Tuesday, January 22, 2008
Appeals Court Orders New Trial in Suit Against Public Defender
By STEVEN M. ELLIS, Staff Writer
Juror misconduct warrants a new trial in a malpractice action against the Los Angeles County Public Defender’s office by a man who was wrongfully convicted on trumped up charges arising out of the LAPD Rampart scandal, this district’s Court of Appeal ruled Friday.
Affirming a trial court order in a suit by Javier F. Ovando, whose convictions for assaulting two police officers and brandishing a gun in their presence were overturned after the scandal broke, Div. Three 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.
Ovando was paralyzed in 1996 when rogue former Los Angeles Police Department 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.
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 that Ovando had suffered $6.5 million in damages as a result of his conviction and imprisonment.
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 court 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 in the Rampart District patterned after Perez whose perjured testimony resulted in the conviction of a gang leader. They also noted that the film began with a text scroll setting forth a synopsis of the scandal as background to the fictional events depicted in the film.
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.
On a motion for reconsideration by the defendants, 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.”
“The Rampart scandal 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. In light of these circumstances, and the nine to three verdict in favor of a finding of liability, we cannot conclude that there is no reasonable probability either that Salinas was biased against the defendants or that her bias affected the result.”
Plaintiff’s counsel Douglas F. Galanter declined comment on the decision, saying that he was still in the process of reviewing it.
Chief Deputy Public Defender Robert E. Kalunian told the MetNews that his office was “very happy the [Court of Appeal] agreed with the trial court and recognized that the jury’s verdict couldn’t stand under the law.”
However, he said that he did expect an appeal by Ovando, and noted that the issue of the timeliness of Ovando’s claim would need to be re-litigated before the matter proceeded to trial again, given that Div. Three also held that Ovando would need to plead and prove compliance with the claims presentation requirement or show an excuse for noncompliance in order to establish the defendants’ liability.
Croskey was joined in his opinion by Presiding Justice Joan D. Klein and Justice Patti S. Kitching.
The case is Ovando v. County of Los Angeles, B186504.
Copyright 2008, Metropolitan News Company