Metropolitan News-Enterprise


Thursday, April 17, 2008


Page 1


Order Granting Public Defender New Trial Left Standing

Justices Deny Review of Ruling That Juror in Malpractice Suit Committed Misconduct


By a MetNews Staff Writer


The California Supreme Court yesterday left standing a ruling by this district’s Court of Appeal granting the Public Defender’s Office a new trial in a malpractice action by a man who was wrongfully convicted on trumped up charges arising out of the LAPD Rampart scandal.

The justices, at their weekly conference in San Francisco, voted 6-0 to deny Javier F. Ovando’s review petition. Chief Justice Ronald M. George was absent and did not participate.

The Court of Appeal’s Div. Three ruled in January in Ovando v. County of Los Angeles, 159 Cal.App.4th 42, that juror misconduct warranted a new trial in the action by Ovando, whose convictions for assaulting two police officers and brandishing a gun in their presence were overturned after the scandal broke.

The court held that a juror who had starred in a motion picture explicitly referencing the scandal committed prejudicial misconduct when she intentionally concealed her knowledge of the scandal during jury selection.

Shot by Officers

Ovando was paralyzed in 1996 when rogue former officers Rafael Perez and Nino Durden, who were members of the Community Resources Against Street Hoodlums anti-gang unit of the LAPD Rampart Division, shot him without justification, planted a gun on him, and then presented a false story to cover up the actual facts.

His conviction was overturned when Perez—who was also a cocaine dealer—agreed in a plea bargain to disclose wrongdoing within the department by other officers after he was arrested for removing drugs from a police evidence room.

Ovando filed a civil rights suit against the city which was ultimately settled for $15 million. He also filed suit against the county and Deputy Public Defender Tamar Toister, alleging that Toister had committed malpractice by failing to adequately investigate the facts and circumstances of his alleged crimes and the officers’ backgrounds, and by failing to preserve the testimony of percipient witnesses who could have exonerated him.

Judgment Against Attorney

Over the objection of the defendants—who argued that Ovando had not filed his claim against the county in a timely manner—trial was held in 2005 and the jury returned a special verdict finding Toister negligent and awarding $6.5 million in damages. Toister and the county then moved for a new trial based, among other grounds, on alleged juror misconduct by Jennifer Salinas.

While conducting voir dire, the trial judge described the events that gave rise to Ovando’s injuries and then asked potential jurors if they had heard of the two officers or the scandal. When some of the jurors, including Salinas, raised their hands in response, the judge then asked which of the jurors had not heard of the scandal, to which Salinas also raised her hand.

The next morning the judge requested that potential jurors who had indicated some knowledge of the scandal present themselves for further questioning, but Salinas did not come forward and was not questioned. She was ultimately included in the jury.

Toister and the county argued that Salinas had improperly concealed knowledge of the scandal given that she had played a prominent role in a motion picture titled “Gang Warz” which, according to the defendants, depicted a rogue police officer—patterned after Perez—whose perjured testimony resulted in the conviction of a gang leader.

Defendants’ Claims Disputed

Salinas disputed the defendants’ claims.  Although she conceded that she had seen the film at two screenings, she claimed that she had not been biased as a juror, contending that her experience as an actor provided her with no “special knowledge of, or familiarity with” the scandal, and that she had answered the trial judge’s questions truthfully.

The judge rejected Salinas’ contentions, noting that her role in the film required her to read and be familiar with the entire script, and that several other jurors had corroborated her misconduct through declarations indicating that Salinas was “very familiar” with the scandal, knew “more about it than any of the other jurors,” and discussed aspects of the scandal that were not in evidence.

The trial court ordered a new trial, concluding that Salinas’s misconduct was prejudicial because her failure to disclose her knowledge of the scandal created an inference that she harbored a concealed bias, and because her failure to answer truthfully frustrated counsel’s efforts to reveal any actual or potential bias and to excuse her either for cause or by using a peremptory challenge.

Writing for the Court of Appeal, Justice Walter Croskey said the trial court acted within its discretion, saying that the record failed to rebut a “presumption of prejudice.”

Scandal ‘Volatile Subject’

The scandal, Croskey wrote, “was a volatile subject that provoked strong feelings of revulsion in some members of the public toward tainted police officers and toward the police department in general, disappointment with the criminal justice system that produced so many false convictions, and sympathy for the victims.”

He also noted that the jury returned its verdict by the minimum vote of nine to three.

In other conference action, the justices agreed to decide whether the South Coast Air Quality Management District violated the California Environmental Quality Act by issuing permits permitting ConocoPhillips Company to produce ultra low sulfur diesel at its Wilmington Refinery.

This district’s Div. Two ruled in December’s Communities for a Better Environment v. South Coast Air Quality Management District (ConocoPhillips Company), 158 Cal.App.4th 1336, that the district should have conducted a full-scale environmental review because opponents presented “substantial evidence supporting a fair argument that the project’s nitrogen dioxide emissions may have a significant effect on the environment.”

The vote to hear the case was 4-0, with George absent and Justices Joyce L. Kennard and Carol Corrigan recusing themselves.


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