Metropolitan News-Enterprise


Wednesday, January 6, 2022


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Ninth Circuit:

Judge’s Mid-Testimony Remark on Credibility Permissible

Panel Rejects Bid for Reversal Based on Judge Telling Jurors, While an Expert Was Testifying, That in Gauging Credibility, It May “Consider the Manner in Which the Witness Is Testifying”


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday affirmed a judgment pursuant to a jury’s determination that a Highway Patrol officer acted justifiably in the shooting death of an unarmed man, rejecting the contention by the plaintiff that a District Court judge erred prejudicially in telling the jury, in the midst of testimony by her expert witness, that in determining credibility, it may “consider the manner in which the witness is testifying.”

That instruction, a three-judge panel said in a memorandum opinion, “was not plainly erroneous.” The review was for “plain error” because no objection was made to the remark at the time it was uttered by Judge James V. Selna (now a senior judge) of the Central District of California.

Selna interjected the comment after the witness, forensic specialist Jeffrey Boxer, attempted to show jurors, via the courtroom projector, an excerpt from a book that had not been admitted into evidence, and contrary to an instruction to him from the plaintiff’s lawyer, Dale K. Galipo, not to do so.

 Plaintiff Leticia Barron, mother of the decedent, Mauricio Barron, contended on appeal that Selna in effect told jurors to look askance on Boxer’s testimony. Boxer was attempting to dispute the account presented by Daniel Agee, the California Highway Patrol officer who fatally shot Mauricio Barron, as to the circumstances.

The decedent was shot on Oct. 10, 2016, while on foot on a portion of the I-5 freeway in Irvine. He had been acting erratically, waving his arms.

According to Agee, he pulled the trigger as the man was charging at him; Boxer contended that forensic evidence showed that Mauricio Barron’s side was toward the officer.

Rival Contentions

At oral argument on Dec. 10, Leticia Barron’s pro bono attorney Jonathan Goldstein, a litigation associate in the Los Angeles office of Kirkland & Ellis LLP, maintained that “this was a very close case” that boiled down to jurors either accepting Agee’s version of what happened Boxer’s, and that Selna affected the outcome by indicating to the jury “that the trial judge did not find Mr. Boxer’s testimony particularly credible.”

Deputy Attorney General Mark Ashley Brown argued, to the contrary, that “this was not a close case” and Boxer was not a key witness, contending: “Mr. Boxer told the officer he had a gun and intended to shoot him, approached rapidly on Officer Agee, failed to comply with his command to stop, and assumed a shooting stance.”

Selna’s remark was, in full: “In determining how much credibility to give a witness’s testimony, you’re entitled to consider the manner in which the witness testified.”

Permissible Comment

In yesterday’s opinion, the panel—comprised of Judges William A. Fletcher, John B. Owens, and Johnnie B. Rawlinson—declared that Selna’s remarks were within the limits of permissible comment on the evidence by a District Court judge, saying:

“The trial judge did not fail to make it clear that the matter of Boxer’s credibility was submitted to the jury’s determination, because that clarification is the very substance of the comment at issue. Nor did he add to the evidence or distort it. because the insinuation that Boxer’s manner of testifying might reflect poorly on his credibility was a fair and accurate account of his performance on the witness stand.”

Aside from attempting to present to jurors the book excerpt, the opinion notes, Boxer “repeatedly failed to answer or gave evasive responses to defense counsel’s questions on cross-examination, forcing the trial judge to admonish him on two occasions” adding:

“In any event, the comment likely did not affect the outcome of the district court proceedings, and hence was not prejudicial under plain error review.”

The opinion points to Boxer’s minimal qualifications as an expert, remarking:

“It is likely that the jury would not have been persuaded by his testimony, even without the trial judge’s insinuations about his manner while testifying.”

The plaintiff also contended that Brown improperly vouched for Agee in closing argument. He told jurors:

“I think Officer Agee’s testimony was consistent. He remembers this. This is seared in his mind. This was a traumatic event for Officer Agee. He will never forget this. But he remembers it because it’s seared in his memory.”

The Ninth Circuit panel said:

“These statements do not constitute improper vouching, and in any event, they are not plainly erroneous.”

It went on to say:

“In any event, the comments were not prejudicial. As mentioned earlier, there were other compelling reasons for the jury to find Boxer’s testimony not credible vis-a-vis Officer Agee’s and thus find the defendants not liable. Moreover, the purportedly improper vouching was limited to a single comment in defense counsel’s closing argument….And the jury had the opportunity to judge for itself the quality of Officer Agee’s memory through extensive direct-, cross-, re-direct-, and re-cross-examination over the course of two days. Consequently, the effect of defense counsel’s statement on the jury was likely minimal.”

The case is Barron v. State of California, 19-55127.

The Orange County District Attorney’s Office on Sept. 20, 2017 exonerated Agee of wrongdoing. It concluded that “there is no evidence of criminal culpability on the part of Officer Agee, and there is substantial evidence that his actions were reasonable and justified under the circumstances when he shot and killed Barron on Oct. 10, 2016.”

The New York Times has reported that “Leticia Barron travels around the country as an activist, protesting with other families that have lost loved ones to police violence.”


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