The San Francisco’s Public Defender’s office has filed a motion to disqualify Judge Anne-Christine Massullo alleging prejudice and bias towards the defense counsel, the defendant and the defense case in the BART arrest trial.

The case is that of Michael Smith 22, who was arrested by BART police in August along with his pregnant partner Andrea Appleton, 23, after police received a 911 call reporting a man with a gun at Embarcadero BART station.

It was later revealed that there was no gun involved. Videos of the violent arrest sparked outrage on social media as witnesses insist that BART officers allegedly refused to listen to witness testimonies.

BART officials say that Smith had allegedly kicked one police officer in the head and throat, bit another and spit on a third.

The motion, a copy of which was exclusively obtained by 48 Hills, makes the case that trial court’s bias impinges on Smith’s right to fair trial and to present a defense. This comes after several issues that surfaced during pre-trial hearings.

Judge Massullo excluded evidence that would allow witnesses to testify that no robbery threat was made as per the claim of 911 caller which sparked the arrest but she is allowing the man’s 911 call claiming that he was threatened.

The use of force expert put forward by the Public Defender’s office has also been excluded, and among other things Judge Massullo has barred the defense from mentioning the Oscar Grant case or Black Lives Matter, saying that Smith’s case has nothing to do with racism. This hugely impacts the defense case, which maintains that according to witness testimonies the 911 caller allegedly used racial slurs, while seated on the BART with Smith and his partner, and called the police as they got out of the train.

Speaking at the arraignment hearing, Public Defender Jeff Adachi spoke about the issues of racial profiling — both Smith and Appelton are African American — and that he believes that in this case someone called the police and made a false statement resulting in a violent arrest that could have been avoided altogether.

Judge Massullo insists that only actions that happened after Smith got out of train were relevant.

Yesterday, Judge Massullo ruled on allowing a video taped deposition of one of the Officers in lieu of his testimony at trial because the prosecutor informed the court that the Officer, who is the main witness, is on vacation starting Monday.

The Judge is currently hearing the challenge.

This is a developing story and we will continue to update it