Monday, October 16, 2017
IN MY OPINION (Column)
Here’s What Delia Metoyer Did to Warrant Discipline
By DONALD F. MILES
(The writer is a State Bar Court judge. The following is the recitation of facts in his opinion recommending imposition of one month of actual suspension on Los Angeles Deputy Public Defender Delia Metoyer. References to the record have been deleted. The full opinion appears on the State Bar website.)
Respondent is a Deputy Public Defender working in Compton branch of the Law Office of the Los Angeles County Public Defender. Prior to January 13, 2015, she had been assigned and had assumed responsibility for defending Matiwos Ghebrehiwot in an upcoming criminal trial in which her client was accused of sexually molesting a young child in violation of Penal Code 288(a), a felony. That trial was scheduled to commence on January 13, 2015.
During the week prior to the scheduled trial, Respondent experienced pain in her back when she was reaching for her keys. She went to a chiropractor on Thursday and Friday, January 8 and 9, and again on Monday, January 12, 2015. At some point during those treatments, the chiropractor recommended that Respondent have an MRI of her back. Respondent then scheduled this MRI to be conducted on January 16, 2015, although she was aware that she was scheduled to be in trial at that time in the sexual molestation case.
On January 13, 2015, Respondent and the prosecutor appeared for the scheduled trial. Respondent announced “ready” for the trial. However, the trial did not go forward that day because “the prosecutor trailed the matter to January 15, 2015.” Although the start of the trial was being moved at that time. Respondent did not indicate to the court that she either had or was then seeking to schedule an MRI for later that same week. Nor is there any evidence that she ever met-and-conferred with the prosecuting attorney about her desire to have an MRI conducted later that week. Instead, because she had subpoenaed witnesses to appear for the January 13 trial, she had the court order those witnesses to return to the courthouse on January 15.
Respondent did not receive any chiropractic care on either Tuesday or Wednesday, January 13 and 14, 2015. On Thursday, January 15, 2015, as she was walking to the scheduled trial call, she encountered Thomas Tyler (Tyler), the deputy in charge of the Public Defender’s office in Compton. Tyler was aware that Respondent had complained of back pain the prior week and asked Respondent how she was feeling. Respondent replied that her back was feeling better.
When the Ghebrehiwot case was called by the Supervising Judge on January 15,2015, Respondent again answered “ready” for trial. She did not disclose to the Supervising Judge her intent to have the trial not go forward on the following day. Instead, after the Supervising Judge ordered the parties and their counsel to go to Judge Eleanor Hunter’s department (Department H) to begin trial, Respondent asked the Supervising Judge to order three subpoenaed witnesses to go to that department for trial as well, and she sought a body attachment for two additional witnesses, whom she indicated had been subpoenaed but who had not appeared that morning.
When Respondent arrived in Department H, she was observed by the court to be carrying large binders, a large bag, and wearing high heels. “She showed no signs of distress and had no difficulty walking. She appeared physically and mentally fit for trial.” As was the judge’s practice. Respondent and the prosecuting attorney were invited by the court into chambers for informal pretrial discussions concerning witnesses, motions and trial estimates, Respondent’s client remained in the courtroom. In the meantime, the court made arrangements for a panel of prospective jurors to be sent to Department H so that jury selection could commence as soon as possible.
During the course of the in-chambers discussions, which lasted approximately 20 minutes, the prosecution indicated its intent to call the alleged sexual molestation victim, a seven-year old girl, to testify on the following day, January 16. Because the young girl would be required to miss school in order to testify, the prosecution indicated a desire to have some certainty regarding the timing of her testimony. At that point, Respondent informed the court that she had injured her back the prior week, had a doctor’s appointment scheduled for the next day, and needed to take the day off.
The court then inquired whether Respondent had raised the issue with the Supervising Judge and was informed that Respondent had not. The judge then informed Respondent that she would need to re-schedule her appointment because it was a short trial and Respondent had not previously raised the issue.
During the trial of this disciplinary matter, Respondent testified repeatedly that she was not suffering any physical pain on January 15, 2015. Nonetheless, in response to the court’s indication that she would need to re-schedule her medical appointment, Respondent became emotionally upset and started “whimpering” (although the court did not see any tears being shed). Respondent then hostilely accused the court of being “cruel,” of not caring about Respondent’s health, and of putting the interests of the case over the welfare of Respondent’s three children. With these comments by Respondent, the court stated that any further discussion of the issue would be in the courtroom and on the record, and directed the attorneys to re-locate to the courtroom. Respondent then asked whether she could first use the judge’s private bathroom, which was adjacent to the court’s chambers, and was told by the judge that she could
The prosecutor and court then went into the courtroom, where Respondent’s client remained seated, and waited for Respondent to arrive in order to put on the record the issue of Respondent’s request for time off from trial. The panel of prospective jurors was waiting in the hallway outside the courtroom. Respondent never arrived. After waiting for 10-15 minutes, the judge had her staff check the bathroom, only to discover that Respondent was no longer there. The staff then tried unsuccessfully to reach Respondent by telephone.
Unbeknownst to the court. Respondent had called her supervisor, Rhonda May-Rucker (Rucker), from the judge’s bathroom. Respondent did not tell Rucker where she was calling from; did not tell Rucker that the judge and other parties were in the courtroom, waiting for Respondent to join them for the scheduled trial; and did not ask Rucker to come to the courtroom. During the trial of this matter, Respondent said, and sought to demonstrate, that she was sufficiently out-of-control emotionally during this telephone call that she’s not sure that she was able to communicate anything to Rucker other than the fact that she was emotionally upset This was confirmed at trial by Rucker. As a result, Rucker believed that Respondent was in her own office, just down the hall from Rucker’s office. Rucker then instructed Respondent to come to Rucker’s office and then called Tyler and asked him to also come to her office.
After talking with Rucker, Respondent did not go into the courtroom to inform the court of her need to sec her supervisor or of her concern about being unable emotionally to continue with the trial. She also did not make any effort to contact the court’s staff to request an additional session with the court in chambers about the situation. Instead, Respondent left the bathroom and went surreptitiously through a different courtroom to return to her office without being seen by Judge Hunter or anyone connected with the pending trial.
When Respondent arrived at Rucker’s office, Respondent was visibly upset, proclaiming that everyone was “out to get her” and that she “couldn’t take it anymore.” When she explained that Judge Hunter was unwilling to allow her to take off trial in order to have the MRI, Rucker sought to calm her down by indicating that the judge’s decision was “no big deal” and that attorneys in trial were routinely required to reschedule medical appointments by the court. When Respondent then replied that her health was important, complained that she had been unable even to walk the prior week, and insisted that the medical appointment needed to be kept, Rucker said that she would call the judge to see if some accommodation could be reached.
Rucker then telephoned Judge Hunter, explained that Respondent was in her office, and renewed Respondent’s request for time off from trial the next day for the scheduled MRI. Judge Hunter’s initial reaction was surprise that Respondent was in Rucker’s office, indicating to Rucker that Respondent was supposed to be in her courtroom and that the judge needed her to be there. Rucker then advocated on Respondent’s behalf, arguing that MRI’s are difficult to secure and requesting the court to at least allow Respondent to take off just the morning of January 16. The trial judge agreed with Rucker to that accommodation but told Rucker that Respondent needed to come back immediately to the courtroom.
Respondent was present in Rucker’s office and heard Rucker’s portion of the conversation. When the telephone conversation ended, Rucker informed Respondent that the judge had agreed that Respondent could keep her MRI appointment and that Respondent needed to return immediately to the courtroom to resume the trial. On being informed of this favorable development, Respondent did not thank Rucker for her successful intervention. Nor did she hurry back to Judge Hunter’s courtroom, where the judge, the prosecutor, her client, a panel of prospective jurors, and at least three witnesses were waiting. Instead, she informed Rucker and Tyler that she was refusing to go, stating “I can’t take this anymore.” Despite Rucker’s efforts to persuade Respondent to return to the courtroom, including Rucker’s expressed concern that Respondent’s refusal to return to the trial would “look like you’re abandoning your client,” Respondent remained steadfast in her refusal to return and eventually stated that she needed to see a doctor. Rucker then told Respondent to go to her office and then contacted her office’s Human Resources Department, both to get information about an Employee Assistance doctor and to receive guidance on how to handle Respondent’s refusal to resume the pending trial. Rucker was then given instructions that Respondent should be immediately taken out of the trial rotation and that another attorney should be sent immediately to Judge Hunter’s courtroom to seek a continuance of the trial. Rucker directed Tyler to go to Department H, both to seek a continuance of the trial and to reclaim the personal effects left there by Respondent. Rucker then went into Respondent’s office and informed her of the decision to remove her from the Ghebrehiwot case and from the entire trial rotation. Respondent then left the building for a medical appointment she had just scheduled through the Employee Assistance Plan.
In turn, Tyler went to Judge Hunter’s courtroom, where the other participants, including Ghebrehiwot, were awaiting Respondent’s anticipated arrival. Tyler explained to the court that Respondent was no longer on the case and asked for a continuance of the trial, which was granted. The judge, however, ordered everyone to come back to court at 1:30 that afternoon. That afternoon, the court indicated that it was initiating proceedings for the imposition of sanctions against Respondent.
An OSC re: sanctions was heard on April 2, 2015. Before the hearing of the OSC, Respondent sought unsuccessfully to disqualify Judge Hunter from hearing the issue of sanctions. Respondent then offered her declaration, executed April 1,2015, in response to the OSC, and oral argument was presented through her counsel. In her declaration, Respondent denied abandoning her client, denied violating a court order, did not expressly acknowledge refusing to return to the courtroom, and sought to justify her actions with accusations that the judge had treated her ‘’unfairly and in a demeaning manner.”
On April 10, 2015, the court made findings that Respondent had violated a court order and abandoned her client, sanctioned her $1500 pursuant to Code of Civil Procedure section 177.5, and stated in its order that the court would be reporting Respondent to the State Bar, which the court thereafter did.
Respondent paid the subject sanctions, although she was subsequently reimbursed by the county for the sanctions. Respondent then failed to timely self-report the sanction to the State Bar as required by Business and Professions Code section 6068, subdivision (o).
Respondent appealed the court’s order, contending that she had been denied due process and that the court abused its discretion in imposing sanctions. The Court of Appeal affirmed the lower court’s sanctions award, finding both no abuse of discretion and that “Nothing in the record demonstrates bias or a denial of due process.” The sanctions order is a final order.
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