A hearing scheduled at 1:30 p.m. Thursday, May 3 to announce whether an out-of-county judge would hear a magistrate disqualification request in the Los Gatos murder-for-hire case against Paul Garcia was rescheduled for this week.
According to the court calendar, Santa Clara County Superior Court Judge David Cena will now hear the matter at the same time and in the same courtroom, department 34 of the San Jose Hall of Justice, but on Thursday, May 10.
Santa Clara County District Attorney Jeff Rosen, who prosecuted the high-profile murder-for-hire Los Gatos case, and Garcia's attorney, Edward Sousa, had five days to select such magistrate once Cena wrote his answer to agree on a judge in the county to hear the motion.
However, since the lawyers didn't agree, by law the matter was assigned to an out of county judge, Sousa explained.
"It's a motion to disqualify Judge Cena from the entire case," Sousa explained about the March 23 request that sent the case into a tailspin and more delays.
On Oct. 26, 2010, Garcia was found guilty of first-degree murder in the shooting death of former Los Gatos restaurateur Mark Achllli.
Sousa and former Santa Clara County Superior Court Judge Gregory Ward are representing Garcia. They argue that the basis for their disqualification request is that Judge Cena read the entire response to a retrial motion submitted by Garcia's former attorney Harry Robertson.
Such action has prejudiced Judge Cena, they stressed.
"We told him that [reading entire Robertson response to retrial motion would compromise him] and in his answer he has denied that he's biased or prejudiced against Paul Garcia, but it's not a subjective review of it. It's an objective point of view and the standard is whether a person aware of the facts would reasonably believe that Judge Cena could not be impartial," Sousa said.
"We're in a holding pattern until we find out who the assigned judge is and he or she rules on it," he said.
If Judge Cena is disqualified, it's up to the presiding judge of the Santa Clara County criminal court, Judge Rise Jones Pichon, to select a new judge to hear Garcia's retrial motion.
If the disqualification motion is denied, Judge Cena will remain on the case and Garcia's attorneys must determine if they wish to take other legal actions such as taking the matter to the 6th District Court of Appeal.
Sousa didn't want to speculate on those possibilities. "We're optimistic that he or she will see things from our point of view based on the motions we've filed," he said.
The attorneys became aware that Judge Cena had read Robertson's entire response to the retrial motion during a March 23 hearing.
"The Robertson declaration contained prejudicial and inflammatory disclosures that were irrelevant to the ineffective assistance of counsel claims alleged in athe motion for a new trial and which violated Mr. Robertson's obligations to maintain the confidence and secrecy of information receiving during his representation of the defendant," the attorneys wrote in their dis