Metropolitan News-Enterprise


Tuesday, February 14, 2017


Page 8



Elwood Lui: Following in the Footsteps of David Yaffe




Los Angeles Deputy District Attorney David Berger was slammed last Aug. 31 in a Court of Appeal opinion in connection with his handling of a restoration-of-sanity proceeding. At the tail end of the opinion, authored by Elwood Lui—now an associate justice of this district’s Div. One, and in all probability the next presiding justice of Div. Two—the clerk is instructed, upon issuance of the remittitur, to ship a copy of the opinion to the State Bar, and to advise Berger that he’s been reported for possible disciplinary purposes.

 A disciplinary investigation surely is warranted. I don’t mean by the State Bar…its Office of Trial Counsel has already examined Berger’s conduct, and found no basis for any charges.

I’m referring to the need for the Commission on Judicial Performance to look into Lui’s actions.

Berger was, at the time the opinion was issued, a candidate in a run-off for a Los Angeles Superior Court open seat.

Did Lui, as might well be suspected, misuse his position as an appellate court jurist by seeking to impair the chances of a candidate for a judicial office—that is, Berger—and thus bolster the prospects of the election of his rival, then-Deputy Attorney General (now Judge) Kim L. Nguyen?

It is perhaps telling that Lui won’t discuss the matter, notwithstanding that the Aug. 31 opinion is final and nothing relating to the matter of his own conduct in resolving the appeal could conceivably be germane to any future proceedings in the case when it returns to the Superior Court, on remand.

Although Lui’s opinion was not certified for publication and thus cannot be cited in litigation, it could be—and was—cited by persons connected with his rival’s campaign, seeking news coverage to the effect that the Court of Appeal had adjudged Berger guilty of unethical conduct.

It is clear that Lui’s opinion had no actual impact on the election outcome. But Lui, at the time he filed his opinion, could not have known just what the effect would be.

Berger—who was endorsed by the Los Angeles Times, as well as this newspaper—lost to Nguyen largely because an influential political consulting firm, for which her husband works, was able to tie up the major slates. Too, without coming up with any fanciful description of what she does for a living, but using her actual office title (“Deputy Attorney General”), she had a more impressive ballot designation than Berger’s (“Violent Crimes Prosecutor”).

While a tip-off by partisans of Nguyen’s campaign concerning the attack on Berger in Jin did trigger a news report in the MetNews, I am unaware of any note being taken of it in any mass circulation newspaper, or any other newspaper, at all, let alone there being any electronic news coverage.

Assuming that Lui knew when he filed his opinion that Berger was a candidate—and given his political astuteness, I can’t imagine that he did not—he must have realized the rebuke in that opinion could be used to harm Berger’s chances…though he could not have known, of course, whether his denigration of the DDA would receive major coverage, or none.

Twenty years earlier, major coverage was indeed attained by then-Los Angeles Superior Court Judge David Yaffe—in the Los Angeles Times and other media outlets picking up on the story—after he launched into a tirade from the bench against then-District Attorney Gil Garcetti just three weeks before the 1996 primary election in which Garcetti faced five challengers. Decrying Garcetti’s “three strikes” policies, Yaffe declared that the DA was either a “craven coward” or an “arrogant bureaucrat.”

Clearly aware that his utterance came right before an election and that his remarks were apt to receive public attention, Yaffe specified that he had “no information and no reason to believe that anybody trying to take the present district attorney’s job would do this any differently or better than [Garcetti] would” but added that “this situation demands a public statement by this court, and that’s why I am making it.”

His “public statement” in connection with a nonjudicial race—notwithstanding that it was from the bench rather than at a press conference—clearly contravened provisions of the Code of Judicial Ethics, even if he did not go so far as to endorse a candidate in a nonjudicial contest, which is proscribed.

It soon emerged that Yaffe was oblivious to the extent of the past criminality of the defendant whose treatment by the DA’s Office was assumed by him to be overly harsh.

Lui’s conduct does tend to evoke a recollection of Yaffe improperly interjecting himself into a political contest.

While judges are, under the code, at liberty to endorse judicial candidates, Lui did not opt to support Nguyen, at least openly. A question does arise as to whether he consciously used a judicial opinion as a vehicle for potentially doing harm to Berger’s chances, for sake of serving Nguyen’s cause. If he did not have that intent at the time the opinion was filed, it remains that he was made aware of the potential political effect of the opinion before it became final, and took no action to dull that effect by voting to grant the rehearing sought by the Office of Attorney General, or to vacate the opinion in order to mull the justifiability (and timing) of his assault on Berger.

Lui’s opinion came in People v. Jin, B267638. The appellant had been found not guilty of mayhem, by reason of insanity; was initially confined in a state mental hospital but was presently in a community outpatient treatment facility; had sought an order of release based on restoration of sanity; and was denied that relief in a proceeding before then-Los Angeles Superior Court Judge Elden Fox (now retired).

Jin had become eligible to institute a proceeding to determine whether his sanity had been restored after one year in the outpatient facility (a fact brought to the jury’s attention by Jin’s lawyer, through questioning of witnesses). He was allowed to bring such a proceeding (a “trial” before a jury) once a year.

What was the nature of Berger’s transgression?

As Lui tells it:

“At the end of his cross-examination, the [deputy] district attorney asked Jin if he was confident about letting the jury decide the issue of restoration of sanity. Jin stated he was. The district attorney then asked, ‘And you’ll be back in another year if they don’t [allow you] to be restored?’ Before Jin could respond, the court sustained an objection and admonished the jury to disregard the district attorney’s statement.”

He went on to say:

Here, the prosecutor’s “question” to Jin about the possibility of renewing his application for restoration of sanity in a year appears intended to, and certainly did, inform the jury that a finding in this case of no restoration to sanity would not be the end of the road for Jin. The prosecutions comment thus gravely interfered with the deliberative process by giving the jury an opportunity to defer its decision to another jury and another day. Given the high likelihood the jury understood and improperly applied the information in making its findings in this case, the undermining of the jury’s fact-finding function and deliberative process undeniably constituted prosecutorial misconduct….

Even if the prosecutor’s actions, taken together, did not comprise a pattern of conduct so egregious that it infected the trial with such unfairness as to result in a denial of due process, reversal is nevertheless warranted if it is reasonably probable the prosecutor’s use of deceptive or reprehensible methods to persuade the jury affected the outcome of the trial.


In light of the totality of the evidence, Lui proclaims in his opinion, a reversal is required, with a remand for a new restoration-of-sanity trial.

Yet, a look at the evidence that Lui dutifully recites can rouse wonderment as to how a conscientious jury could have done other than to find no restoration of sanity. While factors pointing to progress on the part of Jin were shown, his potential dangerousness and bizarre conduct also were established, rendering his release foolhardy.

In fact, Jin has been transferred back to Patton State Hospital, rendering him statutorily ineligible for the new restoration-of-sanity trial that Lui’s opinion ordains. He will not again become eligible until a year after his return, if ever, to a community outpatient treatment facility.

What is mystifying is how Berger’s one-liner—which the DDA has himself termed (in correspondence with the State Bar) as “unfortunate”—could result in a reversal where it triggered an objection, which was sustained, with an admonition to the jury to ignore the remark. This is not such stuff as reversals, ordinarily, are made of.

And such comments (typical of British barristers, which Berger formerly was) do not commonly precipitate a call by the Court of Appeal for State Bar discipline.

The fact that Berger was a candidate does spawn a question as to whether the content of Lui’s opinion and the timing of its release were election-related.

There are two problems here.

The first is that Lui filed an opinion not only casting trial counsel in unfavorable light, but suggesting the prospect of State Bar discipline of him—doing so, notwithstanding that he was a candidate for a judgeship, and that absentee balloting was set to begin slightly more than a month off.

This was hardly a matter in the public’s eye where deferring resolution would have disappointed the public’s expectation and been inimical to its interest.

There was no urgency in connection with the filing of an opinion in the case, and the timing of the filing created the distinct potential of prejudice to a candidate’s election effort.

At a minimum, Lui—even if he actually rooted for Berger and voted for him—created the appearance of impropriety.

The second problem is that no input was invited from Berger, who might have drawn attention to factors not put forth by the Office of Attorney General (as he did in his communication to the State Bar). It is true that Berger was not a party in the case, and was, strictly speaking, vested with no due-process rights. But was he not cast in the role of a de facto party, whose reputational interests should not have been blithely injured without his side of the story being received?

I submit that any time the Court of Appeal decides to open fire on a nonparty—especially where it calls for official action against that person—it ought, as a matter of policy, founded on fairness, to afford an opportunity to the person to be heard, if only by letter brief. That is contrary to the court’s custom, but consonant with what should be the mission of all courts: achieving justice.

The failure to afford such an opportunity to a candidate could conceivably affect the result of an election.


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