People v. Superior Court (Mosby) CA4/2 (2026) · DecisionDepot
People v. Superior Court (Mosby) CA4/2
California Court of Appeal Feb 2, 2026 No. E086782Unpublished
Filed 2/2/26 P. v. Superior Court (Mosby) CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Petitioner, E086782
v. (Super.Ct.No. RIF1604905)
THE SUPERIOR COURT OF OPINION RIVERSIDE COUNTY,
Respondent;
MICHAEL MOSBY,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Jeffrey B. Jones,
Judge. Petition granted.
Michael A. Hestrin, District Attorney, Emily R. Hanks and W. Matthew Murray,
Deputy District Attorneys for Petitioner.
No appearance for Respondent.
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Steven L. Harmon, Public Defender, Linda Gail Moore, Melissa K.
McConaghay, Deputy Public Defenders; American Civil Liberties Union Capital
Punishment Project, Brian Stull, Claudia Van Wyk, Robert Ponce; American Civil
Liberties Union Foundation of Southern California, Summer Lacey, Alex Valdez and
Petitioner, the People of the State of California, in the person of Michael A.
Hestrin, District Attorney for the County of Riverside, file a petition for writ of mandate
seeking to vacate the order issued on August 12, 2025, denying their request to
disqualify the Honorable Samah Shouka from further action in the case of real party in
interest Michael Mosby, case No. RIF1604905. Mosby was charged by the Riverside
County District Attorney’s Office (DAO) with having committed murder in 2014; the
People sought the death penalty. Mosby filed a claim under the California Racial
Justice Act of 2020 (RJA), and discovery on the RJA claim commenced. Judge Shouka
was assigned to Mosby’s case and was overseeing the discovery. Judge Shouka was a
former deputy district attorney employed by the DAO in the homicide unit. The People
sought to disqualify Judge Shouka from presiding over Mosby’s case based on several
provisions in Code of Civil Procedure section 170.1. The People insist that Judge
Shouka had personal knowledge of disputed evidentiary facts; she served as a lawyer
for a party in a proceeding that involved the same issues as in the present proceeding;
and facts and circumstances exist that would lead a person to reasonably entertain a
doubt that Judge Shouka would be impartial in these proceedings. The Honorable
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Jeffrey B. Jones was assigned to decide the request for disqualification and entered an
order on August 12, 2025, denying the request.
The People filed a petition for writ of mandate (Petition) asking this court to
reverse the order denying the request to disqualify Judge Shouka and issue a peremptory
writ of mandate directing the trial court to vacate its August 12, 2025, order. The
People requested a stay of the trial court’s order until the issue has been resolved by this
court. This court agreed to stay the order and issued an order to show cause why relief
should not be granted. We grant the Petition finding that Judge Shouka’s previous
employment with the DAO might cause a person aware of the facts and circumstances
related to Judge Shouka to reasonably entertain a doubt that she would be able to be
impartial at the RJA evidentiary hearing within the meaning of Code of Civil Procedure
section 170.1, subdivision (a)(6)(A)(iii).
FACTUAL AND PROCEDURAL HISTORY
On April 8, 2014, at approximately 2:30 p.m., Darryl King-Divens was riding his
bicycle on Hemlock Avenue in Riverside. Mosby drove by King-Divens and shot at
him three times and then drove away. King-Divens was declared deceased at the scene.
Prior to being apprehended for the above murder, Mosby was involved in killing two
other persons and attempting to kill one person in Los Angeles: On April 17, 2014, at
approximately 11:30 p.m., Pedro Rodriguez was shot by Mosby over a dispute
regarding an acquaintance of Mosby’s. On April 23, 2014, Mosby killed victim
Quezada by shooting Quezada from his vehicle while Quezada ran down the street. On
April 1, 2014, Petitioner attempted to kill Leon Merritt by shooting Merritt while he was
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seated in his vehicle, but he survived. Mosby was convicted of both murders and the
attempted murder on January 24, 2017.
Mosby’s case is currently pending an evidentiary hearing under the RJA,
specifically under Penal Code section 745, subdivision (a)(3). Mosby is seeking to
show that the DAO seeks the death penalty, and files special circumstances and murder
charges, more frequently against Black defendants than against White defendants who
are similarly situated and commit similar conduct. The parties have not completed
exchanging discovery but Mosby has provided statistical information, specifically
homicide filings by the DAO for the period between 2006 and 2019.
A. STATEMENT OF DISQUALIFICATION FILED BY THE PEOPLE
AGAINST JUDGE SHOUKA
The People filed a statement of disqualification on June 27, 2025. W. Matthew
Murray declared that he was the deputy district attorney assigned to the case against
Mosby. He declared that Judge Shouka had personal knowledge of the disputed
evidentiary facts in the case within the meaning of Code of Civil Procedure section
170.1, subdivision (a)(1)(A). He also declared that Judge Shouka was a lawyer for a
party in a proceeding that involved the same issues as the present proceeding within the
meaning of Code of Civil Procedure section 170.1, subdivision (a)(2)(A), and (a)(2)(C).
Further, a person aware of the facts and circumstances related to Judge Shouka might
reasonably entertain a doubt that Judge Shouka would be able to be impartial within the
meaning of Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii). Murray
signed the statement of disqualification under penalty of perjury.
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The People provided that Judge Shouka, while at the DAO, handled all aspects of
homicide cases including the prefiling stage, preliminary hearing, trial and sentencing.
In addition, she offered advice in homicide investigations, made filing recommendations
and provided advice to her colleagues on cases she did not handle herself. Judge
Shouka possessed “deep knowledge” of how the DAO decided to file homicide cases.
The People insisted the evidence showed that Judge Shouka had been the reviewing
prosecutor in 28 cases. The People argued that the primary concern was not that Judge
Shouka was actually biased, but rather, there was an appearance of impropriety. The
People also claimed the standard for disqualification pursuant to section Code of Civil
Procedure section 170.1, subdivision (a)(6)(A)(iii), was relatively low. It only needed
to show that a person “might” reasonably entertain a doubt as to the judge’s
impartiality.
The People argued that a person “might” doubt Judge Shouka’s impartiality
based on the claim in the RJA motion filed by Mosby asserting that the DAO’s
decisions in filing murder and special circumstances cases, and in seeking the death
penalty, were the result of either explicit or implicit bias, which resulted in racial
discrimination. Judge Shouka was involved in many of these decisions while employed
at the DAO. A critical issue that Judge Shouka had to resolve in the instant case was
whether the prior cases in which she was involved were the result of unbiased case
analysis or racial bias. “[A] reasonable, objective third party might legitimately doubt
that Judge Shouka could fairly adjudicate the issue.”
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The People also noted that it was not entirely clear how the evidentiary hearing
pursuant to Penal Code section 745, subdivision (a)(3), would be conducted based on
the statute being recently enacted. An evidentiary hearing could potentially involve a
detailed examination of the facts of prior homicide cases in which Judge Shouka was
involved. It was possible that several current and former employees of the DAO would
testify, and Judge Shouka may have personal relationships with these persons. The
People believed that Judge Shouka, a former prosecutor who handled cases that were
the subject of the RJA statistical analysis, should recuse herself in order to avoid any
appearance of impropriety.
The People argued that, although Judge Shouka had not worked on Mosby’s case
while at the DAO, she did have personal knowledge of the facts of cases that were
relevant as comparable cases in the RJA motion. Further, Judge Shouka previously
served as an attorney for a party in another proceeding with the same issue as this case.
Judge Shouka had advised the DAO in the relevant prior cases, warranting her being
disqualified. The People concluded, “Judge Shouka’s personal knowledge about and
active participation in the types of decisions at issue in this case are grounds for
disqualification not only because an objective observer might question her impartiality,
but because the law specifically bars judges from hearing cases under these
circumstances.”
The People provided the declaration of Jared A. Haringsma in support of the
statement of disqualification. Haringsma was a deputy district attorney employed by
the DAO. He was a supervisor at the DAO and had been Judge Shouka’s supervisor
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from 2015 until 2018. He explained that in the DAO, cases that were assigned to
deputy district attorneys were handled by the deputy throughout the life of the case. As
such, the deputy district attorney assisted with advice during investigations, made
recommendations as to whether to file a case, litigated motions and handled trial
matters. All charging decisions were presented to the homicide management team for
approval. This involved detailed discussions of legal theories, strategy and tactics. The
homicide unit was “highly collaborative.” Judge Shouka was involved in the
collaborative decisions on filing charges in cases. Another document presented was a
list of 28 cases that Judge Shouka was involved in during her time with the DAO. In
that list, 19 defendants were Hispanic, five were Black, and four were White.
B. JUDGE SHOUKA’S RESPONSE
Judge Shouka filed her answer to the statement of disqualification. She
expressly denied any claim that her service as a deputy district attorney for the DAO
precluded her from being impartial and fair in the case or any other case, including any
issues raised under the RJA. Judge Shouka stated that she had worked for the homicide
unit at the DAO from 2015 until 2018. She noted that the People claimed she had some
involvement in the 28 cases that are included in the data supporting Mosby’s RJA
claims. However, no details were provided with respect to the level of any alleged
involvement in the 28 cases, and there is no explanation for how the 28 cases were
relevant to Mosby’s RJA claims in the instant case. Moreover, Mosby’s RJA claims
were based on Black defendants being charged more severely than White defendants by
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the DAO. Of the 28 cases identified by the People, 201 of those cases involved
Hispanic defendants, and “none of the 28 cases is numbered among the 21 comparison
cases identified in” Mosby’s RJA motion. There was no allegation by the People that
the identified cases were statistically significant or relevant to the analysis of Mosby’s
RJA motion.
Judge Shouka denied that her service as a deputy district attorney disqualified her
from presiding over the case. Her knowledge of the procedures and processes of the
DAO did not affect her ability to fairly and impartially address the issues in the RJA
motion. She had no personal knowledge of the evidentiary facts in the Mosby case and
was not a material witness. She further denied that she served as an attorney for a party
in another proceeding with the same issues as the instant case within the meaning of
Code of Civil Procedure section 170.1, subdivision (a)(1)(C). She had not advised on
Mosby’s case. Further, she had not advised the DAO on RJA motions as the RJA was
not adopted until two years after she was appointed to the bench. Her recusal would not
serve the interests of justice.
C. DENIAL OF THE STATEMENT OF DISQUALIFICATION
The statement of disqualification motion was assigned to Judge Jones and he
entered his order on August 12, 2025. Judge Jones had reviewed the statement of
disqualification, the points and authorities, the declaration of Haringsma “(including
1 In her declaration, Judge Shouka stated that 20 of the defendants on the list were Hispanic; the list included in the record contains 19 defendants identified as Hispanic.
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Exhibit 1)” and the verified answer filed by Judge Shouka. Judge Jones first noted that
the statement of disqualification was not a motion. It was a pleading that must allege
facts supporting disqualification; conclusions on information or belief were not
sufficient to support disqualification.
Judge Jones found that the statement of disqualification contained conclusory
statements that Judge Shouka should be disqualified. Judge Jones expressed concern
that the points and authorities had been verified by Murray. Judge Jones declined to
treat the points and authorities as an evidentiary declaration. Instead, he would limit his
analysis to the facts contained in the declaration from Haringsma. The record
established that Judge Shouka did not participate in the charging of Mosby.
Judge Jones noted that the People had the burden of proving facts requiring
disqualification and “[t]he People do not identify any facts in dispute.” He noted that
Mosby had performed a statistical analysis showing racially disparate charging
decisions. The People alleged that they dispute his contentions but did not “indicate
what facts are disputed.” (Italics in original.) The People may dispute the underlying
facts of Mosby’s statistical analysis but failed to allege what those underlying facts are,
and whether Judge Shouka has personal knowledge of the facts. The People failed to
show that Judge Shouka had personal knowledge of disputed evidentiary facts.
Judge Jones also rejected the claim pursuant to Code of Civil Procedure section
170.1, subdivision (a)(2)(A), which disqualifies a lawyer who represented a party or
gave advice to a party upon a matter involved in the present proceeding. Judge Shouka
was not employed with the DAO when the RJA was adopted. She could not have
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advised on the impact of the RJA. Further, factual issues raised by Mosby’s challenge
had not been identified.
Judge Jones also rejected disqualification based on Code of Civil Procedure
section 170.1, subdivision (a)(6)(A)(iii), that a person aware of the facts “might”
entertain a doubt as to whether the judge may be able to be impartial. Judge Jones
concluded, “Accepted as true, none of the contentions of the People appear logically
related to the impartiality of Judge Shouka, and thus would not cause a reasonable
(logical) member of the public to suspect bias or prejudice.”
Judge Jones acknowledged that “future developments” in the case may require
the matter to be revisited but that was true in every case. Judge Jones concluded that the
People had “failed to meet their burden to show facts requiring disqualification.”
DISCUSSION
The People seek reversal of the finding by Judge Jones denying the statement of
disqualification and issuance of a new order granting the People’s request to disqualify
Judge Shouka. The People state that the primary assertion by Mosby in the RJA motion
is that the DAO seeks the death penalty, and charges special circumstances and murder
more frequently against Black defendants than against White defendants who are
similarly situated and who commit similar conduct. The People insist that Judge
Shouka was involved in the decision to file murder cases in at least 28 cases that were
relevant to the time period in the instant case. The issue to be addressed in the RJA
evidentiary hearing is whether the filings by the DAO were based on unbiased case
analysis or explicit or implicit bias. Further, an evidentiary hearing may involve a
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detailed examination of facts of prior homicide cases, including those filed by Judge
Shouka. The People further contend that Judge Shouka has personal knowledge of
disputed evidentiary facts concerning the proceeding and previously served as an
attorney for a party in another proceeding with the same issue as the instant case.
In this case, Mosby seeks to prove an RJA violation by proving that “[t]he
defendant was charged . . . of a more serious offense than defendants of other races,
ethnicities, or national origins who have engaged in similar conduct and are similarly
situated, and the evidence establishes that the prosecution more frequently sought or
obtained convictions for more serious offenses against people who share the defendant’s
race, ethnicity, or national origin in the county where the convictions were sought or
obtained.” (Pen. Code, § 745, subd. (a)(3).) “[P]roof of a [Penal Code] section 745,
subdivision (a)(3) violation—e.g., differences in seeking or obtaining convictions and
differences in imposing sentences—calls for systemic or institutional analyses that are
most likely demonstrated at least in part through statistical evidence.” (McDaniel v.
Superior Court (2025) 111 Cal.App.5th 228, 242-243.) The policy and practice of the
DAO in charging different defendants, specifically the disparity of the charging of the
death penalty, may suggest patterns of institutional bias, explicit bias, historical patterns
of bias and systematic bias within the DAO. These policies and practices will be
addressed at the evidentiary hearing over which Judge Shouka would be presiding.
Code of Civil Procedure section 170.1 provides for several ways that a judge can
be disqualified. Under Code of Civil Procedure section 170.1, subdivision (a)(2)(A), a
judge shall be disqualified if they “served as a lawyer in the proceeding, or in any other
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proceeding involving the same issues he or she served as a lawyer for a party in the
present proceeding or gave advice to a party in the present proceeding upon a matter
involved in the action or proceeding.” Code of Civil Procedure section 170.1,
subdivision (a)(1)(A), provides that a judge shall be disqualified if they have “personal
knowledge of disputed evidentiary facts concerning the proceeding.” Under Code of
Civil Procedure section 170.1, subdivision (a)(6)(C)(iii), a judge shall be disqualified if,
for any reason, “A person aware of the facts might reasonably entertain a doubt that the
judge would be able to be impartial.”
Code of Civil Procedure section 170.3, subdivision (d), provides, “The
determination of the question of the disqualification of a judge is not an appealable
order and may be reviewed only by a writ of mandate from the appropriate court of
appeal sought only by the parties to the proceeding.” The facts and circumstances
prompting the challenge to a particular judge must be analyzed as of the time the
challenge is brought. (United Farm Workers of America v. Superior Court (1985) 170
Cal.App.3d 97, 105.) “A party asserting disqualification has a ‘heavy burden’ and
‘must “ ‘clearly’ ” establish the appearance of bias.’ ” (Bassett Unified School Dist. v.
Superior Court (2023) 89 Cal.App.5th 273, 286.)
“The weight of authority supports that where, as here, the relevant facts are
undisputed, a de novo review standard applies to a Code of Civil Procedure section
170.1(a)(6)(A)(iii) challenge to a claimed appearance of partiality.” (Wechsler v.
Superior Court (2014) 224 Cal.App.4th 384, 391-392; see also Sincavage v. Superior
Court (1996) 42 Cal.App.4th 224, 230.)
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Under Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii), “ ‘[I]f a
reasonable man would entertain doubts concerning the judge’s impartiality,
disqualification is mandated. “To ensure that the proceedings appear to the public to be
impartial and hence worthy of their confidence, the situation must be viewed through
the eyes of the objective person.” [Citations.] While this objective standard clearly
indicates that the decision on disqualification not be based on the judge’s personal view
of his own impartiality, it also suggests that the litigants’ necessarily partisan views not
provide the applicable frame of reference. [Citations.] Rather, “a judge faced with a
potential ground for disqualification ought to consider how his participation in a given
case looks to the average person on the street.” ’ ” (Jolie v. Superior Court (2021) 66
Cal.App.5th 1025, 1039-1040.)
Based on the RJA being recently adopted, there is little case law discussing
whether a former employee of a district attorney’s office can serve as a judge on a case
involving an RJA motion. The People refer to the opinion by the California Supreme
Court Committee on Judicial Ethics Opinions (CJEO) on disqualification of former
prosecutors in RJA motions, which was issued on August 7, 2025 (CJEO Opinion).2
The CJEO was asked by the requesting judge to address the ethical issues regarding
disqualification and disclosure requirements in cases involving RJA claims. The
requesting judge worked in the county district attorney’s office from 1998 through
2 CJEO Formal Opinion 2025-028 California Supreme Court Committee on Judicial Ethics Opinions, Disqualification and Disclosure Requirements Under the Racial Justice Act (August 7, 2025) http://www.judicialethicsopinions.ca.gov/wp- content/uploads/CJEO-Formal-Opinion-2025-028-Final.pdf (as of January 29, 2026).
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2010. During his time at the district attorney’s office, he handled cases involving
firearm enhancements. The requesting judge did not serve in an administrative or
management capacity while at the district attorney’s office. In a case before the now-
requesting judge, a defendant was being charged with a firearm enhancement that had a
potential exposure of 25 years to life. Defendant’s counsel brought an RJA motion
seeking discovery back to the year 2000 from the district attorney’s office of all cases
where firearm enhancements were charged. (CJEO Opinion, at pp. 1-2.) The CJEO
was asked whether the requesting judge was required to disqualify from the case, and if
not, what must the judge disclose. (CJEO Opinion at p. 2.)
The CJEO noted that a judge need not recuse “merely because the judge, while
working as a deputy district attorney, handled cases involving elements that may be
subject to discovery under a motion pursuant to the Racial Justice Act.” It further
noted, “Nevertheless, disqualification is required if the judge’s prior prosecutorial
involvement was such that a reasonable person, aware of the circumstances, could
justifiably doubt the judge’s ability to remain impartial.” (CJEO Opinion at pp. 2-3.)
The CJEO reviewed the applicable laws including the California Code of Judicial
Ethics, the RJA and Code of Civil Procedure section 170.1. (CJEO Opinion at pp. 3-7.)
The CJEO reviewed Code of Civil Procedure section 170.1, subdivision
(a)(6)(A)(i)-(iii), specifically, subsection (iii), noting, “A judge must also consider
whether a person aware of the fact that the judge, as a prosecutor, actively participated
in cases involving firearm enhancement allegations might reasonably entertain a doubt
that the judge would be able to be impartial in the present proceeding involving a
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defense request for discovery under the [RJA], which may include cases handled by the
judge as a prosecutor, and which may be used to establish a violation of the [RJA] in the
current case.” It rejected that the requesting judge was required to recuse himself. It
considered that the requesting judge as a deputy district attorney did not participate in
the cases more than any other deputy in the office. Further, “any overlap between the
current case before the judge and previous cases handled by the judge as a prosecutor is
that they involve similar enhancement charges. The risk of bias or the appearance of
bias is low.” (CJEO Opinion at pp. 13-14.) The CJEO did note, “[T]he result may be
different if the requesting judge, as a former prosecutor, participated in developing or
directing the district attorney’s policy regarding charging firearm enhancements, or was
directly involved in making charging decisions, as opposed to following office policy.
These facts, not present here, may increase the likelihood that a person aware of the
facts could reasonably entertain a doubt as to the judge’s ability to remain impartial.”
(CJEO Opinion at p. 14.)
Here, Haringsma declared that Judge Shouka was present at staffing meetings
where the decision whether to charge a defendant with murder was being discussed.
Judge Shouka, if she were handling a case, would make a recommendation whether to
file charges. The decision whether to file the recommended charges was made at an
internal meeting called “a staffing.” The recommendation to file would be considered
and then approved by a manager. Haringsma also declared that there was a
collaborative process in which all the homicide prosecutors would discuss their cases
and seek advice. Judge Shouka admitted she was present in these staffing meetings
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where homicide cases were discussed in detail, “including charges, legal theories and
strategies.” The decisions on charges for homicide cases were being made by the DAO
while Judge Shouka was present. Judge Shouka also admits that she made charging
decisions while at the DAO. As stated by the People, “. . . her actions as a filing and
trial homicide prosecutor are intertwined with the institutions as a whole.” Judge
Shouka insists in her answer that none of the cases she was involved with were listed as
cases that Mosby intended to use to compare his charges. However, the issue raised by
Mosby is how the DAO chooses to file murder charges, and seek the death penalty, and
whether there is implicit or explicit bias. Judge Shouka was present at staffing meetings
where these decisions were being discussed, and she regularly recommended charges
that should be brought in homicide cases. Her role was more than just following “office
policy,” and she was directly involved in making charging decisions.
The People only had to show in their statement of disqualification that a person
“might” reasonably entertain a doubt that Judge Shouka would be able to be impartial.
Here, Judge Shouka made recommendations as to filing charges in homicide cases
during the relevant period of time involved in the RJA motion, and was present at
staffing meetings where decisions were made in other cases as to the charges to be filed.
While we do not find that Judge Shouka was actually biased in this case, a person aware
of these facts might reasonably entertain a doubt as to whether Judge Shouka could be
impartial in determining if the DAO had a pattern of institutional bias, explicit bias, or
historical and systematic bias in filing homicide charges, when she was personally
involved in these decisions while at the DAO.
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We will direct the superior court to vacate its August 12, 2025, order denying the
People’s statement of disqualification against Judge Shouka and enter a new and
different order granting the People’s statement of disqualification.3
DISPOSITION
The petition for writ of mandate is granted. We direct the Riverside County
Superior Court to vacate its order issued by Judge Jones on August 12, 2025, denying
the People’s statement of disqualification and enter a new and different order
disqualifying Judge Shouka. The stay order issued October 6, 2025, is dissolved.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
CODRINGTON J.
MENETREZ J.
3 Having found that the statement of disqualification should have been granted pursuant to Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii), we need not address the additional grounds of disqualification pursuant to Code of Civil Procedure section 170.1, subdivisions (a)(1)(A) and (a)(2)(A).
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AI Brief
AI-generated · verify before citing
Holding. The court held that a judge must be disqualified under Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii), because her prior role as a prosecutor involved in making charging decisions during the period relevant to a Racial Justice Act claim creates a reasonable doubt regarding her impartiality.
Issues
Whether a judge's prior employment as a prosecutor in the same office requires disqualification from a Racial Justice Act evidentiary hearing.
Whether a reasonable person might entertain a doubt as to the judge's impartiality under Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii).
Disposition. granted
Quotations verified verbatim against the opinion
“Judge Shouka’s previous employment with the DAO might cause a person aware of the facts and circumstances related to Judge Shouka to reasonably entertain a doubt that she would be able to be impartial”
“a person aware of these facts might reasonably entertain a doubt as to whether Judge Shouka could be impartial in determining if the DAO had a pattern of institutional bias”