A prosecutor with the Santa Clara County District Attorney's Office filed a motion in Superior Court last week to get a lawyer with the Independent Defender's Office kicked off a murder case because she plans to take time off to recover from childbirth.
Defense attorney Renee Hessling is representing one of five defendants in a double homicide case. She’s due for a cesarean section in December to give birth to twins, and has been planning to take time off following the procedure.
So she was shocked when Deputy District Attorney Leigh Frazier filed a motion in Superior Court to get Hessling removed from the case. The court document argues that Hessling's maternity leave was not unexpected, and so doesn't amount to "good cause to continue the case under the law."
In other words, it's not a good enough reason to delay the trial.
"My response actually was just this visceral, 'Are you kidding me?' " says Hessling. In her view, the DA is holding her request for a medical leave to a different standard because she's a woman.
"You know I’m not asking for a vacation with my newborn screaming twins," Hessling says. "I’m going to be recovering from a horrible surgery and I’m going to need eight weeks per the state’s disability to recover from that. And then I'll be back and I'm ready to go."
Hessling adds that it will take longer to get a replacement attorney up to speed on the case than it will for her to return to work.
The District Attorney's Office blames the defense lawyers in the case for putting the prosecution in a difficult position.
Assistant DA James Gibbons-Shapiro says one of the defendants in the case set a ticking clock in motion when he invoked his right to a speedy trial. When that happens, Gibbons-Shapiro says, prosecutors face the possibility of the case being dismissed after 60 days unless a judge finds good cause to go past that deadline.
"So all the risk for violating someone's right to a speedy trial is with the prosecution and the families of the victims of this murder," he says.
Gibbons-Shapiro says the law is not clear on this issue. He says prosecutors have not found a case that shows maternity leave as good legal cause to go beyond the 60-day deadline. And that's why the DA was seeking a judge's determination on the matter.
Gibbons-Shapiro says the defendant who invoked his right to a speedy trial now has agreed to waive that right -- so the DA plans to drop the motion.
Nevertheless, legal experts say that doesn’t erase the flaws inherent in the original filing.
"I think it’s just not a common sense argument and it is a discriminatory argument because it really relies upon a non-accommodation of something that is protected under law -- that is pregnancy and childbirth."
Russell says it’s regrettable the DA continues to defend an argument based on gender discrimination rather than acknowledging it as just an unfortunate misstep.