Same old Judge Byrdsong: The fix is in, and if it is not, he will put it in
Court Committed Prejudicial Misconduct By Intervening In A Significantly Uneven Fashion And Conveying Message It Was Allied With Defense
“A trial court commits misconduct if it persistently makes discourteous and disparaging remarks to [one party’s] counsel so as to discredit the [party] or create the impression that it is allying itself with the [other party].” People v. Sturm (2006) 37 Cal.4th 1218, 1233. Here, the Court intervened in a significantly uneven fashion and implied such interventions were made in the defense’s stead, including disparaging Plaintiff and her counsel. Id.
1. Court Repeatedly Engaged In Misconduct
a. July 12—Incident 1: “Counsel, what are we doing here?”
After Carlisle testified on direct she did not recall whether Plaintiff ever told Carlisle she
had ADHD or complained of the failure to accommodate her, (RT 7/12/23, 84:3-16, 87:11-25), the court repeatedly intervened to prevent Plaintiff’s counsel, Diana Wang Wells, from questioning Carlisle on re-cross examination regarding her contacts with Plaintiff, including a meeting when Plaintiff claimed she raised these issues with Carlisle. (RT 7/12/23, 95:18-97:9.)
The Court twice interrupted Ms. Well’s questioning by ordering “sustained,” although defense counsel had not asserted any objection. (RT 7/12/23, 96:3-9.) By sustaining phantom objections, the Court “impl[ied] an alliance with [defense counsel]”. Sturm, 37 Cal.4th at 1238.
Moreover, on a third occasion, when Ms. Wells asked Carlisle if Plaintiiff told her during their meeting that she had ADHD and needed an accommodation, the Judge interjected: “That’s asked and answered.” (RT 7/12/23, 96:13-18.) Yet, Ms. Well had not yet cross-examined Carlisleon this issue after it was raised on direct. (See, generally, RT 7/12/23, 66:20-79:5, 94:24-96:18; see also RT 7/12/23, 84:3-16, 87:11-25.) Nevertheless, the Court next turned to Carlisle and asked her:
“Want to answer it again?” Carlisle answered: “No.” (RT 7/12/23, 96:17-18.) By giving Carlisle a choice, the Court again created the impression it was allied with the defense. Sturm, 37 Cal.4th at 1238. Also, this improper flourish conveyed to the jury that the Court thought Ms. Wells was wasting the witness and the jury’s time. Sturm, 37 Cal.4th at 1242.
When Ms. Wells resumed asking Carlisle about Plaintiff’s accommodation requests, the Court improperly sustained objections to two questions as “beyond the scope,” “352,” “asked and answered,” and “argumentative.” (RT 7/12/23, 96:20-97:5; see RT 7/12/23, 84:3-16, 87:11-25.)
Then, before Ms. Wells could articulate her next question, the Court abruptly admonished her before the jury, stating in an antagonistic tone: “Counsel, what are we doing here?” (RT7/12/23, 97:7-9; Al Faiz Decl. ¶ 23; Wells Decl. ¶ 4.) The Court’s rebuke implying Ms. Wells’ questioning was incompetent or improper was misconduct. Sturm, 37 Cal.4th at 1240-1241.
b. July 12—Incident 2: “Well, I’m not sure what we’re doing.”
Similarly, when Ms. Wells sought to ask Carlisle about the County’s accommodation policy, the Court repeatedly interrupted Ms. Wells and made comments disparaging her in front of the jury. (RT 7/12/23, 73:28-77:13.) Ms. Wells began by asking a couple of questions, which the Court asked her to rephrase, specifically instructing Ms. Wells to “focus on [sic] the question on the policy.” (RT 7/12/23, 73:28-75:12.) Yet, when Ms. Wells expressly asked Carlisle what an employee is required to do to trigger an interactive process under the policy, defense counsel objected, and the Court did not overrule (or sustain) the objections. (RT 7/12/23, 75:27-76:11.) Instead, the Court interrupted Ms. Well’s interrogation and commented disapprovingly:
“The policy reads what you just said, Counsel. [¶] Let’s ask a question.” (RT 7/12/23, 76:8-10.) Thus, without sustaining any objection, the Court ridiculed Ms. Wells in front of the jury about the form of her question. Sturm, 37 Cal.4th at 1235-1236, 1242-1244.
Then, Ms. Wells inquired about Carlisle’s understanding of Defendant’s obligations in the interactive process, and defense counsel repeated the same objections, which the Court overruled. (RT 7/12/23, 76:15-21.) However, before Carlisle could answer, defense counsel interrupted to ask that, “before documents are displayed, can we have a representation of what the document is.” (RT 7/12/23, 76:22-24.) Defense counsel was evidently referring to the County’s accommodation policy, which had been received into evidence and displayed in Court during questioning of Carlisle, as reflected in the record. (RT 7/12/23, 73:28-74:10, 75:15-26; Al Faiz Decl. ¶ 24, Trial Ex. No. 287.) The Court responded: “It’s in evidence.” (RT 7/12/23, 76:25.)
Still, while Ms. Wells’ question remained pending, and despite all the objections having been overruled, defense counsel persisted in interrupting Ms. Wells’ cross-examination of Carlisle, demanding to know: “Is it refreshing her recollection? Does she want her to read it? [¶] I just need a little bit of indication for the record of what she’s doing.” (RT 7/12/23, 76:26-77:1.)
The Court commented dismissively: “Well, I’m not sure what we’re doing.” (RT 7/12/23, 77:2; Al Faiz Decl. ¶ 23; Wells Decl. ¶ 5; RT 7/12/23, 76:15-21.) The Court interrupted Carlisle’s cross-examination and directed Ms. Wells to ask another question, stating: “I mean, the policy is in evidence. . . . So, yeah, policy. There it is. [¶] I don’t think the County is disputing that this is their policy, and that’s what policy says. . . . [¶] So, next question.” (RT 7/12/23, 77:4-13.)
Despite overruling the objections, the Court entertained defense counsel’s colloquy and followed her lead by disrupting Ms. Wells’ cross-examination, conveying the message Ms. Wells was engaged in incompetent or improper questioning. Sturm, 37 Cal.4th at 1242.
c. July 13: Court Denied Motion for Mistrial
Plaintiff moved for a mistrial based on the above-referenced comments. The Court deniedthe motion and refused Plaintiff’s request for an admonition to the jury. (RT 7/13/23, 3:1-5:10. The Court stood by the above-referenced rebuke that “Counsel, what are we doing here?”, (RT 7/12/23, 97:7-9), claiming it came “after [Ms. Wells] continued to ask questions that were beyond the scope[.]” (RT 7/13/23, 4:19-25.) Then, the Court accused Ms. Wells of deliberately “trying to, I guess, backdoor some things that you didn’t cover.” (RT 7/13/23, 4:25-26.) Yet Ms. Wells’ questions were not beyond the scope. (See RT 7/12/23, 84:3-16, 87:11-25.)
Concerning the second statement that “Well, I’m not sure what we’re doing[,]” (RT 7/12/23, 77:2), the Court did not provide any basis for denying the motion. (RT 7/13/23, 3:1-5:10.)
d. Thereafter, The Court Continued Its Inappropriate Interjections
Thereafter, the Court continued to interject into the proceedings, including frequently disrupting Plaintiff’s counsel’s examinations and engaging in a pattern of disparaging Plaintiff and her counsel before the jury, all the while signaling to the jury that the Court is allied with the defense. This lopsided intervention created an atmosphere of unfairness that pervaded the trial.
(1) Sustaining Meritless Objections Only To Overrule Them, While Blaming Plaintiff’s Counsel For Wasting Time Throughout the trial, a pattern emerged where the Court repeatedly sustained objections or disrupted Plaintiff’s counsel’s examinations, only to then allow the questioning thus making clear the disruptions were unwarranted, yet nonetheless conveying the message that Plaintiff or her counsel were doing something improper or causing unnecessary delays.
After defense counsel cross-examined Plaintiff about whether she only felt sick after receiving her supervisor’s emails on January 14, suggesting her hypertension was caused by stress from the emails, (RT 7/24/23, 121:4-28), the undersigned on re-direct sought to show her symptoms started earlier and resulted from failure to accommodate. (RT 7/24/23, 143:5-145:23.)
The Court sustained asked and answered objections to three questions asking when Plaintiff received or became aware of the January 14 emails. (RT 7/24/23, 143:5-23.) Yet, Plaintiff had not testified when she became aware of the emails. (RT 7/17/23, 120:11-15; RT 7/24/23, 15:13-15.).
Then, Plaintiff’s counsel began to ask Plaintiff when her symptoms started, but the Court interrupted and proceeded to explain the purpose of re-direct to counsel: “Redirect is not having her re-testify to what she’s already said. That’s not redirect. [¶] You respond to what counsel brought up. [¶] We covered this. We have covered this.” (RT 7/24/23, 143:28-144:4.) Plaintiff’s counsel explained she wanted to clarify the timeline of Plaintiff’s symptoms, which was raised on cross-examination. (RT 7/24/23, 144:5-7; see RT 7/24/23, 121:4-28.) Then, the Court accused counsel of wasting the jurors’ time: “You haven’t asked her anything new I’m not trying to argue with you, but when we’re going here, and I have to keep saying ‘sustained,’ this is not being productive for our jurors’ time.” (RT 7/24/23, 144:11-14.)
