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Less than 24 hours after retired Judge Richard Arnason was tapped for Scott Peterson’s trial, he was booted by the prosecution. Bay Area prosecutors and defense attorneys said Stanislaus County District Attorney James Brazelton was probably spooked by setbacks Arnason has dealt to prosecutors in other high-profile cases. For starters, the 82-year-old Contra Costa County judge recently tossed out an indictment in a death penalty arson case a few months back. And while he can dole out tough sentences, six years ago he reduced a much-publicized child abuse case where the victim died from a felony to a misdemeanor. And, several lawyers pointed out, Arnason’s career highlight — the 1971 murder trial of Angela Davis — ended in acquittal. Lawyers said Brazelton may not have wanted to risk trying the biggest case of his career in front of Arnason, despite his long tenure and generally glowing reviews. Chief Justice Ronald George had appointed Arnason to preside over the trial, which was moved earlier in the week from Modesto to San Mateo County. Peterson is charged with murdering his wife Laci and her unborn child in December 2002. Through a statement, George said he had given “very careful consideration” to the selection of Arnason, and will apply the same standard to his next choice. An announcement is expected next week. Attorneys point out that Brazelton has an uphill battle getting a death verdict with a largely circumstantial case where it’s unclear if prosecutors can even explain how Laci Peterson died. “I would imagine they are looking for a much more conservative judge than Judge Arnason,” said Michael Cardoza, who defended the East Bay mother whose homicide charge for the death of her morbidly obese daughter Arnason reduced to a misdemeanor in 1998. “If Arnason knows there is not enough evidence for death, he has the courage of conviction to throw it out,” Cardoza said. “Maybe they think he’s too lenient and too liberal on certain kinds of stuff,” said defense attorney James Giller, who persuaded Arnason to toss the murder-by-arson indictment against Eric Ashley in September 2003 because a prosecution witness had lied to the grand jury. Ashley was later recharged. “I wouldn’t think he favored the defense,” said Giller. “He doesn’t grant too many defense motions, but he does grant some and they are usually meritorious.” Contra Costa Deputy DA Dirk Manoukian, who handled the Ashley case, said he doesn’t have a beef with Arnason. He’s tried seven homicide cases in front of him. “On the Ashley case, Arnason’s ruling was certainly reasonable,” Manoukian said. “While I might have applied the law differently to the facts, a reasonable mind looking at the facts would say that’s a reasonable application.” The DA has recharged Ashley and is now preparing for a preliminary exam. Manoukian said his office doesn’t file challenges to Arnason but said he holds prosecutors’ “feet to the fire.” “When he makes a determination, he has the confidence to overrule a hearsay objection or throw out a death penalty indictment,” Manoukian said. “He knows the spectrum of police work and prosecution work. Where some junior judges on heavy cases would be hesitant to do what they believe is the right thing, Judge Arnason has confidence in his convictions.” Manoukian said he never talked to anyone in Stanislaus County about Arnason. But Santa Clara Deputy DA David Tomkins said that if he were assigned an out-of-town judge in a high-profile case, he’d want to talk to the local DA’s office. “You are being assigned to a judge that you know absolutely nothing about,” Tompkins said. “I am sure the first call is the Contra Costa district attorney’s office.” Contra Costa DA Robert Kochly and his chief deputy, Brian Baker, didn’t return calls. Brazelton’s office refused to comment. Arnason did not return calls. James Anderson, the Alameda County deputy DA in charge of death penalty cases, said he knows Brazelton well and said Arnason’s reputation could make him “blink twice.” “He is no dummy. He is not going to go blind into this case, and he is going to do his homework,” Anderson said. “Someone has given him information. He didn’t feel [Arnason] was going to benefit the prosecution.” Cardoza, the defense lawyer, said the challenge amounts to judge shopping. “It’s wrong. They were dealt their hand. Play it,” Cardoza said. “They must have gotten bad advice because he is fair to anybody,” said Berkeley defense lawyer Colin Cooper. “He is the fairest and most independent-minded judge on the bench. Nowadays, most judges are fair to prosecutors.”

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