My question involves criminal law for the state of: California
My son was arrested for a probation violation on 06/08/08. He has been in county jail since. Some how he ended up with two court dates, with different judges for the same charges. The first date was August 8th the judge dismissed com counts 1, 2 & 3 IOE charges against him and reinstated his probation, and ordered he released. Her reason being, that the peoples witness was unavailable and holding my son any longer was a violation of his sixth amendment rights. After court his public defender told me because they were felony charges the DA can re-file the charges one time. And if the DA re-filed before 5:00 PM that day he would remain in custody. The DA did not re-file, but the sheriff would not release him, saying that his probation hold had not been lifted and the only one who could do that was his probation officer. We contacted his probation officer, explained the situation and his probation officer told us he would have the hold lifted by that afternoon. Again the sheriff would not release my son. This time claiming he had a court date scheduled for the 14th. On August 14th the judge read his file and said that judge on the 8th, was wrong and should not have dismiss the case. He made a snide remark about how this is not Kern county, this is Santa Clara County and we don’t do things this way. Then he asked the DA if she had re-filed the charges against my son. The DA told him she had not re-filed yet, but was planning on doing it. The judge then set a new court date for September 3rd and ordered my son to remain in custody till then. Can a judge just over turn another judges ruling because he felt the first judge was wrong? And can they hold my son if the DA had not refilled the case?
I have been trying to contact the public defender assigned to my son’s case to find out what is going on, but he has not returned my calls. I called and spoke with the first judges clerk, explained what had gone on in the second court and his comment was “that’s not right.” He suggested that I go to the county clerk and ask that the other judge be removed from the case and that the case be brought back to the first judge. Now I am not a lawyer, but have been trying to do research to find out if my son’s rights are being violated. I found a statement in Witkin California Criminal Law, under Functions and Powers of trial judge. General control over proceedings; No vacation of orders by another judge: The general rule is that a trial judge cannot vacate an order by another judge in the same case; even if the change is based on a correct assessment that first judge erred. Otherwise, the second judge would be acting “in the role of a one-judge appellate court” Does this also apply to a hearing preliminary examination? I did finally connect with the public defenders aid and all she would tell me is there’s nothing they can do and my son is basically screwed. Is there anything I can do to help my son, other than hiring him a good lawyer? We do not have the money to hire a private lawyer.