Thursday, April 5, 2018

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Judicial Elections: Los Angeles Superior Court Office No. 118

Prosecutor, Criminal Defense Lawyer Clash in Two-Person Race

By ROGER M. GRACE, Editor

Los Angeles Deputy District Attorney Troy Davis and criminal defense lawyer David D. Diamond are competing for an open seat in the June 5 primary election, with Davis having won the first round: a Superior Court contest over the legitimacy of Diamond’s chosen ballot designation of “Police Commissioner/Attorney.”

Los Angeles Superior Court Judge Mary Strobel found that Diamond’s unpaid service on the advisory body does not consume a “substantial” amount of his time and that inclusion of the words “Police Commissioner” on the ballot would be “misleading.”

Davis will be listed on the ballot as “Deputy District Attorney, County of Los Angeles.” Diamond will now be identified as “Attorney.”

TROY DAVIS

Candidate, 39, Says He’s Not Too Young To Be a Judge

June 4 will mark 11 years since Los Angeles Deputy District Attorney Troy Davis was admitted to the State Bar of California. The following day, his name will be before voters at the polls as a candidate in the race for Los Angeles Superior Court Office No. 118.

Ten years of State Bar membership is the state constitutional requirement for a judgeship—but is Davis, after so short a time as a lawyer, ready to take charge of a courtroom?

“I feel like I have enough experience,” the candidate says, “because I’ve been in a courtroom every day.”

He was hired by the District Attorney’s Office as a deputy in 2008 (and was a law clerk in that office in 2005.)

Davis, 39, notes that of the 25 lawyers appointed by Gov. Jerry Brown on Feb. 26, 10 were below the age of 45.

“So I think that’s an indication that I am right there in the same age group of the people that the governor feels are ready to be judges,” he remarks.

Davis says he has handled 57 jury trials, including cases involving the most serious of felonies.

He expresses the view that he has “a lot to offer” as a judge, claiming that he has “a great, calm judicial demeanor” and “can be calm throughout stressful situations,” adding:

“What I also pride myself on is really carefully analyzing any case or any issue, from as many angles as possible, and getting as many relevant opinions as possible before coming to a conclusion.”

He says that he does, in a courtroom, “treat everyone with respect” and vows that he would continue to do so as a judge.

Office Performance Evaluations

Davis’s last three annual performance evaluations show that he was assigned to “Complex Litigation” and was part of the Victim Impact Program (“VIP”) since November, 2014, first in Norwalk, then Long Beach. His overall evaluation in the two most recent reports was “Exceeded Expectations (Very Good)” and for the most recent one was “Met Expectations (Good).”

DAVIS

The report for the period from June 4, 2014 to June 3, 2015, prepared by his supervisor in Norwalk, Paul L. Minnetian, says:

“Upon joining Norwalk VIP, Mr. Davis assumed a high caseload of both new and pending cases. His prior experience in VIP has allowed him to adapt quickly. Mr. Davis accepts assignments without complaint and he always maintains a positive attitude. Mr. Davis can always be counted upon to assist others. He is a team player.”

His performance evaluation for the period of June 4, 2015 to June 3, 2016 came after spending seven-and-a-half months in Long Beach. In the evaluation report, his supervisor, Janis Johnson, notes Minnetian’s earlier observation that Davis is a “team player,” and comments that he is that “and more,” explaining:

“Mr. Davis is more because he not only volunteered to help his fellow Long Beach DDAs, he also took the initiative to constantly scan where help was needed and helped without being asked….

“Each time Mr. Davis came to the rescue of his fellow Long Beach DDAs, he did so with humility, compassion, professionalism, and a smile. He truly embodies grace under fire. He is a pleasure to have as an employee.”

‘Highest Caseload’

Johnson’s report also says:

“During his time at Long Beach VIP, Mr. Davis handled the highest caseload. His specials included attempted murder, murder, media cases, child homicide, multiple victim rapes, multiple victim child molestations, human trafficking of minors, multiple defendant cases, and conspiracy to commit murder. Mr. Davis was thorough in case preparation and used his vast VIP experience to effectively prioritize his work. Despite his high caseload, Mr. Davis never hesitated to assume extra duties….

“Mr. Davis’ extreme dedication to his job in general and VIP in particular is commendable. He is a great asset to Long Beach VIP.”

In her report for June 4, 2016 to June 3 of last year, Johnson repeats previous praise and adds:

“Over this evaluation period, Mr. Davis was well liked by judges, law enforcement, defense attorneys, and coworkers. Judges, law enforcement, and defense attorneys appreciated Mr. Davis’ professionalism and ability to mediate.”

Garners Endorsements

In his race for election to the bench, Davis is endorsed by 36 Los Angeles Superior Court judges and by former Los Angeles County District Attorney Steve Cooley.

Colleagues tend to praise the candidate.

A veteran in the office terms Davis “an excellent young man” who would make a “fair and good bench officer.”

He is seen as a “rising star” in the office.

Davis ‘Runs’

Davis says that “running is fun.” But he’s not talking about running for office. He is an avid marathon runner.

While the time required to run for a judgeship is 10 years’ membership in the State Bar, there is quite a different time requirement to run in the Boston Marathon. A person of Davis’s age and gender must have finished a 26.2-mile run in a previous marathon in 3 hrs., 10 mins.—and even that might not be good enough, depending on times achieved by other applicants.

Davis qualified to run in this year’s event, to be held April 17.

He has also been on a “Baker to Vegas”—that is, Baker, Calif., in San Bernardino County, to Las Vegas—law enforcement relay team for the past 10 years. The deputy left a St. Patrick’s Day dinner early this year to get to Las Vegas by 2 a.m. on March 18 for a final leg of the run.

The “Footprinters” is a pro-law enforcement organization that meets monthly at Taix, on Sunset Boulevard. Davis is this year’s president. He is also vice president of the Southeast District Bar Association, and is involved in other bar activities.

Davis, who earned his law degree from Loyola, is married and the couple has two children. His wife is a “physician assistant,” a medical professional who is able to prescribe medications and handle many of the tasks performed by doctors, but works under a doctor’s supervision.

DAVID D. DIAMOND

Lawyer Evinces Confusion Over Nature of What He Filed in Appeals Court

“I do have some goodies,” criminal defense attorney David D. Diamond proclaims as an interview—in connection with this profile as well as a potential endorsement—gets underway at the MetNews office. He hands out his resume, as well as what he terms “a writing sample from an appellate brief.”

Curiously, there are black blotches on it. He explains:

“I blocked out the defendant’s name.”

But why, given that it’s a public document, would he find a need to do so? Diamond says of the defendant:

“He’s my client and I have an attorney-client privilege not to publish anything without his consent. Unfortunately, he passed away about a year ago so I was unable to ask his consent….”

Pressed as to how the attorney-client privilege pertains, he says, after a discourse:

“If I said ‘privilege’…I meant to say attorney-client ‘relationship.’ ”

He volunteers, with respect to the case to which his “appellate brief” related:

“This was Second District, so it was out of Pasadena.”

He appears, at first blush, to be confusing California’s Second District Court of Appeal with the Ninth U.S. Circuit Court of Appeals, which has a courthouse in Pasadena. But Diamond later clarifies that the trial court decision was made in the Los Angeles Superior Court’s Pasadena courthouse, and was appealed to the state “District Court of Appeals.”

What panel heard the appeal? He says:

“Epstein, Bigelow—Flier, maybe.”

Diamond notes:

“I argued the case about six years ago. I believe, at the time, that was the panel.”

Norman Epstein is, and was in 2010—when, as it turns out, the matter came before the Court of Appeal—presiding justice of Div. Four. Then, as now, Tricia Bigelow was presiding justice of Div. Eight and Madeleine Flier was an associate justice in that division.

Conceivably, Epstein could have been serving in Div. Eight on assignment.

But, asked “Who’s Epstein?” Diamond answers:

“He was the presiding justice of that division.”

If Epstein had been a visitor in Div. Eight, he would not have been the presiding justice.

Queried as to what is Epstein’s first name is, Diamond says:

“Mr. Presiding Justice.”

Who’s Bigelow?

“The assistant associate justice,” he replies.

Her first name? Diamond doesn’t know, but protests:

“I’m not on a first-name basis with justices of the Court of Appeals.”

No Appeal Involved

In actuality, there was no appeal. The document Diamond terms “an appellate brief” is a writ petition.

Although Diamond blotted out the name of his client, as well as that of the co-defendant, he apparently did a case-sensitive name search on his PC, or undertook a cursory reading of a hard copy, because the client’s surname, “TSUEDA,” appears in all capital letters in the headings of the redacted version he provided, enabling the case of Tsueda v. Superior Court to be identified.

Epstein was not involved in deciding the matter. Nor was Bigelow. Nor Flier.

Records show the petition was filed May 7, 2010. Diamond did not “argue” the case, in the sense of presenting oral argument; rather, the petition was summarily denied by Div. Four on May 21, 2010. The initials on the denial are those of Justices Nora Manella and Thomas Willhite, who remain on the court, and then-Justice Steven C. Suzukawa, who retired in 2014.

In the petition, Diamond proclaims facts which, though unsupported other than by a statement of a co-defendant, he contends should preclude his client from having to stand trial on charges stemming from a fatal hit-and-run accident. (According to Diamond’s recitation, his client, who owned the automobile causing the mishap, was not in control of it, as required for criminal liability, because he was merely a passenger in it, in a drunken slumber.)

Handles Occasional Appeal

“I’m not an appellate lawyer,” Diamond says, “but I do appeal cases when the matter calls for it.”

It appears from records that he has argued eight appeals, winning one; the court found sufficient evidence to justify a restraining order obtained by his client, the respondent, against a neighbor. He gained partial victory for a client, the appellant, in another case, achieving a modification, but not a reversal, of a restraining order.

DIAMOND

Records show that he filed his first writ petition in 2008 and his most recent in 2016, with four in between. All were summarily denied.

A 2013 denial by Div. Five, the only one accompanied by a comment, says that the defendant in a drug case “fails to provide an adequate record for appellate review” and otherwise fails to show that there was a lack of probable cause to bind him over for trial or error in denying a suppression motion.

In one case, in 2014, Diamond sought transfer of a cause from the Appellate Division, which the Court of Appeal denied.

The lawyer is presently representing the appellant in a dissolution of marriage case, with his opening brief due at the end of the month.

Avoiding Arrogance

Discussing the sort of judge he would want not to resemble, Diamond says he would want to avoid “the innate rudeness without provocation, the disrespect without justification” exhibited by some.

He continues:

“It says on all of our bar cards, as attorneys, ‘the right to public access to the courthouses.’ I don’t ever want to be someone who is denying someone the right to be heard, the right to present their side in a courtroom because ultimately, when everything else is peeled off, that’s what the court system is: the right to be heard.”

But is “the right to public access to the courthouses” mentioned on State Bar cards? Diamond fishes for his, finds it, and reads:

“Protection of the public.”

It says:

“PROTECTION OF THE PUBLIC IS THE HIGHEST PRIORITY OF THE STATE BAR OF CALIFORNIA.”

But what does that have to do with “access”? Diamond responds:

“That’s the way I interpret it. Protection of the public.”

He elaborates:

“Well, isn’t that what you’re protecting? The right to access to the courthouse, the right to be heard?”

Membership in Organizations

Diamond tells of bar groups with which he is affiliated:

The Los Angeles County Bar Association—and its unit, the Indigent Criminal Defense Appointments program—Santa Clarita Valley Bar Association, the Beverly Hills Bar Association, the Women Lawyers Association of Los Angeles, and the San Fernando Valley Bar Association.

With respect to groups other than bar associations in which he has membership, he points to being on the Board of Directors of the Burbank Little League (he’s vice president) and being co-director of the California Attorneys for Criminal Justice moot court program.

He does not allude in the Feb. 23 interview to being chair of the Burbank Police Commission.

On his law office website, under the heading, “ORGANIZATIONAL MEMBERSHIPS AND ACTIVITIES,” he lists bar association memberships and such activities as “Legal Education Conference Center- Former Bar Grader” and “Guest Speaker on Criminal Law-National Youth Leadership Forum” but no mention of the police commission.

However, on March 8, in filing his nomination documents, he claimed the post to be one of his “principal” professions, occupations or vocations, putting down as his ballot designation, “Police Commissioner/Attorney.”

Rival candidate Troy Davis sought to convince the Office of Registrar-Recorder Dean Logan that Diamond’s service on that commission does not meet the definition of “principal”—which entails, under the Code of Regulations, “‘substantial involvement of time and effort,”

Davis produced a declaration under penalty of perjury from Burbank Police Chief Scott LaChasse who set forth the commission is an “advisory board” that “meets once a month, except for December, for approximately an hour or two; and on rare occasions, Commissioners may review materials in preparation for the meetings.”

The declaration adds:

“I applaud the unpaid volunteers who serve on our Police Commission but cannot verify that service on the commission is a time consuming activity; it is not an occupation or job.”

Judge Grants Writ

The Registrar-Recorder’s Office was unpersuaded, but Los Angeles Superior Court Judge Mary Strobel was. She granted Davis’s writ petition ordering Logan to strike the words, “Police Commissioner.”

She said, in her March 29 ruling, that Diamond’s “service on the Commission is not a profession, vocation, or occupation and does not involve a substantial involvement of time and effort” and that “his inclusion of ‘Police Commissioner’… in the ballot designation is misleading.”

Diamond lamented in a statement:

“I had wished my young opponent desired that this election be decided on its merits and based on qualifications….”

Diamond is 45, six years older than Davis.