The Strange Career of Judge Gary Kreep

Last year here in San Diego, we had a funny judicial election for a local Superior Court judgeship. The two candidates were Gary Kreep and Garland Peed, and at the time their names caught my eye not only for the obvious juvenile reasons, but because Peed listed his career as a prosecutor, and Kreep described himself as a “constitutional law attorney.” It turned out that Kreep was a high-profile “birther” who had questioned Barack Obama’s eligibility to the office of President of the United States. It also turned out that Kreep won, by a very narrow margin.

There was a lot of concern from the left about what Kreep would do on the bench — see for example this letter by the San Diego NAACP. And since Kreep has been on the bench he has indeed been controversial — but not for the reason some people were expecting. It seems that he upset the local prosecutors office by ruling against them too often. The San Diego Union Tribune reports:

San Diego Judge Gary Kreep, a conservative legal activist who led a failed fight to challenge President Obama’s citizenship, has been exiled to traffic court after several Superior Court rulings favoring defendants’ constitutional rights.

Kreep, 63, was reassigned on Sept. 9 from the downtown San Diego courthouse to a Kearny Mesa facility that handles traffic offenses and small claims.

The move came after prosecutors from the City Attorney’s Office began to boycott his courtroom over his legal approach.

For instance, Kreep often declined to take away a defendant’s 4th Amendment rights against search and seizure — something prosecutors can legally request at various points during the criminal process.

Apparently Kreep earned the ire only of prosecutors. The Public Defender’s office, which handles the majority of the cases in Kreep’s former courtroom, said its lawyers had no problem with the judge. Private lawyers had the same view.

The reassignment came soon after prosecutors deployed the legal tactic known as a peremptory challenge to keep cases from Kreep’s court, according to defense lawyers and courthouse sources.

Under state law, each side can exert one such challenge to the judge assigned to their case. They don’t have to state a reason. Prosecutors can create a so-called “blanket challenge” by issuing the peremptory challenge for every case assigned to the judge.

“They (prosecutors) are so used to getting their way,” said Heather Boxeth, a criminal defense lawyer who represented many clients in front of Kreep. “But they blanket-challenged him over simple misdemeanors.”

One example was how Kreep handled petty theft cases. Often defendants were given a deferred prosecution deal: plead guilty and in six months — if they had attended classes, not been arrested again, and repaid the store — the pleas would be wiped out.

Kreep would often dismiss these cases long before the six-month period, after the defendant had only attended a session or two, several lawyers said.

He also would release defendants without bail on minor charges if they had a history of showing up at court appearances, Boxeth said. And he was reluctant to impose orders of protection against individuals who had yet to be judged guilty.

Now I don’t know enough about the local criminal practice in San Diego, but the things Kreep is accused of — not requiring Fourth Amendment waivers, permitting minor offenders to go without bail, etc. — don’t seem so problematic to me. And if Kreep was reassigned simply because the prosecutors didn’t like losing these minor issues, that does strike me as troubling in terms of the appearance of impartiality and justice. (Incidentally, Kreep’s opponent in the judicial election, Garland Peed, now works in the city attorney’s criminal division; the story does not say if he has been involved in the anti-Kreep movement.)

Now I wish I had voted for Kreep.