With days leading up to his sentencing, Daystar Peterson, also known as Tory Lanez (TL) is not going down without a fight. TL is set to be sentenced on June 13 after his motion for a new trial (MNT) was denied. However, before sentencing TL and his lawyers Jose Baez (JB) and Matthew Barhoma (MB) have filed a motion against Judge David Herriford (JH) to be disqualified from this case. In a 32 page motion, TL and his legal team lay out all the reasons they feel justify JH’s disqualification.

Motion Filed Against Judge Herriford

Judge David Herriford

TL is asking the judge to recuse himself from the case referencing civil procedure code 170.1 (a)(1). The code reads:


(a) A judge shall be disqualified if any one or more of the following are true:

(1) (A) The judge has personal knowledge of disputed evidentiary facts concerning the proceeding.

According to the motion, the judge is disqualified specifically because: a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.

* In simple terms, this statement means that if someone knows the facts of a situation, they might have a valid reason to doubt whether a judge can be fair and unbiased. It suggests that there is a possibility that the judge’s judgment could be influenced or biased in some way because of the information known about them or the circumstances.*

Memorandum Of Points And Authorities

Tory Lanez

TL respectfully requests that the court disqualify JH from the hearing and determination of the case due to his prejudice against him. He requests that the court grants his motion to disqualify the judge for cause. A determination on a challenge for cause is: when making decisions, judges or decision-makers need to appear fair and unbiased. They have to carefully balance the different interests involved. They need to consider the public’s right to a fair and efficient resolution of conflicts, as well as the parties right to a decision based on the facts and laws involved.

Basically, it means that judges have to make sure they seem fair and impartial, and they have to weigh the needs of the public and the rights of the people involved in a case when making their decisions.


The petition for Writ of Mandate: Memorandum Of Points and Authorities (Read)

Should The Judge Be Disqualified?

Section 170 (a)(6) provides that a judge shall be disqualified for any reason:

(i) The judge believes his or her recusal would further the interests of justice.

(ii) The judge believes there is substantial doubt as to his or her capacity to be impartial.

(iii) A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial. — This point in particular is what TL and his lawyers feel disqualifies JH.

A judge doesn’t have to explicitly show bias or favoritism. Instead, if an ordinary person who knows all the relevant information has legitimate doubts about the judge’s fairness and impartiality, then the judge should be disqualified or removed from the case. In other words, it’s not about proving bias beyond a doubt, but rather if there are reasonable doubts about the judge’s ability to be fair, they should be taken off the case.

A judges’ decisions and opinions based on the facts of a case usually don’t automatically mean they’re biased or partial. However, there are situations where a judge may need to be disqualified if their rulings or opinions show that they have a preconceived opinion that comes from something outside the court. If these opinions show strong favoritism or hostility that makes it impossible for them to make a fair judgment, then their decisions may need to be reversed or overturned.

Background And Facts

During TL petition for a new trial, his lawyers argue that he was deprived of Due Process of Law. They argue that he was deprived by way of judicial bias and an intentional and deliberate agenda to dismantle TL’s defense by the court in a manner that a person aware of the facts might reasonably entertain a doubt that the judge could be fair and impartial. In other words, I was at the hearing and the judge was very argumentative and sassy. You can read for yourself in the 206-page transcript of how it all went down on May 8th.

April 10, 2023 Chambers Conference

During the meeting in chambers, JH inquired as to offer of proof of TL’s Sixth Amendment Violations and Violations of his right to counsel. JH also asked for information about witnesses and experts the defense planned to call for a hearing. During this process, it was discovered that Detective Warren Ebertheart, who was crucial to one of the issues TL raised, was intentionally avoiding a subpoena. TL asked the court to order the detective to appear, but the court did not take action and ignored the detective’s clear lack of cooperation, despite being within their jurisdiction.

May 8, 2023 Hearing — Judicial Abuse and Partiality

JB mentions in the motion that within the first 2 minutes JH had already made it clear to them that the hearing would be biased. JH emphasized Article 6, Section 13 of the Constitution which means: That a judgment or decision made in a legal case cannot be overturned or a new trial granted just because the jury was given incorrect instructions, or because the evidence was improperly allowed or rejected, or because of mistakes in the legal paperwork or procedure. The court will only consider setting aside a judgment or granting a new trial if, after reviewing the entire case, including the evidence, they believe that the error in question has led to a significant injustice or unfair outcome. In other words, there needs to be a clear indication that the error had a serious negative impact on the outcome of the case for it to be reconsidered.

Jose Baez and Matthew Barhoma outside of the courtroom

JB highlights in the motion that had JH actually read TL’s full MNT, he would have known about this citation. JB says there were several times during the hearing, where JH exhibited his failure to read TL’s MNT.

As you can see in the transcripts, the judge would not allow TL lawyers to present the matters in the order that deemed fit. JH insisted and demanded that the defense present the matters in the order they were listed in the MNT. The defense counsel objected to this.

JB brings up a great point in the motion. He points out the court gave judicial fairness to his prior counsel, Shawn Holley, Esq (SH). For example, during a pretrial hearing on April 5, 2022, the court allowed SH to present matters in the order that she needed.

Rather than show the defense counsel the same respect and fairness exhibited to prior counsel, the court disregarded every argument and objection made. So, why was JH so adamant that the defense could not present in the order that they had prepared?

Another point that was raised in the motion is that JH repeatedly emphasized objections that were waived during the original trial while choosing not to address the errors of law. He also was very dismissive of arguments regarding why certain issues raising due process concerns were not waived. For example, JH stated that he had read through the motion “very thoroughly”, however, he was unaware that the defense raised a Sanchez violation in regards to the admission of the Instagram post. JB says the introduction of the IG post was an error of law, in violation of People v Sanchez (2016). ASanchez violation is when an expert relies on hearsay to form an opinion.

The Sanchez violation was mentioned in TL’s MNT on pages 32-34. However, when this was mentioned in court JH acted suprised and said “Wait a minute. Hold on. You’re saying this is a Sanchez violation?” So did he really even read through the motion? JH immediately moved on from this issue without it being addressed.

Does The DNA Matter?

JH ignored TL’s argument that not objecting to the DNA evidence shouldn’t be considered as giving up the right to challenge it. TL referred to a specific part of the Evidence Code (Section 353) that says it should be interpreted in a way that doesn’t violate the constitutional requirement of due process. TL argued that if the DNA evidence was wrongly allowed and it resulted in a violation of his right to a fair trial, the judgment should be reversed. However, JH didn’t take this argument into account and disregarded it. TL believed that the constitutional requirement of due process should be upheld, even if there was a failure to object to the evidence during the original trial.

Prosecutors Alexander Bott and Kathy Ta

Although JH emphasized numerous times that the people were relying on that same evidence code in support of the forfeited objections, JH dismissed TL argument as to why certain objections were not waived. The judge made it impossible for TL to preserve the record.



*In simple terms, by not waiving objections, parties ensure that they have the opportunity to protect their legal rights, seek a remedy for any potential errors or violations, and preserve the issues for potential review in higher courts or on appeal. So being that JH did not allow TL to make his argument he was unable to preserve the record. Preserving the record is important because it allows the parties involved in a case to have an accurate account of what transpired during the trial or hearing. It serves as a basis for any future review, appeals, or legal challenges. If the record is not adequately preserved, it may limit the ability of the parties to present and address issues in higher courts or on appeal.

Is The Judge Biased?

In summary JH imposed various restrictions on the defense team and their approach to presenting their case in court. The judge overstepped their role by dictating how the defense should handle their legal strategy. JH went further and denied TL the opportunity to present crucial evidence in their defense, even though the court had previously asked for a demonstration of that evidence. Expert witnesses in ethics and DNA were prepared to testify but were not allowed to do so, despite an earlier agreement made in a private meeting in April. When JB objected to the denial of TL’s right to present arguments and evidence as they saw fit, the judge disregarded the objection and dismissed JB’s argument by stating that no testimony would help the case.

JH frequently interrupted and abruptly stopped JB and MB, while they were presenting their arguments in court. This interruption and cutoff can be seen by referring to the transcripts of the legal motion proceedings. It was pointed out that JH allowed the prosecution (the “People”) to present their arguments without interruption, giving them a full and fair opportunity to make their case, even though the legal case cited by the prosecution did not support the point they were trying to make. In contrast, the judge seemed to focus on the prosecution’s citations and dismissed the counter arguments presented by the defense, not giving them the same opportunity to fully present their arguments.

Overall, it seems that the judge imposed restrictions on the defense’s strategy, denied the presentation of important evidence, and dismissed objections and arguments from TL’s lawyer, which could potentially impact TL’s ability to present a strong defense. In essence, these issues suggests that the judge showed favoritism or bias towards the prosecution by interrupting the defense, while giving the prosecution more leeway to present their case and dismissing the defense’s counter arguments.

Should The Judge Just Recuse Himself?

Based on the facts presented, an ordinary person would have valid doubts about the fairness and impartiality of the judge. As a result, TL and his legal counsel believe that the judge should be disqualified or removed from the case. They argue that even if the court doesn’t find disqualification necessary, the judge can still choose to recuse himself if he believe it would serve the cause of justice.

In a highly publicized and controversial case like this one, it is crucial for the decision-maker (the judge) to appear objective and unbiased. TL’s lawyer, JB, suggests that the judge should recuse himself to promote the interest of justice and maintain the appearance of fairness in the case.

Other Documents

The judge responded to this disqualification motion, read here.

Petition for Writ of Mandate, read here.

Application to file oversized brief, read here.

Full transcript for the May 8-9, 2023 hearing for MNT, read here.