A defense motion seeking to disqualify a Stanislaus County judge who has been presiding over a murder case stemming from the shooting death of a California Highway Patrol officer is "speculative and premature," according to a Merced judge brought in to settle a dispute in Modesto's courthouse.
An attorney who represents defendant Columbus Allen Jr. II of Stockton filed two related motions in late May, one seeking to move the high-profile case to another jurisdiction and another seeking to disqualify Superior Court Judge Hurl Johnson.
In a written ruling filed last week, Judge John D. Kirihara of Merced County Superior Court weighed the defense claims against the judge's rebuttal and found no reason to take Johnson off Allen's case.
"There is certainly nothing in the record ... that demonstrates that Judge Johnson harbors bias or prejudice toward defendant or is incapable due to bias or prejudice of impartially performing his judicial duties related to the change-of-venue motion," Kirihara said in his ruling.
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Allen, 33, is suspected of killing CHP officer Earl Scott about 4:40 a.m. Feb. 17, 2006. Scott was found at the edge of northbound Highway 99, just south of Hammett Road near Salida, clutching registration papers for a Nissan Maxima registered to Allen's wife, Bertera.
Allen and his wife showed up at the Stockton Police Department hours after Scott's death to report that their car was stolen. A description of their sedan was widely circulated that morning in news reports about the officer's shooting and closure of the highway.
The high-profile case generated extensive news coverage when Allen was arrested and again when Scott was buried.
Surveys conducted by a defense expert say nearly two-thirds of potential jurors in Stanislaus County think Allen is guilty, even though his trial is not slated to begin until September.
To move the trial, a judge would have to conclude that Allen could not get a fair and impartial jury in Modesto because of widespread publicity that is deemed inaccurate and inflammatory.
In legal papers, defense attorney John R. Grele of San Francisco took aim at the judge and jurisdiction, but the change-of-venue motion was placed on hold while Kirihara considered Johnson's ability to preside at trial.
Grele argued that Johnson is biased against his client and long ago concluded that a change-of-venue motion would have little merit. John- son, who responded in legal papers, said he bases his rulings on the law and harbors no bias or prejudice toward Allen.
To back his claim, Grele pointed to a July 2007 ruling in which Johnson declined to seal the transcript of a grand jury hearing that led to an indictment against Allen, who is charged with first-degree murder and could face the death penalty if he is convicted of murdering a police officer.
In that ruling, Johnson said he has seen very few cases where pretrial publicity has been so damaging that the court could not find 12 impartial jurors to weigh the evidence. Johnson noted that an extensive jury selection process can be used to weed out people who have made up their minds.
Kirihara said it's too early to know how Johnson will rule on the change-of-venue motion, and therefore too soon to claim that Johnson is biased.
According to the ruling, Johnson had a duty to consider the impact of news coverage when he declined to seal the transcript, and will have the same duty when he decides if Allen's trial should be held in Modesto or another county.
A hearing on the change-of-venue motion has not been scheduled.
"His analysis on the ... motion will undoubtedly include his consideration of what, if any, impact the release of the grand jury transcripts has on the defendant's right to a fair and impartial trial," Kirihara said in his ruling.
Bee staff writer Susan Herendeen can be reached at firstname.lastname@example.org or 578-2338.