A judge’s question about whether a defendant made a “White Power” gesture led to a motion to disqualify him from the Fresno County trial.

However, the judge — Judge Alvin Harrell III — says he can remain fair and impartial.

Brian Turner is on trial in Superior Court for a May 18, 2021, incident in which he allegedly pepper-sprayed Palestinian flag-waving protesters at a stoplight.

Prior to the first day of preliminary hearing testimony, the attorneys met in Harrell’s chambers. The judge granted defense attorney Marc Kapetan’s request to suppress photographic evidence that Turner allegedly made a “White Power” hand gesture during the incident, without the prosecution first laying a foundation for such interpretation.

Harrell allegedly asked, upon seeing an image of Turner during the incident, “Is that a White Power symbol?” In his response to the motion, the judge said he “immediately recognized the hand gesture as one that has also been adopted as a white power symbol.”

The judge told prosecutor Anthony Muia that if the allegation was made, the bell cannot be unrung.

Witnesses Testify on Gesture

Despite Harrell’s ruling, witnesses testified that Turner made a hand gesture they interpreted as symbolizing “White Power.” Kapetan objected because of a lack of foundation for the comments. Harrell agreed, and the comments were stricken from the record.

The Kapetan motion said that after another sidebar meeting, Harrell admonished Muia. Harrell confirmed the admonishment in his response.

In another in-chamber discussion at the end of the first day, Harrell allegedly said he believed the gesture was a “White Power” sign, Kapetan’s motion said.

In his response, Harrell acknowledged that he made the comment.

“He (Harrell) believed that the defendant did, in fact, display the white power hand gesture during the confrontation with the alleged victims,” Harrell wrote in his response. “Accordingly, Harrell unequivocally stated he would excise the white power gesture from the ultimate analysis. Harrell has been and will continue to be fair and impartial in this matter.”

Kapetan filed the motion to disqualify the judge at the start of second day of the preliminary hearing.

“Initially, at the chamber discussion, the Court began saying he believed the sign was actually a white power sign. This statement was made, despite the fact that prosecution had not laid any foundation for such findings. To defense counsel, it was shocking, and using the words of this very Court, defense counsel cannot seem to ‘unring that bell.’ The court stated that he would ‘excise it from his mind,’ but the bell has been rung and Defendant and Counsel believe it is grounds for disqualification,” the motion says.

The motion halted Turner’s criminal case. The court reconvenes on May 26 for a status report on the motion to disqualify.

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