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CoCo Deputy PD Argues Stogner All the Way to the Top As California lawyers debated the impact of Stogner v. California, the U.S. Supreme Court decision that crippled prosecutors’ efforts to pursue decades-old sex abuse cases, the Contra Costa County public defender’s office staged a quiet celebration. After all, a deputy from the county’s alternate defender’s office, Roberto Najera, represented 75-year-old Marion Stogner throughout his legal odyssey, including argument before the high court. Stogner was accused of abusing his two daughters, but the statute of limitations had expired 20 years before he was prosecuted. The Supreme Court’s ruling will force judges across the state to toss out such cases. A powerhouse criminal defense firm would have had an opulent bash. The county attorneys’ fete was more understated, said Public Defender David Coleman III. Staff feasted on an inexpensive meal at a local Mexican restaurant and savored a bottle of $12 champagne, Coleman said. Other California defense attorneys had tried �� and failed �� to win on the issues that Najera argued in Stogner, Coleman said. “Our lawyer hit the home run,” Coleman said. “Everyone else had struck out.” Jahna Berry Both Sides Now The union representing 3,500 state lawyers recently found itself on both sides of a dispute that came before the Third District Court of Appeal. The unusual circumstance occurred in Association of California State Attorneys and Administrative Law Judges v. Department of Personnel Administration, 03 C.D.O.S. 5742. Appellate justices looked at three superior court cases involving contracts between the state and various employee groups. The contracts included provisions to use alternative dispute resolution to settle claims of unfair discipline. The only problem is that the California Constitution mandates that the State Personnel Board arbitrate those disputes. So the board and the union representing its administrative law judges sued. After mixed results in lower courts, the board and union claims were upheld last week in the Third District. The state lawyers union, known by its acronym CASE, found itself on both sides of the table because, besides administrative judges, it also represents deputies attorney general. Although CASE was a named plaintiff, some individual deputy AGs filed amicus curiae briefs on behalf of defendant Department of Personnel Administration opposing the claims made by their own union. Isn’t that a conflict? “Everybody just kind of looks the other way,” said current CASE President Scott Burns, who quickly added that he was just kidding. He said such occurrences are rare but possible because CASE represents such a diverse group of lawyers. — Jeff Chorney With All Due Respect, Please Zip It Los Angeles County Superior Court Judge Chesley McKay Jr. seemed to think he was back in the district attorney’s office last year when he suddenly took over the questioning of a criminal defendant. As a result, the conviction of Grail Perkins on several counts, including arson and making terrorist threats, was overturned last week on grounds of judicial misconduct. L.A.’s Second District Court of Appeal said Friday that McKay was “intemperate” and in four instances “prejudicially interfered” with Perkins’ defense “and conducted himself as though he sided with the people.” “Such misconduct,” Justice Daniel Curry wrote, “necessitates reversal of the judgment and remand for a new trial.” Justices Charles Vogel and J. Gary Hastings concurred. Perkins had been convicted for threatening his wife, Madiha Fields, and trying to burn down their Altadena house in 1999 after Fields obtained a temporary restraining order to keep Perkins away. Perkins had tried to defend himself at trial by arguing that he was in a Pasadena courthouse at the time of the fire. However, the 53-year-old McKay, a Vietnam veteran and a deputy DA in Los Angeles from 1984 to 1994, jumped into the fray, repeatedly badgering Perkins about his alibi and other disputed issues. At one point, McKay made it clear through questioning that Perkins had violated his TRO. By doing so, the appeal court held, he tried to “impress on the jury a judicial imprimatur of the people’s position.” Thanks to McKay’s conduct, Perkins now gets a chance to escape an eight-year prison sentence. — Mike McKee Don’t Give Me That Line San Francisco Superior Court is encouraging people to get out of line. Instead of waiting to file papers with a staff person in Room 103 of the civic courthouse, people can now drop papers off and pick up relevant paperwork later, the court announced July 1. The court is offering that option to save time for its employees, said Court Administrative Secretary Barbara Compton. Filing “takes a lot longer when you’re dealing with people at the window” and answering phones, she said. Dropped-off documents are file-stamped with the date they were left. Then people can pick up their endorsed, file-stamped copies and other documents in the filing office lobby after 2 p.m. the following business day — unless that day is a Wednesday. The court recently started closing the civil filing office on Wednesday afternoons. The court says it will discard papers left more than 60 days. People who don’t want to return to the courthouse can have their papers mailed to them, if they include a self-addressed and stamped envelope with their filing. Pam Smith Justices Clarify ‘Wheeler’ Challenges When it comes to determining whether lawyers have acted with racial bias in choosing jurors, California’s 25-year-old standard seems on par with the nation’s. That was the California Supreme Court’s finding on June 30 in comparing the state’s 1978 People v. Wheeler, 22 Cal.3d 258, with the U.S. Supreme Court’s 1986 Batson v. Kentucky, 476 U.S. 79 — both of which set standards for establishing a prima facie case of discriminatory use of peremptory challenges. Batson requires only “an inference of discriminatory purpose,” while Wheeler requires a “strong likelihood” and “reasonable inference” of bias — which critics have said is an unconstitutionally higher standard. In last week’s People v. Johnson, 03 C.D.O.S. 5727, the state Supreme Court, in a 5-2 decision by Justice Ming Chin, found the Wheeler test consistent with Batson. “Under both Wheeler and Batson, to state a prima facie case,” Chin wrote, “the objector must show that it is more likely than not the other party’s peremptory challenges, if unexplained, were based on impermissible group bias.” Justice Joyce Kennard dissented — and was joined by Justice Kathryn Mickle Werdegar. “I disagree with this standard,” Kennard wrote, “and would hold that a defendant need only prove facts that, if unexplained, permit a reasonable inference of discriminatory purpose.” — Mike McKee

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