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Irresistible Force Meets Immovable Object

A Mendocino County Superior Court judge, once seated, becomes almost impossible to dislodge. The inertia of incumbency ossifies, as it were, into an immovable object. Or so it was thought until last week, when District Attorney David Eyster knocked Judge Clayton Brennan completely out of the park and into the realm of utter irrelevance.

It has long been axiomatic in Mendocino County that ability and fitness are not always synonymous when it comes to high local office. (cf County Counsel's off, County Office of Education and so on.) While the term “diversity” is spoken with pious reverence, the truth is that everybody making the higher salaries, enjoying the full medical benefits, and looking forward to sumptuous retirement packages are about as diverse as a Klan rally. They're all from the same demographic — white liberal Democrat. Their favorite public word is "appropriate." 

But getting back to the incident last Friday. 

It had been a very difficult week. Officers from the North Sector reported that New Year’s Eve had sounded like they were in the Battle of Fallujah. (Nary a firecracker in Boonville.) Deputies Jason Cox (Covelo) and Mike Davis (Laytonville), both venues heavy on outlaws, said they heard high explosives being detonated at regular intervals, and an almost continuous rattle of multiple automatic weapons gunfire throughout most of the night. But there was little time to listen to, let alone investigate, the calamitous crescendo because several officers were in hot pursuit of known felons in stolen vehicles, armed and dangerous. One of them, Winterhawk Lincoln, was said to have professed a “death wish.”

“People ask us why we don’t do something about it,” Cox said, “so we go arrest him and the next day the same people go and bail him out.”

As a result of all this criminal activity, the courthouse was overwhelmed with defendants. It was so crowded, in fact, that some officers were arresting people right out of the gallery. Special Agent Peter Hoyle beckoned a young man forward out of the press of onlookers by crooking his finger. The kid shouldered his way through and said, “Yeah, waddya want?” “You’re under arrest,” Hoyle whispered with a smile. “What for?” “The seven ounces of meth in your car down on the street,” Hoyle said, delivering the young man to the court bailiff who cuffed him.

At any rate, the judges were working double shifts to handle all these people. Judge Brennan was called in to help on Friday although he's there anyway to manage the Drug Court — a kind of government sponsored AA meeting and the only thing the other judges feel he’s competent to handle outside his regular beat, which is traffic infractions and abalone busts in  far away Fort Bragg. (Brennan's predecessor at Ten Mile was Johnathan Lehan, a weenie wagger. When Lehan's clerk complained that Lehan was flashing her, the late presiding Judge of the Superior Court, Mendo, Ron Brown, arranged to have the woman who complained assigned to distant Willits while Brown arranged for Lehan to work in Ukiah while he got a grip [sic] on his libido. Sleazy deals orchestrated from the bench are fairly common in Mendocino County, especially if the beneficiary is from the white liberal Democrat demographic mentioned above.) 

Brennan was appointed to the Mendo bench through the influence of his mother, a federal judge. Brennan ran seriously afoul Eyster during one of Eyster's pot settlements, or attempt at settlement — the infamous Stornetta case, which was heard in Brennan's Ten Mile Court in Fort Bragg. In that one, Brennan refused to endorse a Stornetta-friendly deal that Eyster and Stornetta's defense attorney, Keith Faulder, seemed to assume was a slam dunk. DA Eyster was very, very unhappy. Brennan was soon to find out the hard way that “he didn’t know his limitations,” as Dirty Harry would say. 

So here comes Brennan last Friday. There were a number of defense attorneys lined up in the well, two or three lower echelon prosecutors and stacks of criminal files on both tables. But at the last moment, DA Eyster came striding into the room  and sent his juniors back downstairs to the office, saying he’d handle the afternoon docket himself — usually enough work for three or four lawyers, easily.

Brennan called the first case.

“Eduardo Alvarez. Who’s here for Mr. Alvarez?”

An attorney from the Office of the Public Defender, Eric Rennert, glanced cautiously at the DA — who hadn’t bothered to sit down — and said, “Your honor, I believe a motion is coming forward.”

“A motion? What kind of motion?”

“A 170.6, I believe, your honor.”

“Well, Mr. Rennert, you’ll have to be more assertive than that if you want to challenge me with a 170.6 motion.”

Rennert cleared his throat decorously and said, “It’s not coming from me, Your Honor.”

Brennan was baffled. He’d never heard of a 170.6 Peremptory Challenge coming from the prosecution. But here it was in the hands of the bailiff, thence to the Court Clerk, and finally into the bewildered judge's own hands.

Basically the motion reads like this: “I certify under penalty of perjury that I do not believe my client [the People in this case] can receive a fair and impartial hearing before you because of your prejudice. Therefore, under the Code of Civil Procedure 170.6 I ask the court to reassign this case to another judge.”

The book of California Criminal Law Procedure and Practice advises “Judges should be circumspect about showing any displeasure they feel at being challenged under CCP 170.6; an excessive reaction may be considered willful misconduct in office.” 

Brennan said, “Mr. Alvarez, your case will be assigned to another judge. You may be seated. What about the case of Kalisha Alvarez?”

“She hasn’t been transported from the jail, Your Honor,” the corrections officer said.

“And it doesn’t matter, anyway, the public defender noted, since it appears the DA has sent another 170.6 forward.”

It was true. Eyster had a stack of ’em in front of him, all the case files pushed aside. Brennan bit his tongue again and called the next case.

“Steven Amato?”

“Eric Rennert of the Public Defender’s Office for Mr. Amato, who is in custody and I believe we have a resolution in this case, but I see another 170.6 is coming forward so it doesn’t appear we will be resolving the case today,”

Judge Brennan snapped the file closed and slapped it aside in the growing heap of cases to be reassigned to a different judge.

“All right,” Brennan said, “What about Jose Aragon?”

“Same thing, your honor. 170.6”

“Curtis Bettega, then?”

On and on. By the time Brennan got down the alphabet to Solomon Woods his tongue was chewed raw and he suddenly shot to his feet and stormed out of the courtroom in an apoplectic rage. 

The courtroom exploded in laughter. Everyone, the bailiff, the correction officers, the prisoners, the lawyers, the gallery — everybody was in a fit of joy, grinning deliriously, leaning over to their nearest neighbor to exclaim: “Did you see that! Wasn’t that something!”

A lawyer beckoned me over to the rail. “My God,” he said. “In all my years, I’ve never seen anything like it. Are you getting this all down in your notes? If this were anywhere but Mendocino County, I’d say that judge’s career was over. What do you think?”

“I have not been here long enough to develop a viable opinion, but I expect my editors will have something to say; they smoked Brennan’s tawdry act long ago; from the git-go, actually.”

“You know — and even Judge Brennan must surely know this by now — the DA carries a very big stick, doesn’t he?”

“I’ll say he does — and he swings it like Barry Bonds!”

Word came down from the other departments that an emergency recess had been called and all their honors were conferring behind locked doors. The wild distress that must have been transpiring in chambers can only be guessed at, but those of us sitting in the limbo of Brennan’s courtroom were hugely entertained. Eyster himself — who hadn’t even condescended to speak to Brennan, having merely sent his 170.6 forms forward — looked like the last man standing in a gun fight.

“Will this cost him his robe?” I asked the DA.

“Probably not, though it could. But that’s not the point. I just wanted to teach him a lesson: Stay over in Fort Bragg at Ten Mile.”

“Or else?”

Eyster’s not a man to make threats; he merely smiled. Everyone was smiling — especially the defendants who, like the rest of us had never seen a judge get served out. It was truly gratifying, especially considering the smugness of this particular judge — oh, and what a way to start the New Year — especially, for me, since it happened on my birthday.

Ed note: Eyster’s blanket filings against Brennan are not unprecedented. In October 2004, the Mendocino County District attorney's office, at the direction of then-Mendocino County District Attorney Norm Vroman, asked [Fort Bragg] Judge Jonathan Lehan to recuse himself by issuing blanket 170.6 motions in all new cases and in most pending and continuing cases. DA Vroman confirmed that the challenges were 'blanket' filings in an attempt to make radical changes at Ten Mile Court. The district attorney would not give specifics about Lehan's recusal, but did say that 'People are not getting a fair shake' in his courtroom. "Overall, the general quality of justice in that courtroom doesn't meet the standards that it should," Vroman said, adding that "People on the Coast deserve better."


  1. Rick Weddle January 16, 2015

    re: Civil Procedure 170.6…

    I like the sound of this ‘Peremptory Challenge’ deal. It shows a light in some dark and over-indulged corners. Try to imagine a Peremptory Challenge issued by the populace of Humans, specifically, just once. When it comes to Justice, the Great Robed Ones would need to look alive or get off the Bench. This would apply particularly to the Higher benches, or we’d get sorry nitwits like Scalia, with all due respect. And the Chief Weenie Wagger of the United States Supreme Court, Clarence ‘Long John’ Thomas…he’p me, cheeses! Neither of these honored Justices, in their long, illustrious careers reading the Law, has gained a glimmer of an inkling of what their Surpreme Law says, or why. We’re supposed to wonder why there is no Justice in High places and no direction to get some. Wonder in Jefferson. Wonder in Gaza. Wonder in Pakistan.

    Satchmo, black orphaned son of a streetwalker, the Gabriel of the 20th Century, singing, “…it’s a Wonderful World…”

    A Civil Peremptory Challenge needn’t take the form of growling mobs with pitchforks and ipads. Folks can act in more concerted, sober, and determined ways to do a little housecleaning.

  2. Jim Updegraff January 16, 2015

    Why not include Alito and Roberts with Scalia and Thomas plus Kennedy about 3/4s of the time.We have an unholy five who march to their own drummer.

  3. debrakeipp January 21, 2015

    When I had the infamous pellet gun case heard in Mendocino County, the first form I downloaded off the Court website was good old 170.6! If you want a fair shake on your case with a judge to follow actual law, don’t go to Ten Mile – ever. As long as Lehan’s picture hangs on the wall of Ten Mile Court, it’ll continue to operate just like the little weenie wanker would want.

    I laughed and laughed when I read McEwen’s article about Clay Brennan in the AVA today. I’m still laughing. Karma is karma. Good for Eyster! ‘Can’t even get a lawyer in FB to act on your behalf, they’re all in cahoots with the judge and each other, throwing dice to see who gets to win that day. Has little to do with justice at Ten Mile. Acting on the law according to the law? Unheard of. Ten Mile could stand a firebug like Mark Nobles right about now. As long as Ukiah’s building a new court house, why not just close Ten Mile for good this time? Shake up attorney/judge apathy on the Coast?

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