Paul Garcia's Attorney Asks For Judge to be Disqualified on Lack of Impartiality

Convicted murderer Paul Garcia's attorney Edward Sousa asked Friday for presiding Santa Clara County Superior Court Judge David Cena to be disqualified from the case based on impartiality concerns.

During a packed afternoon hearing on the fifth floor of the San Jose Hall of Justice, Sousa and former Judge Gregory Ward, presented an eight-page motion to disqualify Cena and asked that the case be transferred to another judge at least to rule on Garcia's former attorney Harry Robertson's retrial motion response.

Since that earlier motion was denied, Sousa said in his disqualification request that "a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial."

Judge Cena has been presiding over the case since it went to trial and a jury found Garcia guilty of first-degree murder in the shooting death of former Los Gatos restaurateur Mark Achllli Oct. 26, 2010.

Achilli had been gunned down in front of his Los Gatos townhome in March of 2008 after prosecutors and investigators say he was the victim of a murder-for-hire scheme triggered over the affections of a bartender at Mountain Charley's Saloon, which Achilli owned.

Sousa filed a motion for new a trial in December of 2011 claiming, among other things, that Robertson provided ineffective representation. On March 8, Robertson responded in writing to the retrial motion.

In his disqualification motion, Sousa expresses concerns that Robertson said he had information relevant to the retrial motion but indicated he couldn't disclose it "until Judge Cena confirms that I am allowed to do so and it is clear in open court."

In January, Santa Clara County District Attorney Jeff Rosen, who prosecuted the case, asked for a waiver of the attorney-client privilege as a result of the ineffective counsel claim.

Sousa said that Robertson's response to the retrial motion contained "prejudicial and inflammatory disclosures."

The attorney-client privilege, which Judge Cena waived, only applies to communications that are relevant to an issue of breach, Sousa said.

"When due process requires a hearing, the adjudicator must be impartial," the motion states.

The parties are expected to return to court April 20 and Judge Cena will decide whether to respond to the disqualification request and what parts of Robertson's declaration can become part of the record.

The parties will have to determine what judge will eventually hear the disqualification motion for Cena.

"I think this is an unexpected twist (in the case)," Rosen said after the hearing, "but I don't think it will change the overall result of what will happen in this case."

Present during the hearing were Achilli's daughter Alexandra, and widow, Michele. More than 40 Paul Garcia supporters filled the courtroom and wore white solidarity ribbons that said, "We support Paul."

A friend, who declined to be identified, said they were pleased with the defense's maneuver. "We're hopeful. We're not going to give up."

Also attending Friday were longtime Los Gatos resident Sue Farwell and many friends of the Achilli family. Lead case investigator, Los Gatos-Monte Sereno Police Sgt. Michael D'Antonio was also in attendance.

Ward, who's helping defend Garcia pro-bono, said the defense is asking for another judge to deal with Robertson's response and not Judge Cena who was expected to rule on the retrial motion.

"Unfortunately, Judge Cena read the declaration already so we had to file this challenge because we believe that he's disqualified," Ward said. "If our challenge is granted ... then Cena will no longer be the judge on this case."