of community service.

In 1994, in a case in which a man stole $80 worth of batteries, Arnason refused to impose a life sentence, even though California's "three strikes, you're out" law, adopted earlier that year, allowed the stiff sentence. The judge said he had the discretion to reduce a felony conviction to a misdemeanor.

Accurso, who has known Arnason for 20 to 25 years, described him as a "straight arrow."

"He doesn't favor anybody," Accurso said. "As judges, you sometimes have to make rulings that go against your grain, but that's what the rules are and that's his reputation."

Analysts said it was speculation to try to determine prosecutors' motives for disqualifying the judge, but said prosecutors are likely to have asked their counterparts in Contra Costa County about him.

"It seems both sides did their homework," Hammer said. "And the prosecution found something they didn't like."

Bee staff writer John Coté can be reached at 578-2394 or jcote@modbee.com.

Bee staff writer Susan Herendeen contributed to this report.

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