The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Martinez v. State of California, Department of Transportation, a California Court of Appeal opinion (some paragraph breaks added):
The accident occurred when members of the funeral train in front of Martinez started to move over to the 57-connector road from the Garden Grove-connector road on which they were traveling. Martinez "looked and checked towards the 57 and started to move over" when he hit the raised divider and lost control. In June 2011, Martinez and his wife Irene Edens brought this action against Caltrans, contending the B4 curb constituted a dangerous condition of public property, particularly dangerous to motorcycles.
In preparation for trial, Martinez's attorney was evidently concerned with some of the cultural baggage associated with motorcyclists—including the very group with which Martinez was riding. The funeral train was a group ride affiliated with the "Set Free" ministries, whose members or adherents are sometimes called the "Set Free Soldiers." [Footnote: Martinez's counsel's concern was reasonable. The Set Free Soldiers have been known to take on the Hell's Angels and a jury might think of them primarily as a motorcycle gang if they were reminded often enough.] Martinez has been ordained as a minister by Set Free ministries. Martinez testified his motorcycle was used to attract the attention of young people in his church work.
The logo of the Set Free Soldiers is a rather fearsome, skull-like face wearing—and we choose our words carefully here—World War II German-style military helmet. These are sometimes called "Fritz helmets," and do not look much different in silhouette from the advanced combat helmet currently used by the American Army. The Set Free Soldier logo appeared on Martinez's motorcycle in at least two prominent places: on the casing that holds the headlight at the front of the bike and on top of the gas tank right over the engine. The logo is also clearly visible on a relatively large tag attached to the key of the motorcycle as it hangs just under the seat.
Accordingly, Martinez's counsel brought several in limine motions. One sought to exclude any references to Martinez's "membership in any motorcycle club/gang or the stickers/emblems" of that gang. Counsel also sought to exclude information about his termination of employment from a school district years before, in 2003. Both motions were granted. Also granted was a motion to exclude hearsay statements from medical reports. Further, and more generally, Martinez's counsel also sought—and obtained—a prohibition of evidence or testimony designed to elicit sympathy from the jurors for Caltrans, including its allegedly strapped financial condition….
In forensics there is what has become known as "Godwin's Law." Broadly speaking, Godwin's law is that the first side in an argument to compare the other side to Hitler or the Nazis loses. [Footnote: … For a serious discussion of in-court references to Hitler and the Nazis, including the problem of ad hominem attacks, see Teninbaum, Reductio ad Hitlerum: Trumping the Judicial Nazi Card (2009) 2009 Mich. St. L. Rev. 541.] Apparently unaware of this rule, [Caltrans lawyer Karen] Bilotti used Martinez's damaged motorcycle to make a gratuitous, out-of-the-blue attempt to link Martinez to Nazis.
The Nazi reference came at the end of Bilotti's cross-examination of Martinez's wife Irene Edens. Bilotti's apparent strategy at that point in the trial was to undercut the positive associations that had been built up by previous testimony mentioning Martinez's ordination as a clergyman. Bilotti wanted to juxtapose those associations against the tough-guy logo of the Set Free Soldiers as plastered on Martinez's motorcycle. So, during her cross-examination of Edens, Bilotti made reference to a certain exhibit 2.6.
The exhibit, as shown in our record, is a picture of Martinez's motorcycle showing the Set Free Soldiers logo on the gas tank and also (prominently) on the key chain. Martinez had already testified he spent a year in preparation for his ordination by Set Free ministries by studying the Bible and the license plate on the motorcycle had the (Biblically ironic) appellation, "THE EVL 1." [Footnote: The devil is referred to as "the evil one" in some translations of two New Testament passages. (See II Thessalonians 3:3; I John 5:19.) The trial judge showed remarkable insight as to the license plate. He guessed, probably accurately, that it was the motorcycle itself that was being analogized to the devil.]
Thus, after recounting Martinez's wife's testimony about Martinez's work as a clergyman, Bilotti showed exhibit 2.6 to Irene Edens, and asked the judge to "publish" it, i.e., show it to the jury. There was an immediate objection, and the trial judge—prudently—said he would defer the matter until after the break where he could consider it further.
Frustrated by the trial judge's unwillingness to let her show the picture of the cycle immediately to the jury, Bilotti immediately played the Nazi card. She asked: "At the time of the accident, the motorcycle that your husband was riding had a skull picture on it wearing a Nazi helmet; right?" …
Martinez's counsel thought it necessary to decry the earlier Nazi reference during his closing argument to the jury. Bilotti seized the opportunity in her own closing to reinforce the association. Whereas before the Nazi reference was only to a helmet, and was isolated, Bilotti now exploited the opportunity to psychologically link Martinez to Nazis by paraleptically using the word "Nazi" six times in rapid succession. [Footnote: Paralepsis is a formidable Greek word for the rhetorical trick of making a point by telling your audience you don't want to make that very point. One of the most famous examples is from Marc Anthony's famous Romans-lend-me-your-ears speech. Anthony says he came to bury Caesar, not praise him. No, the whole point of the speech, in context, is that he really did come to praise Caesar, and thereby whip up the crowd against Caesar's assassins.] And this time the link was stronger—Bilotti wasn't just referring to a mere article of clothing but to Martinez himself.
This was just part of what the Court of Appeal concluded was a pattern of serious misconduct. Here's a summary from the start of the opinion—and the end:
This is a case of egregious attorney misconduct…. Blessed with a trial judge who allowed it, trial counsel ran roughshod over opposing counsel and the rules of evidence. We have no choice but to reverse.
Generally, what happened is this: Defendant's attorney Karen Bilotti would ask a question in clear violation of the trial court's in limine orders. The question would usually have the effect of gratuitously besmirching the character of plaintiff Donn Martinez. An objection from Martinez's counsel would follow. The trial court would sustain the objection. Bilotti would then ask the same question again. The trial court would sustain the objection again. And the same thing would happen again. And again. And again. And again.
Because of the cumulative effect of Bilotti's misconduct we must reverse the judgment Bilotti obtained on behalf of her client, Caltrans. While Judge Di Cesare showed the patience of Job—usually a virtue in a judge—that patience here had the effect of favoring one side over the other. He allowed Bilotti to emphasize irrelevant and inflammatory points concerning the plaintiff's character so often that he effectively gave CalTrans an unfair advantage. Imagine a football game in which the referee continually flagged one team for rule violations, but never actually imposed any yardage penalties on it. That happened here and requires reversal….
Pursuant to section 6086.7 of the Business and Professions Code, the clerk of this court is hereby instructed to send a copy of this opinion to the State Bar, notifying it the reversal of the judgment is based solely on prejudicial attorney misconduct. The mailing of this opinion to counsel and its disposition will also constitute notification to Attorney Bilotti the matter is being referred to the State Bar.
Thanks to Steve Newman for the pointer.