Change is afoot in San Francisco Superior Court’s complex litigation department, where Judge John Munter began a new assignment on July 2.

Presiding Judge David Ballati said the state Administrative Office of the Courts has voiced support for the creation of a second complex litigation courtroomin San Francisco, even though it hasn’t formally approved the extra funding yet.

Ballati said he hopes to receive state funding “in the neighborhood of $225,000″ to pay for the expansion. Last year, he said, the court spent just under $421,000 on the complex litigation courtroom already run by Judge Richard Kramer, who remains in the same assignment.

Cases assigned to the complex litigation department � class actions and mass torts, among others � usually require extra resources from the courts. Munter said he and Kramer together will have the chance to test creative approaches to case management, “where you’re not always locked in to the traditional ways of proceeding.”

One example of this flexibility is the way that complex cases will be assigned. Instead of splitting up cases by case number, as Alameda County’s complex litigation department and some others do, Munter said he and Kramer will talk about each new case individually to figure out who should be the judge.

“Our plan is to have no plan,” Munter said. “In other words … the only real rule or practice that we’re going to follow is to take into account all the facts and circumstances and do what’s best for the lawyers in the case, the resources and so forth.”

In the Alameda County Superior Court, all odd-numbered cases automatically get assigned to Judge Robert Freedman, and all even-numbered cases are assigned to Judge Bonnie Lewman Sabraw.

That system “allows a consistent method of evenly allocating the caseload between the two departments, [and] it gives counsel predictability,” Freedman said.

The judges view it differently in San Francisco.

Kramer said that litigants come to the complex courts expecting individual attention, and he treats each of them differently.

“It doesn’t do you any good at all to try to count beans here,” he said.

Kramer said judges in the complex courts are required to use resources efficiently, and assigning cases on an even-odd basis would be “totally random in terms of the allocation of our resources.”

One possible advantage of the Alameda County system: With cases assigned automatically, neither judge can complain that the other is hogging all the most interesting cases.

Munter said he doesn’t expect to have problems splitting up cases with Kramer.

After all, he said, the two have known each other for years and their approaches to litigation are very similar.

Matthew Hirsch


Jared Marks is one lucky fellow. His prison sentence of 35 years and eight months got voided last week � thanks to a judicial slipup.

As it turns out, Kern County Superior Court Judge Michael Bush made the mistake of handling part of the jury voir dire“somewhere outside” Marks’ and the jurors’ presence. Fresno’s Fifth District Court of Appeal made it clear that was no small mistake.

In a July 2 ruling in People v. Marks , 07 C.D.O.S. 7864, Justice Gene Gomes held that Marks had shown “his right to due process was violated by the court’s conducting a portion of the jury selection off the record, outside the presence of the prospective jurors and outside his presence without his waiver.”

He said the judge’s off-the-record jury selection created a “breakdown in attorney-client communication” that allowed a man whom Marks and his attorney wanted to excuse from the jury to get impaneled. That man became the jury foreman.

Justices Brad Hill and Stephen Kane concurred.

The flawed voir diretook place in a case in which Marks was accused of first-degree robbery, first-degree burglary and assault with a firearm. He was accused of attacking a man in Kern County and taking the victim’s wife’s car.

According to last week’s ruling, Judge Bush went off the record during Marks’ voir direand told attorneys for both sides that “the jury would be selected � outside their presence.” The attorneys initially balked at the suggestion and asked Bush if he was serious. The appellate ruling did not indicate Bush’s reasoning.

In a new trial motion, Marks argued he had intended to remove a prospective juror identified only as “Mr. 672075″ because the man said he might consider Marks guilty if he didn’t take the stand in his defense.

In the wake of the judge’s actions, Marks’ trial attorney claimed he completely forgot to excuse the juror.

The Fifth District noted that criminal defendants have a due process right to be present at any stage of the trial in which their presence would be critical to the fairness of the proceedings.

“Due process ‘clearly requires that a defendant be allowed to be present “to the extent that a fair and just hearing would be thwarted by his absence,”‘” Gomes wrote.

A new trial was ordered for Marks.

Mike McKee

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