Tuesday, October 4, 2016
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Conviction Reversed Because Judge Denigrated Plumbers
Majority of C.A. Panel Says Defendant Was Prejudiced by Comments During Voir Dire Because Alibi Witness Was a Plumber; Presiding Justice Rothschild Dissents
By a MetNews Staff Writer
The Court of Appeal for this district, in a 2-1 decision, yesterday reversed convictions of a man for first degree murder and attempted first degree murder because the judge, in admonishing prospective jurors against prejudgment, told of her “horrible” experiences with plumbers and a disinclination to believe them—deemed by the majority to be prejudicial because the alibi witness was a plumber.
Justice Jeffrey W. Johnson wrote the opinion, which was not certified for publication, for Div. One’s majority, and was joined by Justice Victoria Chaney. Presiding Justice Frances Rothschild dissented.
At issue was the effect of Los Angeles Superior Court Judge Eleanor J. Hunter’s discourse on her encounters with plumbers. She told the initial group of prospective jurors:
“The law says that you can’t prejudge anybody. You can’t automatically give somebody more credibility or automatically give them less credibility before they even take the stand. And I always use this example—and I’m sorry if somebody here is a plumber, but I’ve had horrible experiences with plumbers. I’ve just had horrible—during remodels or whatever, just horrible experiences. So if I hear somebody is coming in, and I hear he’s a plumber, I’m thinking, ‘God, he’s not going to be telling the truth.’ So obviously I have already prejudged that person, and I wouldn’t be able to be fair. Everyone who takes the stand, you start at the same position. Now, once they get up on the stand and they testify, that’s when you start to use your skills about judging credibility.”
Hunter added that once testimony began, “you can start to evaluate,” but “you can’t do it beforehand.”
Mistrial Sought
The defense lawyer moved for a mistrial, explaining that the alibi witness is a plumbing contractor.
Hunter denied the motion, but offered to “tell the jury that was by way of example, and that’s a personal thing.” The defense lawyer responded:
“I’m just going to make a tactical decision to leave it alone. I’d rather not accentuate it in their minds.”
The following day, a new group of prospective jurors came in, and Hunter desisted from recounting her experiences with plumbers. Six of those who did hear the remarks wound up on the jury, according to the defense lawyer’s count.
The prosecutor argued that the alibi witness had lied.
“The court’s statement that plumbers who came into court were liars validated the prosecutor’s argument,” Johnson said, thus “irreparably damaging” defendant Vincent Tatum’s “chance of receiving a fair trial.”
He declared:
“The court abused its discretion when it denied the motion for a mistrial. This is especially true as defense counsel moved for a mistrial on the first day of voir dire, when granting a mistrial or dismissing the jury panel would not have caused undue delay. No admonition or instruction could have cured the prejudice that resulted from the trial court’s statement that it believed a plumber would lie in court, when Tatum’s alibi witness was a plumber who the prosecution argued came to court to lie for his friend. Under these circumstances an instruction would have been as ineffectual as the famous words spoken by the Wizard of Oz, ‘Pay no attention to that man behind the curtain!’ (The Wizard of Oz (Metro-Goldwyn-Mayer Aug. 25, 1939).)”
Rothschild’s Dissent
Rothschild protested:
“No doubt the trial judge should not have shared her personal anecdote about plumbers during jury voir dire. Nonetheless, in my view, the court’s comments about plumbers did not usurp the jury’s function as the judges of witness credibility. And appellant has not shown the trial court abused its discretion when it denied his motion for a mistrial based on the court’s statements.
“The record does not support the majority’s characterization of the judge’s comments. I do not think the jurors could have reasonably understood the court’s statements to mean that plumbers are liars or that jurors should not believe them.”
She went on to say:
“I also disagree with the majority’s conclusion that a timely admonition would not have cured any prejudice. Once the court learned that appellant’s alibi witness was a plumber, the court could have addressed the issue in the moment, instructing the jury, for example, “Ladies and gentlemen, defense counsel informs me that a defense witness is a plumber. I used the example of my bias about plumbers as a way of emphasizing how we might have biases against people for different reasons, and we need to put them aside when it comes to hearing the testimony in this case. I will instruct you separately on the factors you should use to evaluate a witness’s credibility. You should do so based on those factors, not based on any bias that I or you may have towards others.” Such an instruction would have immediately clarified the point of the comment, and dispelled any prejudice.
“Any possible prejudice from the comment could also have been addressed through juror voir dire. Counsel (or the court) could have asked the potential jurors questions to determine whether the jurors heard the judge’s comment about plumbers and if they did, to explore the extent to which the remarks about plumbers gave rise to any prejudice against appellant. And counsel could have then used juror challenges to remove individual jurors whose responses indicated bias or prejudgment notwithstanding the court’s clarification and admonishment. Appellant’s lawyer did not do any of these things, nor did she ask the court to conduct such an inquiry of the jury.”
The case is People v. Tatum, B258517.
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