Hearings have ground to a halt in one San Francisco Hall of Justice courtroom this week after prosecutors in District Attorney Brooke Jenkins’ office launched a blanket challenge against a new judge presiding there.
San Francisco Superior Court Judge Michelle Tong has not been permitted to hear a single case since Monday, when she transferred to the Hall of Justice’s Department 12, which sees preliminary hearings in criminal cases before they go to trial, defense attorneys present have confirmed.
“Every single case that was in Department 12 yesterday had a challenge,” said Rose Mishaan, a private defense attorney who filed an objection to the practice on Monday and estimated some 20 or 30 cases were not heard. Another 35 cases were scheduled in that department today.
The DA’s action could allow prosecutors to force a change of judge without providing evidence of prejudice.
Tong, a former longtime public defender elected in 2020, had previously worked in the civil courthouse hearing traffic, small claims, and civil harassment cases. She was reassigned this week by the presiding judge. Defense attorneys said every prosecutor in the courtroom on Monday and Tuesday issued challenges against Tong.
In a statement, the DA’s office accused Tong of incompetence, writing that she “bears the rare distinction of having been immortalized in caselaw as providing incompetent assistance of counsel to a client when she was a very senior attorney with the Public Defender’s Office.”
The statement went on to accuse Tong of making a “deliberate choice” to “ignore the rights of her client.” This refers to a 2018 case in which a man accused Tong, his attorney, of withholding from prosecutors that he wanted to accept a plea bargain, and of failing to tell him of another plea offer.
“There is nothing during her time on the bench that gives us confidence that she can be fair, impartial, and unbiased,” the DA’s office continued. The spokesperson said the office is not required to give reasons for challenging Tong.
Defense attorneys said that multiple assistant district attorneys who appeared in court Monday and Tuesday filed in writing or cited section 170.6 of the Code of Civil Procedure, which allows attorneys one opportunity to peremptorily challenge a judge in a proceeding without giving any reason.
Matt Gonzalez, chief attorney at the San Francisco Public Defender’s Office, called it “petty” for the DA’s office to show “blanket animosity” toward Tong, “especially on her first day presiding over that courtroom.” Tong is highly qualified with years of trial experience, he added.
“We appear before many judges who were former prosecutors every day,” said Gonzalez, but public defenders do not challenge them “unless we see an ongoing pattern of bias against our office or our clients.”
The DA’s statement said that Tong’s history as a public defender had nothing to do with the objections against her.
Judge-shopping is a legal but frowned-upon practice in which litigants seek judges they think will rule on their cases favorably. The practice has, in recent years, drawn scrutiny at the federal level, and the Judicial Conference in March 2024 issued a policy that “deters judge-shopping” in state and federal civil cases.
In her objection filed in court yesterday, Mishaan wrote that the rejection of Judge Tong violated the separation of judicial and prosecutorial powers, as well as her client’s right to due process. She called for Jenkins to recuse herself from the case “due to her improper and unconstitutional use of the disqualification statute.”
A blanket challenge “effectively drives a judge out of a criminal court,” added Mishaan, who said she has seen the same from Jenkins’ office over the past year with other judges in San Francisco, albeit ones who had heard cases before. “Which judge is going to be assigned to which department is not in the power of the DA. That’s the decision of the presiding judge.”
Jenkins’ move seems to be the latest attack on San Francisco judges by the DA, who has been vocal in her accusations that judges are too lenient on criminal suspects, taking to social media in some cases to blast them by name.
It’s not Jenkins’ first such challenge. Prosecutors in August challenged San Francisco Superior Court Judge Carolyn Gold in two different criminal courtrooms before she was moved out of criminal court, Mishaan said, to Unified Family Court. In late 2022, Jenkins’ office also challenged now-retired juvenile Judge J. Anthony Kline, saying, without evidence, that he was biased.
Mishaan said that on Monday, Tong ended up being replaced in the afternoon by a different judge, before whom prosecutors proceeded with their hearings. Sources say the same happened again today. After the morning cases were similarly blocked, Tong was again replaced. Despite “some pretty strenuous objections” made in court by defense attorneys, Mishaan said that Tong took the challenges in stride.
Tong declined to comment on the challenges. The San Francisco Superior Court also declined to comment.
“This falls in direct line with Brooke Jenkins’ prior attacks on the judiciary when they don’t do exactly what she wants,” said private defense attorney Rebecca Young. “And they’re not there to do what she wants. They’re there to apply the law.”
Mishaan said that while prosecutors do sometimes issue blanket challenges of judges, it was “unusual” to do so against a “judge who has literally not made a ruling in a criminal case.”
Not hard to find articles suggesting this “progressive” judge is not doing her job very well,
E.g. https://www.sfchronicle.com/opinion/emilyhoeven/article/guillaume-son-abduction-kazakhstan-19493214.php?utm_content=cta&sid=6629def7500b8463ed04a153&ss=A&st_rid=8c9788ce-041f-4992-b4b3-9236124e9b6c&utm_source=newsletter&utm_medium=email&utm_term=headlines&utm_campaign=sfcn%20%7C%20the%20must%20read
Reality is this was a political judge elected as a progressive in 2020. Her goal was to be kinder to criminals, do restorative justice,
Were I the DA I would bump her too.
There are actually lots of judges in SF who view their jobs is giving breaks to repeat criminals. The DA can’t bump them all. She she must be one of the worst of the worst.
Restorative Justice actually requires the consent of all parties. Look into your claims for once and jesus clean up your links.
Hopefully Judge Tong’s history of bias and disregard for the rule of law has finally come to an end. Thank you DA Jenkins for continuing to represent the good people of San Francisco.
That’s not how the legal system works nice try back to kindergarten.
to SD: you will never get a point by repeating the same litany over and over under people’ comments. You sound like a paid troll.And try to stay civil, telling someone to go back to kindergarten and being arrogant is what sent a bunch of people to the nazi party during the last election.
You’re playing for “points” then? I’m very sad for you. Kindergarten is where children can begin to learn, so good luck finding out how our legal system doesn’t actually allow judge shopping and why this is an abuse (for politics) rather than a sanctioned and supportable challenge to a specific judgeship, “ali” the +3 citizen who doesn’t want to actually discuss the issue… maybe get a hobby too?
I’m glad to see Brooke Jenkins standing up for the people of San Francisco.
That is why we elected her.
Keep fighting for us, Brooke!
That’s not how this works. You can’t just avoid the justice you don’t like.
District Attorney is not a Judge, not a jury.
Feels like it’s the criminals and those affected by them that haven’t had justice here in a long time…
I disagree with the move but there are many examples here in SF where a judge let go a criminal with a long rap sheet who, a couple days later, re-offended violently. Many judges live separate lives, in secluded/safe/protected well to do communities and have no clue what the general public is going through. Get real, not every offender can be rehabilitated.
The law doesn’t apply based on what one person in the public thinks, or even a majority of people. It’s not a democracy even though jurors vote.
Good for Jenkins- doing the lords work. Ali is correct, Activist Judges need to go. People with multiple active cases and priors shouldn’t just be let out on OR to re-offend. Often times, those re-offenses affects the most vulnerable of our population and that’s what progressives haven’t understood.
Such an egregious abuse of prosecutorial power.
Guarantee you every lawyer in that building knows exactly why Tong is being papered. This doesn’t happen out of the blue.
I had a hearing in front of judge Tong trying to get a restraining order against a serial trespasser who had exhibited some bizarre behavior. Even though he admitted it, she ruled against me, saying we needed to “work it out”, despite having heard evidence that we had tried, and failed. to work it out. Going to court was a last resort. She gave someone who doesn’t respect boundaries and can’t control his impulses free rein to do as he pleases with my property.
Jeff Adachi used to do things like this when he was public defender, including calling for a judge to be removed from the bench. The DA’s objections here are equally unseemly. But don’t read too much into it. They’re just playing the refs, and the judges know this. Gonzalez is doing the same thing with his glowing comments about a former colleague, albeit in a far less unseemly manner. Criminal practice is sharp elbowed, but the DA should tone it down.
Why is Brooke Jenkins still around???
Woah, this sounds pretty crazy. Really doesn’t seem like the DA’s office should have to power to boycott a judge until their bosses (?) push them elsewhere. Why would the courts allow them this power and cave to it?
Very troubling. What’s the point of having a judge if the DA effectively has the power to fire them?
If Brooke Jenkins wants to run the whole show like a dictator, she owns the results and reviews that follow based on her performance.
Wonderful, wonderful photo of the Pinnacle Powers of SF Justice all with the same expression that says:
“We’re tired of Reform.
Let’s get us some Revenge !!”
never a good look
anywhere
anytime
go Niners !!
h.
ML fellow readers,
Jeff Adachi built a Public Defenders Office in San Francisco that will give you a better representation from a better credentialled Corps of Attorneys than any Law Firm in the World.
Period.
go Niners !!
Once again Jenkins showing that she is not a professional and should be removed from the job.
Breed tactics in the Lurie administration.
Y’all want the truth ?
It all began in my living/parlor/kitchen/dining/recording studio front room about a year ago.
I was standing with Daniel Lurie looking at my ‘Public Defenders Wall’ (Joe can print my shot of it that I sent him tho I’m not savvy enough to attach) …
In the center of the section of Wall I’ve devoted to all things Gonzalez (there’s an opposing wall for Angela Alioto) is a poster that I had a friend make up for me during the judges election cycle that year.
I designed it to fit inside the window of take your pick empty newsrack slots at the BART stations.
Shot had Evangelista and Tong and Gold and they seldom lasted more than a few hours.
I went through 150 of them in the last week of the campaign.
And, they all won !
So, sue me.
Naw, where was I when I interrupted myself ?
Yeah, Daniel looks at that poster and says:
“Why aren’t we allowed to go after your judges ?”
I said that, of course, they were but didn’t note that we did that entire campaign for under fifty bucks.
Hey, he learned or someone next to him did.