In a ruling thought to be the first of its kind, an Orange County judge disqualified a San Diego judge from hearing multiple cases under California’s Racial Justice Act, finding that there are reasonable questions about whether recently censured San Diego Superior Court Judge Howard Shore can remain impartial given his prior “insensitive language and comments” in the courtroom.
“From his comments, a person aware of the facts could reasonably believe that Judge Shore believes certain racial or ethnic groups commit more crimes than others,” Orange County Assistant Presiding Judge Cheri Pham wrote in part of one of her orders of disqualification, citing remarks Shore had made in previous hearings.
The county Public Defender’s Office in recent months has sought Shore’s disqualification in most cases assigned to him. Pham recently granted some of those disqualifications — including most cases dealing with the Racial Justice Act — and denied others. The total number of cases Pham ruled on was not immediately available.
It’s not yet clear how broad of an impact those rulings could have. While the disqualifications apply only to the specific cases in which they were filed, Pham based the disqualifications on Shore’s conduct in multiple previous cases. If Shore is assigned to preside over future Racial Justice Act motions, that would likely leave the door open for defense attorneys to seek similar disqualifications of Shore using arguments that have already succeeded.
A San Diego Superior Court spokesperson said another judge will be assigned to hear the cases Shore was disqualified from. “At this time, no decision has been made with respect to the judge or judges who will hear Racial Justice Act motions going forward,” spokesperson Emily Cox wrote in an email.
One of Pham’s disqualification rulings, issued in a 16-page order last week, stems from an effort by Deputy Public Defender Abram Genser to disqualify Shore from hearing a motion in a homicide case under the Racial Justice Act, a three-year-old California law designed to ensure that race does not factor in the administration of justice.
Genser alleges San Diego County District Attorney Summer Stephan’s office refused to give his client, who is Black, a plea deal similar to that of a White defendant in a comparable case. Genser is using the Racial Justice Act in an attempt to force the District Attorney’s Office to hand over a five-year list of each of its homicide cases, including the racial makeup of the defendants and victims and the settlement terms.
Shore, as a pretrial motions judge at the downtown central courthouse who is typically assigned most Racial Justice Act motions, was assigned to decide on Genser’s motion and rule whether prosecutors would be required to hand over the list. Genser challenged the assignment, asking that Shore be disqualified from the case. Shore declined to recuse himself, and Genser and prosecutors could not agree on which other local judge should rule on the disqualification motion.
That’s how the matter ended up with Pham, the No. 2 judge in Orange County.
Part of Genser’s disqualification motion was based on the “severe” public censure that California’s Commission on Judicial Performance issued to Shore in December. The commission determined that Shore skipped 155 days of work without approval and that his “misconduct seriously undermined public confidence in the integrity of the judiciary and cast disrepute on the judicial office.”
In connection with the censure and as part of Genser’s disqualification motion, two chiefs in the Public Defender’s Office filed an extraordinary sworn declaration alleging Shore “lost judicial legitimacy and irreparably damaged confidence in his judicial integrity” based on Shore’s conduct related to the censure and comments he made to them in a private meeting.
Pham rejected disqualifying Shore based on those grounds.
“Neither the Severe Public Censure of Judge Shore by the Commission on Judicial Performance nor the meeting that Judge Shore had with the Chiefs of the Public Defender’s Office form any basis for Judge Shore’s disqualification,” Pham wrote.
Pham ruled instead that Shore’s disqualification was based on remarks he made in previous Racial Justice Act hearings, such as using the n-word without prompting as part of a thought experiment or discounting implicit racial bias.
“In light of Judge Shore’s insensitive language and comments that Judge Shore has made in prior RJA proceedings, a person aware of the facts could reasonably entertain a doubt that Judge Shore would be able to be impartial in this proceeding,” Pham wrote.
The Orange County judge noted that Shore had previously questioned whether systemic racism exists in the legal system. In another hearing, Pham wrote, he questioned statistics that show minorities are imprisoned at a disproportionate rate.
“There is absolutely no evidence that… the proportion of persons in an ethnicity committing a crime must be the same as the proportion of the population,” Shore said in one hearing, according to a transcript.
Citing the standard for disqualification, Pham said such comments could make a person reasonably believe “that Judge Shore believes certain racial or ethnic groups commit more crimes than others and that he will not give weight to statistical evidence that indicates there is an implicit bias against certain racial or ethnic groups.”
In February, California’s 4th District Court of Appeal ruled that Shore had not taken into account implicit bias during a Racial Justice Act hearing for a driver who alleged San Diego police improperly pulled him over and arrested him. The three-judge appellate panel found that Shore “fail(ed) to address the abundant evidence suggesting that the traffic stop may have been the product of unintended racial bias.”
The appeals court in that case ordered Shore to rehear the case but this time take into account the idea of implicit bias.
For the disqualification cases, Pham noted in her order in Genser’s case that Shore had 10 days to seek an appeal. It was not known Thursday if Shore had or would appeal the disqualification.
