Metropolitan News-Enterprise


Friday, March 18, 2011


Page 3


Order Granting Retrial to Gay Ex-LAPD Officer Stands


By a MetNews Staff Writer


The California Supreme Court has let stand an order granting retired Los Angeles police Sgt. Mitchell Grobeson a new trial, on grounds of juror misconduct, in his discrimination suit against the city.

The justices, at their weekly conference in San Francisco Wednesday, unanimously denied review in Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778.

The Court of Appeal for this district, Div. Eight, on Dec. 2 of last year affirmed the new trial order by Los Angeles Superior Court Judge James R. Dunn, who found that one of the jurors had made up her mind about the case, and told another juror that she did so, prior to deliberations.

The ruling means continued life for the 15-year-old suit by the LAPD’s first openly gay officer, who joined the department in 1981, was promoted to sergeant in 1986, and was granted stress-related disability retirement in 1997.

Grobeson, who recounted his experiences in the book “Outside the Badge,” claims that an anti-gay culture within the department led to his being harassed, retaliated against, falsely subjected to allegations of insubordination, repeatedly turned down for promotions for which he was qualified, and ultimately forced out.

The city argued that Grobeson’s rights were respected and that actions taken against him, including about 200 days’ worth of suspensions, were justified in light of his refusal to cooperate with city policies, including his attendance at gay community events in uniform without official permission.

The jury found in favor of the city on all of Grobeson’s claims in December 2007, after a five-week trial. Jurors found by a vote of 11-1 that the city was not liable for harassment; by a vote of 12-0 that Donald Watson, the commander in charge of the personnel division, did not personally harass the plaintiff; and by a vote of 10-2 that Grobeson was not constructively discharged.

On all of Grobeson’s other claims, the jury found for the city by a vote of 9-3.

In moving for a new trial, Grobeson’s lawyers filed several declarations, including one by a juror who claimed that a fellow juror—identified only as Juror Kishiyama—said during a break in the testimony of Grobeson’s commander that she had “made up my mind” and was “not going to listen to the rest of the stupid argument.”

In another declaration, an attorney for Grobeson, Laura Faer, declared that she had telephoned the juror in question and that the juror said she had made up her mind during the second week of trial. The city responded with a declaration by the juror denying the comments attributed to her in both declarations and saying she did not make up her mind prior to deliberations.

Dunn concluded that the juror had made up her mind prior to deliberations, that this constituted egregious misconduct, and that a new trial was required as to those claims resolved by 9-3 votes, because the juror’s disqualification might have resulted in a different verdict. He also granted a new trial as to constructive discharge, saying jurors appeared confused by some of the questions on the verdict form.

On appeal, the city argued that the juror either did not make the statements attributed to her, or that she did not make the comment to her fellow juror until after closing arguments.

But Justice Madeleine Flier, in her opinion for Div. Eight, said the appellate court was required to uphold the trial judge’s order because it was supported by substantial evidence.

The city’s claim that the juror’s statement was only an “isolated comment” heard by only one juror, “ignores reality, as well as the standard of review,” the justice wrote.

“The reality is that this juror was biased and ignored every instruction on this subject by the trial court,” Flier said.

Flier also rejected the argument that the comments were harmless given the judge’s repeated admonitions to keep an open mind. “Unfortunately, it stands to reason that a juror who is wrong-headed enough to make up her mind two weeks into a five-week trial, and even tells another juror about it, is not going to listen to the trial court’s admonitions to keep an open mind,” the jurist wrote.


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