Thursday, January 23, 2020
Page 8
EDITORIAL
Los Angeles Superior Court Office No. 145
A film studio is a place where illusions are created. Through artistry, it is made to appear that there is a thunderstorm on a scorching hot day in July. Floods, fires, explosions are fabricated. A six-foot tall man can be made to appear dwarfed by a rat or to exceed the height of a multi-story building.
Joining in the deception are the actors. A young man, in robust health, aided by makeup, plays an ailing 90-year-old; a woman who has never sipped an alcoholic beverage portrays a drunk; a Protestant born in Dublin assumes the role of a rabbi in Spain.
The trickery is of an innocent nature. Everyone knows that the character who is stabbed and falls dead in a scene is actually unscathed.
But when illusions are created outside the realm of show business, when it is intended that the audience—whether the general public or a “mark”—will believe that what is portrayed is authentic, though it isn’t, the purpose is odious, the perpetrator is a malefactor.
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RIMINAL DEFENSE ATTORNEY TROY SLATEN was an actor for about 20 years, from the age of five. He was a regular on “Cagney and Lacey” and “Parker Lewis Can’t Lose.” As an actor, he created illusions, as all actors do, feigning emotions, faking proclivities, behaving in a manner unlike his own.
In recent years, he has appeared on national news broadcasts as an interviewee/commentator. Slaten is now a candidate for the Los Angeles Superior Court.
What he might not grasp is that, in these new roles, he is not on a filming set, the creation of illusions is not part of the game, and the false impressions he generates are not a matter of clever showmanship, but hoaxes.
Or does Slaten realize that?
Whatever his level of awareness, the erstwhile cute kid on sitcoms is now a lawyer who has caused, time after time, a misrepresentation of his legal background on news programs, and has adopted a ballot designation the legitimacy of which he makes no effort to substantiate.
Too, he is now assailing his opponent through an overdramatizing of his errors in two cases. Slaten appears to be embracing the allegation rashly made by another that his rival, Los Angeles Deputy District Attorney Adan Montalban, is guilty of “corrupt” conduct.
Slaten is not, as we see it, a suitable candidate for the Los Angeles Superior Court. While Montalban is less than an ideal candidate, himself—indeed, we do question whether he is fit for a judgeship—he is, in our view, the better (or less bad) alternative.
Slaten Falsifying His Background
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HEN SLATEN APPEARS ON CNN or other news networks, he is routinely identified by lettering on the screen, as well as by the anchor in the introduction, as a “former prosecutor.” He explains the prosecution’s position in newsworthy cases from his supposed vantage point of having, himself, prosecuted cases—and inferentially, cases of like magnitude.
But he is not a former prosecutor.
He was, while in law school, a volunteer helper to the Los Angeles County District Attorney’s Office. His role was that of a certified legal intern who performed prosecutorial chores under close supervision of a real-life deputy district attorney.
As a former higher-up in the District Attorney’s Office puts it: “A medical student who takes patients’ blood pressures and medical histories as part of clinical training is not a physician.”
A judge comments:
“I find this type of behavior just comical. How does he think he can get away with this?”
The judge adds:
“I find Mr. Slaten’s statements about his position as a ‘prosecutor’ dishonest and violating every fiber of what it means to be a judge.”
Other comments of like nature are quoted in a Dec. 18 candidate profile on Slaten.
Slaten has created an illusion. He either directly causes, or acquiesces in, news networks misstating his credentials. His CVs, posted on social media sites, have falsely portrayed him.
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LATEN’S MENTALITY AND HIS GALL bring to mind “fabulist” Steven Glass who, in articles for “The New Republic” and other publications, simply made up incidents and quotes. As a result of his perfidy, he was in 2014 denied admission to the State Bar of California by the Supreme Court, which said, in a “By the Court” opinion:
“Glass’s journalistic dishonesty was not a single lapse of judgment, which we have sometimes excused, but involved significant deceit sustained unremittingly for a period of years.”
While Slaten’s deceit is not nearly as wide-ranging as Glass’s, it does involve “significant deceit sustained unremittingly for a period of years” and should not, in our view, be excused by voters.
The high court quoted, with approval, this observation in a dissent to the State Bar Review Department’s opinion proclaiming Glass fit for membership:
“[I]f Glass were to fabricate evidence in legal matters as readily and effectively as he falsified material for magazine articles, the harm to the public and profession would be immeasurable.”
Likewise, if Slaten is willing to create the illusion that he is a “former prosecutor,” what mischief would he engage in on the bench? Judges who falsify holdings in appellate cases and twist the facts in order to reach a result are rare, but such a species of jurist does exist, and is—to the parties and the cause of justice—dangerous.
Ballot Designation
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OR AN ACTIVITY IN WHICH A CANDIDATE engages to qualify for mention in a ballot designation, it must entail an appreciable expenditure of time. Slaten chose the designation, “Attorney/Legal Commentator.” He is a practicing attorney, and the validity of the designation as “Attorney” is unassailable. However, while he is, on occasion, a legal commentator, his entitlement to allude to that sideline in his ballot designation is doubtful.
In 2018, criminal defense attorney David D. Diamond chose the designation, “Attorney/Police Commissioner.” A Los Angeles Superior Court judge disallowed it, holding that the two or three hours a month Diamond spent at Burbank Police Commission meetings did not suffice, in itself, and that even if time he devoted to reading reports and preparing for meetings were added, the total effort did not justify his use of the words “Police Commissioner.”
If Slaten appears as an interviewee/commentator four minutes here, four minutes there, perhaps for a half hour somewhere else, he would have to be appearing on the air nearly daily—and he makes no pretense that he does—for the total time to rival that which Diamond expended on commission activities.
Slaten tries to allay concerns about the legitimacy of his ballot designation by boasting of having appeared on the air “hundreds” of times in the past five years. That’s a red herring.
Elections Code §13107(c) applies to the designation of “an active member of the State Bar” who “practices law as one of his or her principal professions.” That person may use the word “Attorney “or “Lawyer,” under the provision, along with “with one other current principal profession, vocation, or occupation of the candidate, or the principal profession, vocation, or occupation of the candidate during the calendar year immediately preceding the filing of nomination documents.” Emphasis added.
What matters is not the number of Slaten’s appearances on the air as a commentator on legal matters over the past half decade, but the volume and duration of those “gigs” at the time he chose the designation last year or in 2018.
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AS HE APPEARED AN AVERAGE of once a week? “I couldn’t say,” Slaten responded in an interview with this newspaper. He then attempted to veer attention from what was in issue to what was plainly beside the point, declaring:
“I’ve appeared on, regularly, CNN, HLN—”
Reminded that he was not being asked where he has appeared, but how often, he responded:
“I don’t have that statistic at my fingertips.”
He acknowledged:
“[D]uring the race, I’ve turned down several opportunities because of court appearances or things involving campaign appearances,” but insisted: “I am still active regarding my legal commentary.”
But has he been active enough during the relevant time period for his role as a “legal commentator” to meet the statutory criterion of being a “principal” pursuit? Slaten would not provide information upon which a conclusion could be drawn.
Montalban has said he didn’t bother challenging Slaten’s use of the words “Legal Commentator” because he doesn’t think the description is of any particular benefit to Slaten. He’s probably right.
Whether the words will enhance Slaten’s chances or not, Slaten has knowingly used words in a ballot designation the legitimacy of which he won’t, and therefore presumably cannot, defend.
Allegation of Corruption
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HE WORD “CORRUPT,” USED as an adjective, means, according to the Miriam Webster 2020 online dictionary, “morally degenerate and perverted” or “characterized by improper conduct (such as bribery or the selling of favors).”
The Collins online Unabridged English Dictionary says: “Someone who is corrupt behaves in a way that is morally wrong, especially by doing dishonest or illegal things in return for money or power.”
An accusation that an attorney is “corrupt” connotes an unfitness for law practice. Business & Professions Code §6106 provides:
“The commission of any act involving…corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.”
A cautious, fair-minded, and responsible person would not personally allege that a lawyer is “corrupt”—or impliedly adopt such an accusation by another—without a strong factual basis for doing so.
Yet, Slaten, who, as an attorney, should know better, has aligned himself with a critic of Montalban who terms him “corrupt.”
Slaten has disseminated by email a Jan. 16 article appearing on a blog. It bears the heading, “Corrupt LA Deputy DA Seeks Judgeship.” The author is listed as Edward Blum, a criminal defense lawyer. However, the content is quite close—with some of the wording being identical—to that contained in an email Slaten sent the METNEWS on Jan. 8 urging coverage of Montalban’s transgressions. The email, counseling the need for quick action in providing a report, says:
“It is my understanding that articles relating to these things may soon be published by others. I’d prefer Met News to get the scoop.”
Montalban has made mistakes. Two are pinpointed by Slaten and Blum. One of the errors was sizable, and entails a departure from ethical standards. Neither slip-up, however, amounts to corruption.
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ETER GATLIN HAD BEEN CONVICTED on three counts of second-degree robbery. Montalban was the prosecutor.
On Jan. 29, 2018, Div. Two of the Court of Appeal for this district, in a 2-1 unpublished opinion, reversed the conviction on each count. There was insubstantial evidence as to two of the counts, Acting Presiding Justice Judith Ashmann-Gerst said, writing for the majority, and the conviction on a third count, she declared, was infected by prosecutorial misconduct.
She wrote:
“We conclude that the prosecutor committed misconduct by misstating the law regarding what the jury was required to decide (reasonableness of Gatlin’s conduct rather than whether the prosecutor proved the elements of the charged crimes), and by denigrating defense counsel and insinuating he was being deceptive. Given that the prosecutor’s improper statements were the last thing the jury heard before deliberating, there is a reasonable likelihood the jury applied the prosecutor’s statements in an objectionable manner. Because the prosecutor’s case was built on debatable inferences of Gatlin’s knowledge and intent, the misconduct is the likely explanation for the conviction for the March 21, 2015, robbery. We conclude that in the absence of this misconduct, it is reasonably probable the result would have been more favorable to Gatlin.”
Ashmann-Gerst also determined that there was ineffective representation, saying:
“It is reasonably probable that the result would have been different in the absence of defense counsel’s deficiency because the prosecutor’s misconduct was egregious and his case was weak.”
Justice Victoria Chavez disagreed as to insubstantiality of the evidence with respect to the first two counts and said:
“…I would reverse and remand all three robbery counts, subject to retrial, on the basis of prosecutorial error only.”
Whether there was “misconduct” that was “egregious,” as Ashmann-Gerst labels it, or merely “prosecutorial error,” as Chavez terms it, there was fault on the part of Montalban. That does not warrant a conclusion that he is “corrupt.”
It is noteworthy that neither the State Bar (there is a duty to self-report a reversal based on prosecutorial misconduct) nor his office saw a basis for discipline.
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ORE SIGNIFICANT IS SHODDY CONDUCT on Montalban’s part in connection with a transcript. A private company (perhaps at the behest of the Los Angeles Police Department) prepared a transcript of a recorded four-hour jailhouse conversation between Joseph Mancilla and Carlos Rojas, two of nine gang members charged in a murder case. That transcript was provided by the District Attorney’s Office to the defendants’ lawyers. So was a copy of the tape.
Months later, during trial, Montalban listened to the tape carefully and found that he was able to decipher words in a short passage which the transcription company had indicated were unintelligible. His office prepared a revised transcript, which was provided to the jury. The words that were added were inculpatory.
The problem is that the prosecution did not alert the defense that changes had been made. When the lawyer for Mancilla protested on March 16, 2015, outside the presence of the jury, as to words having been added to the transcript, Montalban’s response was that the defense “had the tape.”
His stance was:
“[T]he obligation is to turn over all discovery. The people don’t have to do the work for the defense. If the defense misses something in the discovery, that’s not our obligation.”
Los Angeles Superior Court Judge Robert Perry told him:
“You know, this is the way they play in the civil arena. They give a million documents to the other side, and hidden in that million documents is the smoking gun that they hope the defense or the plaintiff doesn’t find. You know, I think you have a responsibility when you make a change that is so significant to a transcript that you have provided to give notice to…the defense.”
Perry opined that Montalban “was acting in good faith” and was “sure” that the failure to give notice to the defense was “an oversight.”
Nonetheless—unable to detect all of the words Montalban had discerned—he granted a mistrial as to Mancilla and Rojas based on late discovery.
Montalban points out in response to Slaten’s assault that Mancilla, Rojas and Gatlin were all convicted at their new trials. That’s irrelevant to the propriety of his conduct at their first trials.
That Los Angeles Superior Court Judge Michael Carter, who presided over the second trial of Mancilla and Rojas, was able, using a headset, to make out most of the words the prosecution had added to the transcript is also unrelated to Montalban’s failure at the first trial to alert the defense to the alteration.
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T IS TROUBLING THAT MONTALBAN would contend that it is acceptable to provide a transcript to jurors containing words not appearing in the copy handed to the defense months earlier—those added words being highly detrimental to at least two defendants—without the defense being alerted to the changes. For him to shrug it off by saying that it’s OK because the defense had the tape upon which the transcript was based, and thus could have discerned those words for itself, is stomach-turning argumentation.
Perry’s assessment that Montalban acted in good faith is difficult to grasp. Montalban did say at one point in the hearing that with all that was going on in the trial, “we might have overlooked” giving notice of the change in the wording of the transcript. But in the same breath, Montalban insisted that it didn’t really matter because the defense had the tape. At no point did he proclaim that there had ever been an actual intent to provide notice.
This doesn’t mean that the omission, though blameworthy, or Montalban’s pathetic rationalization to Perry, evinced “corruption.” But it does cast doubt on Montalban’s sense of fair play.
Contrasting the Candidates
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LATEN IS ARTICULATE AND SUCCINCT; he is knowledgeable in the area of criminal law. Aside from that, he is outgoing, personable, and engaging. Also, he is glib, sly, slippery, and untrustworthy.
By contrast, Montalban is not highly articulate and is soft-spoken. On the other hand, he, too, knows criminal law, and has vastly superior trial court experience to Slaten’s. His internal office evaluations are favorable.
Notwithstanding Slaten’s strengths, we believe he is ill-suited for membership on the Los Angeles Superior Court based on his lack of commitment to the truth. With his show business background, he might be ideally cast as the judge on a daytime trial-simulation TV program.
Despite mistakes he has made, mistakes of a substantial nature, we view Montalban as sincere, able, and possessing the potential for meaningful service on the bench.
With reservations, we endorse him.
Copyright 2020, Metropolitan News Company