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California judges and defense lawyers statewide are buzzing about a San Bernardino County jury verdict that some fear could adversely impact court cases by chilling discussions between attorneys in judges’ private chambers. San Bernardino County Deputy Public Defender Michael Kennedy was hit Feb. 8 with a $250,000 defamation judgment in a suit filed by a female deputy district attorney offended by lurid comments Kennedy reportedly made about her during a 1998 conference in the chambers of Victorville, Calif.-based Judge Stephen Ashworth. Jurors, after a three-week trial before San Bernardino County Superior Court Judge Frank Gafkowski Jr., found that Kennedy had tried to destroy the reputation of Kay Neshat, a county prosecutor who tries child molesters, by saying she gets sexual gratification from the evidence she gathers for cases. It isn’t yet clear how much of the verdict will be paid by the county. Today jurors are expected to award punitive damages as well, which would be solely Kennedy’s responsibility. Judges and attorneys interviewed for this story expressed surprise that Kennedy had been sued. While his remarks were inappropriate, they say, they’ve heard far worse over the years. And not one of them had ever heard of a suit being brought over statements made during the heat of battle in a judge’s chambers. “It’s healthy for the parties to go ahead and let their hair down,” said Peter Keane, dean of San Francisco’s Golden Gate University School of Law and a former chief assistant public defender in San Francisco for 20 years. “You don’t want to put a chill on that,” he added. “Sometimes the lawyers need to vent and judges have the good sense and the discretion to let them vent and call them on it when they’ve gone too far. You go beyond that and you really start to crimp the style of the prosecution and the defense.” Yolo County Public Defender Barry Melton was even more emphatic, saying that more verdicts like the one against Kennedy could completely change the way courts function. “The system revolves around brutal honesty in chambers,” he said last week. “Now what are people going to do? Haul court reporters into chambers with them? It does not serve the interests of justice to chill in-chambers discussion.” “I’ve been called everything in chambers from a communist to a drug addict,” Melton added, “and I never took it personally.” Neshat didn’t attend the in-chambers conference at which Kennedy, a flamboyant barrister known as “Captain Motion” for the writs he frequently files, allegedly made the offensive comments, but other attorneys in attendance told her about them. Neshat, who feared the statements could undermine her ability to try child-molestation cases, sued Kennedy for defamation and intentional infliction of emotional distress and the county for negligent supervision. Lawrence Brown, executive director of the Sacramento-based California District Attorneys Association, defended Neshat’s decision to sue. “If this lawsuit chills the kind of conduct demonstrated by the defense lawyer, then the justice system is entirely better off,” he said. “Even though the court houses an adversarial setting, there are still canons of decency that do and should apply.” Melton of Yolo County wondered why, though, Kennedy’s alleged comments weren’t protected by California Civil Code � 47, which provides a litigation privilege against defamation in judicial proceedings. Melton said the litigation privilege was affirmed in two California rulings — 1967′s Friedman v. Knecht, 248 Cal.App.2d 455, and 1990′s Kimmel v. Goland, 51 Cal.3d 202. “Both those cases say there is an absolute privilege against defamation encompassed in the litigation privilege,” Melton noted. “What’s not clear is whether that absolute privilege applies only to things said on the record when a reporter is present, or if it also extends to what used to be known as informal, in-chambers conversations.” Neither Kennedy nor his lawyer, Stephen Miller, a partner in San Bernardino’s Brunick, Battersby, McElhaney & Beckett, returned telephone calls. But Santa Monica lawyer Gary Paul, who represented Neshat, said Wednesday that jurors decided Kennedy wasn’t protected by the litigation privilege because his alleged comments weren’t made in reference to any of the cases being discussed at the in-chambers conference. “It was a generic comment,” the Paul & Janofsky partner said. Jurors were asked on the verdict form, he said, whether they found “by a preponderance of the evidence that the statement made in chambers on Sept. 16, 1998, had some connection with or was logically related to the case being conferenced, and the jury answered that, 11-1, no.” Keane of San Francisco said he doesn’t believe the litigation privilege would have applied even without the jury’s finding. “It’s not occurring during the in-court litigation, so [the privilege] can be very narrow,” he said. “But I think the Legislature may be well advised to broaden the litigation privilege to cover these kinds of situations.” Judges, meanwhile, said that although they found Kennedy’s reported comments offensive and out of line, they encourage lawyers to be candid during in-chambers conversations. “I tell them to speak frankly because I speak frankly,” San Francisco Superior Court Judge Lenard Louie said. “I emphasize to attorneys that what we speak in chambers is private and that nothing is publicized. Otherwise you can’t dispose of a case.” Retired San Francisco Superior Court Judge William Cahill, who now works for JAMS, said he hasn’t let lawyers make personal attacks during his time on the bench or in mediation, and that he would have found Kennedy’s remarks sanctionable. “Those kinds of comments have never helped resolve a case,” he said. “They are so far off the subject.” Even so, he and others, including Brown of the district attorneys’ association, said they don’t foresee any negative repercussions from the jury’s verdict because the circumstances in the Kennedy case were extraordinary. “This was way over the top,” Cahill said. “The kinds of things that are honest and open and on point will not be affected by this.”

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