Swords and Shields

People v. Superior Ct. (Jones), No. S255826 (Cal. 2021)

This Supreme Court case about work product was decided back in December, but I missed it because it’s a habeas case. The substance of the petition is an ineffective assistance claim based on counsel’s failure to adequately litigate a Batson (or, if we are speaking state court, a Wheeler) challenge related to a capital jury selection back in 1994. At the trial, when challenged for striking two Black women, the DA explained that he used a numerical rating system to evaluate jurors, which these two particular members of the venire scored poorly on. The trial court accepted the explanations and denied the challenges. The defendant was ultimately convicted and sentenced to death.

Now, 25 years later, the defendant challenges the conviction in a habeas petition. As part of that, he seeks discovery of the DA’s jury selection notes under a statute that permits post-conviction discovery under certain circumstances. The DA objected, arguing that the notes were opinion work product under Code of Civil Procedure § 2018.030(a) and thus immune from discovery. The superior court granted the discovery, writs were taken, and now, several years later, the case is before the Supreme Court.

The Court first does an extensive review showing the usefulness in reviewing jury selection notes in Batson cases. It then ducks the question of whether the notes are, in fact, opinion work product. Instead, it finds that the DA implicitly waived any work product protection when, at Batson step #2, he gave the purportedly race-neutral explanation that he or she was using an undisclosed numerical rating system and that these two jurors scored low on it. 

As the Court explains, like the attorney-client privilege, the work product protection is subject to two kinds of waiver—express and implied. Like any other privilege, work product is expressly waived under Evidence Code § 912(a) when a significant part of protected material is disclosed to another person. An implied waiver, on the other hand, occurs when the claimant puts protected material directly at issue such that disclosure is necessary to ensure a fair adjudication. This case presents the latter.

When the DA provided the explanation and the scores for the struck jurors, he put into question whether the he had, in fact, used the race-neutral numerical system as described. By doing so, the DA made “testimonial use” of the notes showing the operation of the system, such that the only way for the court or the defense to test the veracity of that explanation would be to review the notes in total

The Court also rejects the DA’s contention that there was no waiver because the explanation was coerced. No doubt, the court ordered the DA to come forward with a race-neutral explanation as part of the Batson inquiry. But there’s no coercion in the DA’s making the tactical choice to provide the explanation that was provided. The government can’t simultaneously point to its rating system as explanation while invoking privilege against disclosing it. 

Finally, the court notes that, to the extent the notes contain other opinion work product beyond the scope of the waiver, on remand, the trial court can examine them in camera and redact out any such material. 

Court of Appeal affirmed.

Peremptory Strikes for Peremptory Strikes

Akopyan v. Superior Court, No. B304957 (D2d7 Aug. 24, 2020)

This case got reversed and remanded last fall with an order that the trial court conduct a full Batson inquiry over the Defendants having exercised peremptory strikes against a number of Hispanic jurors. When the case got back to the superior court, Plaintiff exercised the other kind of peremptory strike—against the trial judge under Code of Civil Procedure § 170.6. The court accepted the strike and Defendant took a writ, which the Court of Appeal grants.

The issue here is the application of § 170.6 on a remand. The statute does permit a new strike after a reversal and a remand for a new trial. But conducting the Batson inquiry ordered in the prior reversal is not a “new trial” in any sense of that term. And policy-wise, it’s also particularly important for the same judge to do the full Batson analysis since that judge oversaw the allegedly problematic voir dire in the first instance. Only if the trial judge finds a Batson violation will there be a new trial. So the Court of Appeal says the trial court should have put the § 170.6 on ice till the Batson inquiry is done and then granted it only if he ordered a new trial.

Writ granted.

Can't Turn Back from the Batson Path

Unzueta v. Akopyan, No. B284305 (D2d7, Nov. 18, 2019)

In this med-mal case Plaintiff alleges that an anesthesiologist caused paralysis in her leg by mis-administering an epidural during childbirth. Plaintiff’s appeal raises our procedural issues: a jury selection issue, an issue regarding expert designation, an evidence issue, and a claim of misconduct during closing argument.

1.

The Baston challenge*—an objection to racial discrimination in the exercise of peremptory strikes of juror—has applied to civil cases for nearly thirty years. See Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991). But compared to the enormous volume of litigation over Batson challenges in criminal cases, civil Batsons are pretty rare. Maybe prosecutors are just more racist, but I kind of doubt it. More likely is that civil litigators just aren’t particularly attuned to the issue. Plus, there’s no civil habeas.

This case illustrates that. Doctor’s lawyer exercised six of her seven strikes against Latinx jurors. Plaintiff’s lawyers, however, didn’t raise it. The trial judge—who has been around for a long time and has some criminal experience—flagged the Batson issue. During selection of alternates the following day, the judge found that the first step of the Batson analysis—a prima facie of racial discrimination in the exercise of peremptories—was met. The second step generally requires the striking lawyer to offer a valid, non-discriminatory reason for the strike.

But the trial judge didn’t require Doctor’s lawyer to meet the second step for each juror, because it was “yesterday’s news.” Because Plaintiff failed to raise a Batson issue during voir dire the trial court declined to revisit it. After a defense verdict—the jury found that the standard of care had been breached, but no causation—Plaintiff tried to re-raise the issue in a new trial motion, which was denied. Plaintiff appealed.

The Court of Appeal starts off by explaining the three-step Batson analysis. First, the challenger needs to make a prima facie showing of the use of an impermissible criteria like sex or race. This usually entails showing a pattern. Like in this case, six of the seven peremptories exercised by the Doctor were against Hispanic jurors.

Next, if the court finds a prima facie case, the striker needs to come up with a non-discriminatory justification. It doesn’t need to reach the level of cause. Indeed, it can be weird or idiosyncratic.  But the explanation needs to be clear and reasonably specific.

Then in the third step, the court needs to decide if the explanation is credible, and if the challenger has met her burden to show purposeful discrimination.

As a threshold issue, the Court explains that the Plaintiff didn’t forfeit her challenge by failing to object to the first four Hispanic jurors who were struck on the first day. But when the court brought it up, Plaintiff’s counsel agreed. Although not a portrait of clarity, it was clear enough from the record what strikes plaintiff was objecting to, and the suspect classification at issue. And in any event, since the issue came up before jury selection was over and a panel sworn, the purpose of the forfeiture rule was satisfied.

That being the case, the trial court erred in not moving on to step two. Moreover, in applying step two, the trial court should have made the Doctor come up with neutral reasons for all of her strikes of Hispanic jurors, including those exercised the prior day.

The Court orders a limited remand on the Batson issue only. The trial court needs to conduct steps two and three for the six struck Hispanic jurors. Only if there is a finding of purposeful discrimination does there need to be a new trial. That seems a little odd, given the passage of time. But that’s what the case law requires.

2. 

On the expert designation issue, Doctor called an expert on causation who had been designated by the Hospital, which settled prior to suit, but who was not designated by Doctor. Plaintiff objected to Doctor calling a witness she had not designated. But Plaintiff deposed the expert before the settlement. Under Code of Civil Procedure § 2034.310, any party can call an expert that has been designated by some other party, so long as the expert was deposed. So Plaintiff’s objection was correctly overruled.

3.

As to the evidence, Doctor was convicted of misdemeanor theft in 1992 and failed to report that in her medical licensing paperwork a few times until the early 2000s. (After that, the licensors asked if she had sustained any new convictions, to which she truthfully answered no.) Plaintiff tried to get that in at trial, but the trial court kept it out under Evidence Code § 352.

The Court finds that keeping out the theft itself was an easy call under § 352. It was a misdemeanor, a long time ago, so it had little bearing on Doctor’s truthfulness.

It finds the licensing misreporting to be a harder call. But it declines to reach the issue because Plaintiff can’t show prejudice. Doctor’s trial testimony was that she met the standard of care. But the jury already found adversely on that element, so if it disbelieved the doctor more it wouldn’t have mattered. Causation, on the other hand, was proven up through experts, so Doctor’s being a liar wouldn’t have helped Plaintiff’s case.

4. 

Finally, Doctor’s lawyer said some not very nice things about Plaintiff during closing. Like that she wanted the jury to take the Doctor’s purse and give it to Plaintiff and that Plaintiff wanted to be supported for the rest of her life by Doctor.

Lawyers get a pretty wide berth during closing argument. They can’t say crazy prejudicial things like making unfounded accusations of Nazism, or appeal to sympathy by claiming that a Plaintiff verdict will put the Defendant in the poorhouse or lead to the end of public services. But they are free to hit hard. 

The first statement here—in one about the purse—was made in the context of causation and wasn’t over the line. And Plaintiff didn’t object or seek a curative instruction on the second, so an appeal on it was forfeited.

*     *     *

Reversed in part and remanded for Batson steps two and three.

* One of the federal judges I clerked for was a DA  and then, for a very long time, a state court trial judge who mostly handled criminal departments. Californians being a proud people, he was of the habit of referring to the various criminal procedures exclusive by state court case names, which often left us scrambling to figure out things like, “what the hell is Hovey voir dire?” So, FWIW, the state court equivalent to a Batson challenge is called a Wheeler challenge. And, Golden State proud, the California Supreme Court case decided Wheeler eight years before U.S. Supremes decided Batson.