Thursday, July 9, 2015
C.A. Blasts Lawyer Over ‘Nazi’ References, Overturns Verdict
By KENNETH OFGANG, Staff Writer
Repeated misconduct by a Caltrans lawyer, including multiple attempts to associate the plaintiff with Nazism, require reversal of a jury verdict in favor of the department, the Fourth District Court of Appeal has ruled.
Div. Three granted publication of its June 12 opinion awarding Donn Martinez, a member of the “Set Free Soldiers” motorcycle group, a new trial on his claim that a dangerous condition at the complex interchange of the Santa Ana, Garden Grove, and 57 freeways—“the Orange Crush”—caused him to lose control of his motorcycle and suffer bodily injuries.
The court also ordered that attorney Karen Bilotti be referred to the State Bar for possible disciplinary action. Bilotti yesterday declined to comment on the court’s opinion.
Martinez was hurt when he hit a raised divider, known as a “B4 curb,” while riding in a funeral procession going from the southeastbound Santa Ana to the eastbound Garden Grove. He claimed that the curb was particularly dangerous to motorcycles.
Orange Superior Court Judge James Di Cesare granted the plaintiff’s motions in limine, barring the state from referring to Martinez’s membership in a motorcycle group, his 2003 employment termination, and any reference to Caltrans’ strapped finances.
The plaintiff’s counsel had particular reason to want to keep out evidence regarding group affiliation, Justice William Bedsworth wrote in a footnote to his opinion for the Court of Appeal, because “[t]he Set Free Soldiers have been known to take on the Hell’s Angels…and a jury might think of them primarily as a motorcycle gang if they were reminded often enough.”
Dozens of Violations
Bilotti violated those orders more than two dozen times and made other improper comments that prevented the plaintiff from obtaining a fair trial, Bedsworth concluded.
The justice encapsulated the case:
“Generally, what happened is this: …Bilotti would ask a question in clear violation of the trial court’s in limine orders. The question would usually have the effect of gratuitously besmirching the character of…Martinez. An objection from Martinez’s counsel would follow. The trial court would sustain the objection. Bilotti would then ask the same question again. The trial court would sustain the objection again. And the same thing would happen again. And again. And again. And again.
“Because of the cumulative effect of Bilotti’s misconduct we must reverse the judgment….While Judge Di Cesare showed the patience of Job – usually a virtue in a judge – that patience here had the effect of favoring one side over the other. He allowed Bilotti to emphasize irrelevant and inflammatory points concerning the plaintiff’s character so often that he effectively gave CalTrans an unfair advantage.”
Bedsworth, a veteran sports official, continued:
“Imagine a football game in which the referee continually flagged one team for rule violations, but never actually imposed any yardage penalties on it. “
Bilotti not only violated the in limine orders, she also broke “Godwin’s Law,” the Internet adage invented by attorney and author Mike Godwin, Bedsworth went on to say.
“Broadly speaking, Godwin’s law is that the first side in an argument to compare the other side to Hitler or the Nazis loses,” the justice wrote. “Apparently unaware of this rule, Bilotti used Martinez’s damaged motorcycle to make a gratuitous, out-of-the-blue attempt to link Martinez to Nazis.”
The reference came up, the jurist explained, at the end of the lawyer’s cross-examination of the plaintiff’s wife, after testimony regarding Martinez’s ordination into the clergy. Bilotti asked the judge if she could show the jury a photo of Martinez’s motorcycle showing the “tough-guy logo of the Set Free Soldiers,” which features World War II German-style military headgear, commonly referred to as a “Fritz helmet.”
When Di Cesare reserved ruling on the request, Bilotti “immediately played the Nazi card,” Bedsworth explained, asking: “At the time of the accident, the motorcycle that your husband was riding had a skull picture on it wearing a Nazi helmet; right?”
The plaintiff side then moved for a mistrial, in opposition to which Bilotti acknowledged that she was seeking to rebut the positive inference created by the reference to the plaintiff as a clergyman. The motion was denied.
‘Nazi’ Six Times
The defense lawyer, Bedsworth explained, went on in closing argument “to psychologically link Martinez to Nazis by paraleptically using the word ‘Nazi’ six times in rapid succession….And this time the link was stronger – Bilotti wasn’t just referring to a mere article of clothing but to Martinez himself.”
Bilotti’s conduct was “particularly egregious,” the justice wrote, because she was admittedly seeking to besmirch the plaintiff’s character.
The trial judge’s error in allowing her to do so, he continued, wasn’t harmless. Not only was the misconduct repeated and serious, the judge’s failure to stop it resulted in a “general atmosphere” that prevented the plaintiff from obtaining a fair determination, Bedsworth said, regardless of the judge’s cautionary instructions.
“By simply ignoring the trial judge’s rulings, Bilotti made it inevitable that the jury would conclude it didn’t have to pay attention to the trial judge either,” he wrote. “After all, defense counsel was repeatedly ignoring what he told her in front of their very eyes and getting away with it. He took no corrective action whatsoever. The authoritative force of his instructions was seriously diminished by Bilotti’s conduct.”
The case is Martinez v. State of California, 15 S.O.S. 3519.
Copyright 2015, Metropolitan News Company