Xxxxxxxxxxxxxxxxxx,
In
Pro Per,
xxxxxxxxxxxxxxxxxxAV
xxxxxxxxxxxxxxxxxx
SUPERIOR COURT FOR THE STATE
OF
XXXXXXXXXXXXXXXXXX, In Pro PerDefendant, And SUPERIOR COURT OF Real Party at Interest, |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )))) |
(DOB
02/xxxxx) JDxxxxx Xxxxxxxxxxxxxxxxxx,
(DOB
05/xxxxx) JDxxxxx Xxxxxxxxxxxxxxxxxx,
(DOB
12/xxxxx) JDxxxxx Indxxxxxx (DOB
09/xxxxx) JDxxxxx MOTION TO RECUSE THE HONORABLE KRISTINE MACKIN MCCARTHY, LENARD
EDWARDS AND DEPENDENCY DIVISION OF THE SUPERIOR COURT OF CALIFORNIA IN SANTA
CLARA COUNTY, PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEEDUE § 170.1(a)(6)(C) |
I
INTRODUCTION
Defendant
respectfully requests the Honorable Commissioner Kristine Mackin McCarthy,
Judge Leonard P. Edwards and all judges or commissioners under the supervision
of Leonard P. Edwards disqualify themselves under the California Code of
Civil Procedures (CCP) Section (§)170.1 (a)(6)(C): “For any reason . . . A
person aware of the facts might reasonably entertain a doubt that the judge
would be able to be impartial.” The
honorable Leonard P. Edwards and Kristine Mackin McCarthy are defendants in a federal
constitutional and civil rights law suit as filed by the defendants partner
Xxxxxxxxxxxxxxxxxx H. Xxxxxxxxxxxxxxxxxx III and the case is active and
ongoing. Kristine Mackin McCarthy,
Leonard P. Edwards and anyone under the supervision of Edwards must disqualify
themselves in the defendant’s dependency case and the defendant requests that a
new judge be assigned from outside of these judges influence.
II
POINTS AND AUTHORITIES FOR
DISQUALIFICATION OF
MCCARTHY, EDWARDS AND THE
DEPENDENCY DIVISION OF
THE
The defendant lives with xxxxxxxx H.
Xxxxxxxxxxxxxxxxxx III and he has court ordered visitation with her sons. The defendant is involved in an ongoing
juvenile dependency case and expects hearings to continue. Defendant believes as any reasonable person
who would look at her situation, as it now exists that there is a significant
conflict of interest to have Commissioner McCarthy acting as a judge in her
dependency case with supervising Judge Edwards presiding over the division and
thereby presiding as the managing judge over the defendant’s case. The defendant’s partner filed a federal
constitutional and civil rights suit pursuant to 42 USC § 1983, 1985 and 1987 naming McCarthy and Edwards as
defendants. McCarthy and Edwards should
be disqualified: In the case [United Farm Workers of
There are
many objective persons who would be willing to testify that the situation of
the defendant being represented by McCarthy and Edwards is a conflict of
interest: “Code Civ. Proc., § 170.1, subd. (a)(6)(C) (Judge disqualified
if person aware of facts might reasonably entertain doubt that judge would be
impartial) makes the disqualification standard fundamentally an objective one. It
represents a legislative judgment that due to the sensitivity of the question
and inherent difficulties of proof as well as the importance of public
confidence in the judicial system, the issue is not limited to the existence of
an actual bias. Rather, if a reasonable man or woman would entertain doubts
concerning the judge's impartiality, disqualification is mandated. To ensure
that the proceedings appear to the public to be impartial and hence worthy of
their confidence, the situation must be viewed through the eyes of the
objective person. The reason for the objective standard of proof is the
difficulty in showing that a judge is biased unless the judge so admits. In
addition, public perceptions of justice are not furthered when a judge who
is reasonably thought to be biased in a matter hears the case. (emphasis added)” Catchpole
v Brannon (1995, 1st Dist) 36 Cal App 4th 237, 42
The
charges being brought by the defendant’s partner are being brought against
Edwards and McCarthy in both their personal and professional capacities. The federal complaint details actions in both
judicial but primarily in their administrative capacity and include federal
criminal charges for conspiracy pursuant to 18 USC §§ 241 and 242, which indicate
serious criminal implications. No
reasonable person could think that the commissioner, judge or anyone working
under them could possibly conduct themselves in a fair and impartial manner
considering they are facing possible criminal charges which would bring jail
time or a long probation period and these charges originate from the defendants
partner. “The facts and circumstances
prompting the challenge must be evaluated as of the time the motion is brought
and the evaluation of the challenge must not isolate facts or comments out of
context. The challenge must be to the effect that the judge would not be able
to be impartial toward a particular party.”
Flier v Superior Court (1994, 1st Dist) 23 Cal App
4th 165, 28
III
CONCLUSION
Any reasonable person looking at the current bench in the defendants case would see a conflict and would wonder why
the commissioner and judge have not disqualified themselves in the defendants
case at the point the federal constitutional and civil charges were filed
against them. The defendant respectfully
requests that the Honorable Commissioner Kristine Mackin McCarthy, Honorable
Leonard P. Edwards and anyone under their supervision including the Juvenile
Dependency Division of the Santa Clara County Superior Court, be disqualified
under CCP §
170.1(a)(6)(C) et seq. Defendant
requests that the Presiding Judge of the Superior Court of California,
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IV
DECLARATION
I, Xxxxxxxxxxxxxxxxxx am over the age of 18 years old and am a
resident in
Respectfully
Submitted;
Xxxxxxxxxxxxxxxxxx Dated___________________