An Orange County Superior Court judge has signed off on at least 19 search warrants while working remotely in Canada, a violation of a rule requiring that such documents be approved while a judge is in the county, authorities revealed Wednesday.
Prosecutors and defense attorneys were alerted Wednesday morning of the rule violation in May by Orange County Superior Court Judge Nicholas Thompson, who was working an overnight shift for night court operations, said Jeff Wertheimer, the general counsel for the Orange County Superior Court system.
Thompson has been reassigned to a courtroom in the North Justice Center in Fullerton.
Someone in the information technology department noticed “roaming charges” from Canada on the judge’s work-issued tablet and brought it to the attention of court officials, Wertheimer said. An outside law firm was hired to provide guidance on the issue, and the attorneys recommended alerting prosecutors and defense attorneys to the policy violation.
“Based on what we received back from the Jones Day law firm, we decided the prudent thing to do is to tell the DA and PD what we learned so earlier this morning we handed them a notebook with 19 warrants (in question) to them,” Wertheimer told City News Service. “These are the ones we believe he issued while outside the country.”
In some of the cases, charges have not been filed, Wertheimer said. It will be up to the attorneys to decide what to do with the cases now, he added.
The court has a policy that judges with night court duty considering search warrant requests cannot leave the state, Wertheimer said. Since the coronavirus pandemic, judges have been encouraged to rely on technology to work remotely, but whether that covers what Thompson did is an open question, Wertheimer said.
Court officials are combing through the warrants to see if there have been any others issued improperly.
“We are going to continue to do our investigation and it could take some time,” Wertheimer said.
Thompson’s attorney, Paul Meyer, said, “Judge Thompson is fully cooperative with the court’s current investigation and legal research underway in this matter.”
Chapman University law professor Mario Mainero said the issue could jeopardize many cases. Mainero said judges must strive to avoid even the appearance of impropriety or unfairness, “So it strikes me that, if anything, this is a potential violation of those canons.”
“A reasonable person could say, `Gee, I want judges to be located here … to review an affidavit, ask questions and say, `I don’t understand this part here by your informant, can you supply more information?”‘ Mainero said.
Mainero also noted, “A reasonable person might say, `Gee, if the judge is in Canada, and they’re there for personal reasons of one kind or another … the focus will be on why they’re in Canada, and a reasonable person might think they are just whipping through these because it’s part of the job and that as well contributes to the concern.”
Mainero said it’s unknown why Thompson was working outside the country. But he said Thompson’s hiring of Paul Meyer to represent him indicates some level of concern because Meyer is a well-known attorney for judges who find themselves in trouble.
It’s believed that this has not happened before and Mainero said he struggled to find much case law on the issue.
Mainero said he has “no problem with the use of modern technology,” but a judge cannot seriously examine an affidavit establishing probable cause for a search through emailed communications.
Defense attorney Brian Gurwitz, who also has experience as a prosecutor, told City News Service that it is an “interesting issue,” but he doubted the revelation could end up affecting many cases.
“It would not be enough for a defendant to show that Judge Thompson violated a state law by approving a warrant when he was outside of California,” Gurwitz said. “Instead, the defense would need to establish that this also violated the Fourth Amendment of the United States Constitution.
“And I’m not familiar with any case saying that the Fourth Amendment requires judges to be sitting in their home state when they approve search warrants.