SF DA disqualifies judge in 1st week on criminal court, cites record

The San Francisco district attorney's recent public criticism of judges continued as her prosecutors disqualified Judge Michelle Tong from handling any preliminary hearings since her assignment just over a week ago. She had been transferred from a traffic and civil harassment calendar.

"When we believe that victims of crime cannot have a fair and impartial hearing in front of a judge we exercise our rights under the law - the very least victims and the public deserve are fair and impartial judges," said a statement from DA Brooke Jenkins' office. "Despite recently joining the bench, Judge Tong is a well-known quantity to members of the District Attorney's Office."

Tong was emailed questions and requests for comment but did not respond.

Court spokeswoman Ann E. Donlan sent an email stating, "The Court has no comment about the challenges."

Rose Mishaan, a private defense attorney, filed four objections last week against the DAs blanket challenges to Tong under Code of Civil Procedure Section 170.6.

In a phone interview she said the move "impacted the independence of the judiciary."

"No one from the DA's office has explained why they are doing this, so I can't speak to their motivation," said Mishaan. "But since Judge Tong has not presided over any criminal cases and since there are other public defenders on the bench who have not been disqualified by the DA, it cannot be based on the fact that she's a former public defender. So, the only reasonable inference is that there is some feeling of animus toward her specifically."

Tong spent 17 years at the San Francisco Public Defender's Office before she was elected in 2020, though the DA's office said its objection to her is not based on this background. She was assigned to family court after taking the oath in early 2021.

A memo in June 2024 from then-Presiding Judge Anne-Christine Massullo reassigned Tong to civil harassment and traffic court. The reason was not disclosed but coincided with the fallout from a 2023 domestic violence and custody case Tong ruled on.

A San Francisco Chronicle article reported on June 28, 2024 that Tong ordered a husband who had obtained a restraining order against his allegedly abusive wife to pay $20,000 of his wife's legal fees. Tong then approved the wife's request to travel to Kazakhstan with their son despite warnings from the husband. The wife failed to return.

"There is nothing during her time on the bench that gives us confidence that she can be fair, impartial, and unbiased," said the DA's office statement, though it did not refer to the news making case.

"Judge Tong also 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 DAs' statement said. "The incompetent assistance was not based on an accidental omission or mistake but on a deliberate choice of an experienced attorney to ignore the rights of her client."

The reference is to a 1st District Court of Appeal opinion that stated a client of Tong's was "denied effective assistance of counsel" while she was a public defender. Her client, Benjamin Chase, received an offer from the DA to accept a 50% sentence of two years with half of it served instead of going to trial in a residential burglary case.

According to the unanimous opinion written by now-retired Justice Peter J. Siggins, Chase said he wanted to accept the offer, but Tong testified that she wanted to gather all the evidence first to make a more informed decision. Chase claimed Tong did not fully inform him of the deal and that if she had, he would have taken it immediately.

The assigned DA was leaving the case and told Tong the offer would lapse, according to the opinion. Tong testified she was in a full trial in another case and then left the country on vacation. She did not accept the deal on behalf of Chase or get back to him. He went to trial and got three years in prison.  People v. Chase, A149299 (Cal. App. 1st, filed May. 17, 2018)

The opinion stated, "It is clear to us that defense counsel rendered deficient legal representation when she failed to communicate Chase's wish to accept the initial plea offer before it lapsed. A defense attorney has an obligation to fully advise his or her client of the terms and desirability of plea offers extended by the prosecutor.

"It need hardly be said ... that counsel's trial on another matter or leaving for a vacation did not excuse her obligation," Siggins wrote.

Defense attorney Mishaan wrote in one of her objections against the blanket challenges against Tong that there had been two similar instances recently. In August 2024, the DA made a blanket challenge against Judge Carolyn Gold, who was assigned to a preliminary hearing department at the time. Gold was then transferred to a department that handled non-criminal matters, the objection said.

In June 2022, a month before Jenkins was named interim district attorney, Mishaan said Judge Victor Hwang was assigned to the misdemeanor master calendar, but following blanket challenges from then-DA Chesa Boudin, he was assigned to a civil department.

"When you have an elected official, like the DA, attacking the judiciary by singling out individual judges she doesn't like, the independence of the judiciary is undermined," Mishaan said in a phone interview. "For all the criminal justice system's flaws, I do not think that the citizens of San Francisco, or the U.S., want a system where criminal cases are decided based on public opinion and where judges face public shaming, recall or even violence every time they make a decision that might not be popular."

Responding to the claims that defendants may not receive fair access to trials resulting from the blanket challenges, the DA's office said, "The court simply assigns another judge to the case when either party lodges a challenge against a judge, one that if they do not believe can be fair and impartial they are free to challenge. In the absence of their challenging the replacement we assume they believe they are receiving a fair hearing."