Wednesday, June 20, 2001
Page 9
PERSPECTIVES (Column)
Judge James Sutton: After 17 Years, He Doesn’t Have the Hang of It
By ROGER M. GRACE
Today marks 17 years since James M. Sutton Jr. took office as a judge of the Los Angeles Superior Court. A number of attorneys think he doesn’t belongs there, and have complained about him to the Commission on Judicial Performance.
I reported the substance of their complaints in previous columns. There’s a consistency to those complaints. The pattern that’s portrayed is that of Sutton stacking the deck in favor of the defendant in tort cases through such means as antagonistic questioning of the plaintiff’s witnesses and sending signals to jurors that the plaintiff’s case lacks merit.
June 6 was the 40th anniversary of Sutton’s admission to the State Bar of California. During his years as a lawyer, he primarily handled defense work. As some view it, Sutton, 69, still acts as a member of the defense team, doing so in cases in his courtroom.
One case in which he seemed to play the role of advocate was Steele v. Jensen Instrument Company. That fact is not reflected, however, in the Court of Appeal’s 1997 opinion in the case. The portion that is published—at 59 Cal.App.4th 326—makes no mention of the judicial misconduct issue. In an unpublished portion, the court declined to consider the allegations of misconduct because no objection was made at trial, creating a waiver of the issue.
However, the failure to object at trial does not preclude consideration of the misconduct by the Commission on Judicial Performance, which has been conducting a probe of Sutton’s behavior for the past four years. There are signs that its investigation is at last nearing a conclusion.
In Steele, Loretta Steele sued her ex-employer, Jensen Instrument Company, its owner, Frank Molinari, and Tim Campbell, the office manager. The action was for wrongful discharge and violation of her rights under the California Fair Employment and Housing Act.
Steele had become pregnant, and arranged with her company for six weeks’ maternity leave. When she became aware that she would need a caesarian section, she conferred with her employer and it was agreed the time off would be upped to eight weeks, with a return date of May 16, 1994. However, after she gave birth on March 25, she encountered complications, including bleeding in the area of the incision. On May 6, after visiting her doctor, she advised her employer she would need to stay home a bit longer, perhaps another three weeks. On May 10, Molinari and Campbell made a surprise visit to Steele’s home and advised her that it was important that she return to work. As they exited, Steele handed her a letter implying that she would either be back at work on May 16 or would be fired. The visit purportedly upset her. Her doctor would not release her to go back to work by the 16th. By letter of May 19, Molinari announced her position had been filled. (In truth, as testimony showed, it was not filled until several days later.) On June 1, Steele was given the green light by her doctor to return to work, but she no longer had a job. She was unemployed until the following year.
Under Government Code §12845(a)(2), a woman who is “disabled on account of pregnancy, childbirth or related medical conditions” is entitled to take up to four months off without jeopardizing her job.
Steele’s case was tried before a jury in Sutton’s courtroom (Department “R” in Norwalk). The jury awarded Steele $21,078. However, because that amount was less than the statutory offer of compromise that had been made to her of $40,000, Sutton denied the plaintiff costs and ordered Steele to pay the defendants’ costs, which amounted to $29,772.50.
At a hearing on Steele’s motion to tax costs, Sutton charged that the plaintiff’s lawyer “came in here to roll the dice on a case that was worthless to start with” and labeled the case “bum,” “crappy,” “trivial” and “trifling.”
Steele appealed, arguing that the low verdict was the product of misconduct by Sutton.
While it well might be that a verdict just shy of $30,000 fully compensated Steele for the harm caused by her employer’s violation of her employment rights, and that she was foolhardy in spurning an offer of $40,000, this cannot justify any interference by Sutton with her fair-trial rights.
The appellant’s opening brief was prepared by Petaluma attorneys Victor C. Thuesen and Kerstin Molinder. It contains 20 pages of examples of Sutton taking over the questioning of witnesses, hammering at plaintiffs’ witnesses to make them look like fools, and throwing questions to defense witnesses to bring out points helpful to the defendants. For instance:
•Steele was being questioned on direct examination concerning the visit to her home by Molinari and Campbell. The judge interjected ridicule. Here’s what was said:
Q. [By Respondents’ Counsel] And can you describe how your emotional distress affected the plans to have another child?
A. Going through emotionally what I went through with the two gentlemen that you mentioned, that you mentioned in the company, I did not want to go through that again. Absolutely not.
The Court: You mean if you had another child they would come to your house and somehow terrorize you?
The Witness: No, sir. I mean—
The Court: That’s exactly what you said.
•By contrast, when Molinari was on the stand, Sutton elicited testimony to refute inferences that might be drawn from Steele’s account of the visit:
The Court: Did she receive you cordially that evening?
The Witness: Believe me, I would not have gone in her home if she didn’t want us there. I mean she, she opened the door for us.
The Court: Did she display any animosity or any apprehension about you coming into her home?
The Witness: No, nothing.
The Court: Did she express any nervousness at your being there?
The Witness: Back two years now and I have to, I don’t believe she was nervous. I think she was probably surprised to see us. But I don’t recall her being anything but, you know, normal.
•Steele testified under cross-examination that during her medical examination on May 16, 1994, her doctor told her that the demand that she return to work had been unlawful. The witness said she did not assert to Molinari or Campbell that her rights were being breached because she assumed they knew the law. Sutton took over the cross examination:
Q. [by the court] . . . if you thought you had rights to protect, why didn’t you speak up and say don’t violate my rights? Why is it all their duty and none of yours?
A. I didn’t feel that I needed to, sir.
Q. You mean you could remain silent but they couldn’t?
...
Q. You could remain silent but they couldn’t; is that your position?
A. I could remain silent?
Q. Yeah, you can[ ] protest the fact that they were discharging you, but it was up to them to...tell you what your rights were. Is that what you are saying?
•Dr. Howard Blackstone, a psychiatrist, testified for the plaintiff as an expert witness. He rendered the opinion that a report by the defendants’ independent medical examiner, Dr. Carol Lieberman, was shoddy. One basis for his conclusion is that she had failed to consult the primary reference source, the Diagnostic and Statistical Manual IV (“DSM”). Sutton proceeded to argue with the witness:
A. ...It doesn’t have to be the most brilliant report. But it has to meet a certain minimal competence. My involvement in malpractice work is that somebody who does not delineate what DSM-IV rule-in and rule-out is below the standard of care, yes.
The Court: What if the conclusion—the earnest conclusion of the psychiatrist is that this is all a sham and an artifice and that there is no mental aberration present? Why must you refer then to a work that defines mental aberration if the conclusion is there is none?
The Witness: You have to give the evidence. I think I indicated earlier that within my field there is—
The Court: This is nonsense because if you are accused of a crime and have done nothing, then invoking all the criminal statutes in the world when you’ve done nothing doesn’t prove anything. So to say that someone suffers from a mental aberration when the conclusion is that this is not so, it doesn’t do any good to parade or catalog the mental aberrations that aren’t present if that’s the conclusion of the examiner.
The Witness: But in the field of—you’re talking about criminal—
The Court: I’m talking about common sense.
The Witness: I’m talking about common sense as well. If you’re saying to me that somebody might have gone out and bought the DSM-IV or read the DSM-IV and, you know, conclusion—
The Court: I’m saying if the conclusion of the examiner is there is nothing in or outside the DSM-IV that is noteworthy, why must there be reference to the DSM-IV if the conclusion is that it’s not to be invoked, that it’s not necessary to do that?
Personally, I couldn’t follow all of that. What is clear, however, is that Dr. Sutton had a differing view from that of Dr. Blackstone—and the former, being the judge, is the one whose opinion the jury would be apt to accept. When a judge labels the utterances as “nonsense” and “common sense,” the judge in effect admonishes the jury to disregard the expert’s view.
•Dr. Blackstone first talked with Steele on the telephone, making a preliminary diagnosis, then met with her in person, finalizing the diagnosis. Sutton sought to ridicule the witness for forming an opinion before meeting with Steele:
Q. [By respondents’ counsel] And you testified that you had personally interviewed Mrs. Steele prior to having your deposition taken in this case for about one and a half hours, is that correct?
A. That’s correct.
Q. Isn’t it true that that interview was over the telephone and not in person?
A. Yes, it was.
The Court: The telephone? You had a telephone conversation with her?
The Witness: My initial interview with her was over the telephone, yes.
The Court: And that’s what you based your diagnosis on was a telephone call?
The Witness: No. I based my diagnosis on all the written records and my understanding of the diagnostic criteria.
Later:
The Court: On how many prior occasions before coming to Court have you formed a diagnosis based on a telephone interview?
The Witness: I do that all the time that there is a particular kind of consultation—there is a patient-oriented consultation that you sit down face-to-face with the individual. Then there’s what’s called a consultee-oriented consultation. I spent 10 years as medical director of the County of Marin, and often times a doctor or somebody else would come—
The court: Just a minute. My Question: You’re coming into court to give testimony that you have formed a diagnosis, you tell us, on the telephone. Suppose the person on the telephone has a bad facial tic that is psychologically induced and you can’t see that. How can you include that as part of your diagnosis? Or that someone has some sort of aberrant body twitch or behavior that you can’t see? Is this not, if it is psychologically induced, part of something you have to include in your diagnosis?
The Witness: Well, what I testified before is that I did interview Ms. Steele. I interviewed her face-to-face for an hour-and- a-half.
The Court: I’m talking about you formed your—you call it your provisional diagnosis based on a telephone conversation. Have you ever done that before and come to court and testified about a diagnosis you’ve made by telephone?
The Witness: No.
The Court: This is the first time?
The Witness: Yes.
The Court: Thank you. You may step down.
The problem with Sutton is that after 17 years on the bench, he still thinks he’s a defense lawyer.
What emerges from a review of the complaints to the CJP and appellants’ briefs is an impression that whatever Sutton’s prowess might be as a defense lawyer, he just isn’t much of a judge.
Tomorrow I’ll discuss a case in which he was reversed based on misconduct.
Copyright 2001, Metropolitan News Company