Judge "Begin[s] a Gender Discrimination Trial with a Presentation Highlighting the Great Achievements" of "Our Nation's Civil Rights Leaders"

Reversible error, concludes a California appellate panel.

|The Volokh Conspiracy |

From Pinter-Brown v. Regents, decided yesterday by the California Court of Appeal, in an opinion written by Justice Maria E. Stratton, and joined by Justices John Wiley and Elizabeth A. Grimes. (Note that this involves a lawsuit against the UCLA Medical School, but I don't know anyone involved in the controversy, and I've had no contact with anyone at UCLA about this case. Also, for whatever it's worth, Justice Wiley was a colleague of mine at UCLA Law for several years, but I have not discussed this case with him.)

Dr. Lauren Pinter-Brown sued The Regents of the University of California for gender discrimination based on a series of events that took place while she was a Professor of Medicine at the University of California at Los Angeles (UCLA). The jury found in favor of Dr. Pinter-Brown and awarded her upward of $13 million in economic and noneconomic damages.

Unfortunately, the trial court committed a series of grave errors that significantly prejudiced The Regents' right to a fair trial by an impartial judge.

First, the court delivered a presentation to the jury highlighting major figures in the civil rights movement, and told the jury their duty was to stand in the shoes of Dr. Martin Luther King and bend the arc of the moral universe toward justice. Second, the court allowed the jury to hear about and view a long list of discrimination complaints from across the entire University of California system that were not properly connected to Dr. Pinter-Brown's circumstances or her theory of the case. Third, the court allowed the jury to learn of the contents and conclusions of the Moreno Report, which documented racial discrimination occurring throughout the entire UCLA campus. Finally, the court allowed Dr. Pinter-Brown to resurrect a retaliation claim after the close of evidence despite having summarily adjudicated that very claim prior to trial.

These errors were cumulative and highly prejudicial. They evidence the trial court's inability to remain impartial and created the impression that the court was partial to Dr. Pinter-Brown's claims….

Here's the court's summary of the trial court's remarks to prospective jurors:

Jury trial commenced on January 29, 2018. As the prospective jurors sat in the courtroom, the trial court stated: "The arc of the moral universe is long. Dr. Martin Luther King said these words in 1965. The arc of the moral universe is long, but it bends toward justice." The court welcomed the jurors, saying, "[i]f you are selected as a juror in this case, your job will be to help bend that arc toward justice."

He then told the jurors Martin Luther King stood on the steps of the Lincoln Memorial in 1963 and gave his famous "I Have a Dream" speech. "In there," the court continued, "he spoke of his dream that someday we would live in a society where people were judged by the content of their character and not by the color of their skins." The court then proceeded to play a video (not part of the record on appeal) and continued to give the prospective jurors a presentation about various noted civil rights leaders standing up for justice throughout history. A verbatim transcript of the court's remarks is attached to this opinion as Appendix A, starting on page 70. What follows here is a summary of the court's remarks.

The court discussed segregation, people being denied the right to vote, and the tens of thousands of people who demonstrated for equal rights for African-Americans in the march from Selma to Montgomery, Alabama during the civil rights movement. The court discussed Rosa Parks and her arrest and conviction for sitting in the front of a bus, which led to a widespread community response in protest. The court told the jury that Parks's attorneys filed a lawsuit that went up to the United States Supreme Court, which held segregation on buses illegal.

The court talked about Elizabeth Jennings, who refused to disembark a trolley in New York City in 1854 after the driver told her to wait for a car for non-white people. The court told the jurors that her attorney took her case to an all-white jury, which found the trolley car company had mistreated Jennings and awarded her one year's salary. The court then informed the jury that the young attorney who represented Jennings went on to become the President of the United States 27 years later.

The court told the jury how Susan B. Anthony voted in a national election before women won suffrage, was arrested, and then acquitted and ordered to pay a $100 fine. "So she stood up in court and said she would never pay a penny of that unjust fine, and she died 25 years later. She still hadn't paid the fine, but women still didn't have the right to vote." The court then mentioned the first woman elected to Congress, Jeannette Rankin, and the first demonstration in front of the White House for women's suffrage. "[F]inally, 1920, the next year," the court continued, "Congress passed the 19th Amendment. It was ratified by the States and women gained the right to vote. That arc is long, it does bend toward justice."

The court then told the jury about Japanese internment camps during World War II and Fred Korematsu, convicted for resisting internment. The court discussed the Supreme Court's initial affirmance of his conviction, the eventual reversal of that conviction, Congress's decision to award reparations to interned Japanese-Americans, and Ronald Reagan's proclamation apologizing for the internment. Again, the court stated, "[t]hat arc is long, it does bend toward justice."

The court told the jury about Dolores Huerta and Cesar Chavez who, the court stated, "appeared … directly in this court many times" and brought attention to "the plight of the poorest of the poor here in California, the Mexican-American and Filipino-American farm workers who were being denied their basic rights under the law." The court told the jury that Huerta and Chavez sometimes appeared as plaintiffs and sometimes as defendants, "each time seeking justice for people just like you sitting here on a jury."

The court told the jury about Harvey Milk, the first openly gay public official in the United States, and his assassination by a member of the San Francisco Board of Supervisors. "He didn't get to see that just … two and a half years ago, our Supreme Court ruled that discrimination against gays and lesbians was unconstitutional, that gays and lesbians, like everyone else, had the right to marry and raise a family."

The judge told the jury he was honored to sit before "the people who are going to be bending that arc." The court then clarified: "Now, why do I talk to you about Dr. King and bending the arc? Is the plaintiff in this case a Dr. King or a Rosa Parks or Elizabeth Jennings? No. Is the defendant in this case a Dr. King or Susan B. Anthony or Cesar Chavez? No. But you as jurors in this case are going to become Dr. King. It's going to be your job to help bend that arc toward justice by rendering a verdict based on the law and the evidence that you are going to be hearing in this case."

The court then concluded its presentation by reciting a passage from Harper Lee's To Kill a Mockingbird in which attorney Atticus Finch tells the jury, "a court is only as sound as its jury, and a jury is only as sound as the men and women who make it up." The court then swore in the members of the jury panel. Attorneys for each party then briefly introduced themselves to the panel and jury selection began.

After a break, UCLA requested a mistrial, noting the court's presentation "lauded this country's struggle with discrimination on the basis of a number of protected bases, including gender, through the highlight of individuals who stood up for themselves against others including governments and institutions." UCLA expressed its concern that the presentation created a "great risk" that the prospective jurors were "preconditioned" to a determination of the facts. "I think the suggestion of an arc of justice," UCLA argued, "in this particular case, [is] not appropriate for [an] individual who's going to argue that she stood up against an institution and a bunch of men and somehow she was harmed and wronged and this is her day on the bus or in the suffragette movement, what have you." UCLA stated it did not believe any admonition could cure the problem, and asked the court to pull another jury panel.

The court denied the motion. The judge stated he gives the presentation before all the trials in his courtroom, and that "sometimes justice is done by the jurors ruling on behalf of the plaintiffs," and "sometimes justice is done by the jurors ruling on behalf of the defendants." The judge said his presentation was a correct statement of the law and that he did not believe the presentation prejudiced the jury….

This was reversible error, the court concluded:

Here, the trial court's remarks … gave the appearance that the court was partial to Dr. Pinter-Brown's causes of action…. The court framed this case as part of a centuries-long fight against discrimination and inequality. The court not only invoked the words of Dr. Martin Luther King, one of our nation's most respected and revered civil rights leaders, it also quoted one of the most well-known lines from Dr. King's famous and venerated "I Have a Dream" speech. At the apogee of the civil rights movement, Dr. King told the world that the "arc of the moral universe bends toward justice." Here, the judge told the jury it was their job to be Dr. King and to help bend that arc.

When UCLA objected to the court's lengthy recitation of our country's history of fighting discrimination and its description of the heroism of the individuals who led those efforts, the court insisted its presentation was not improper or prejudicial because the prospective jurors were told that the lauded civil rights figures were sometimes plaintiffs and sometimes defendants. We are not persuaded.

Regardless of whether Rosa Parks, Elizabeth Jennings, Delores Huerta, or any of the other civil rights icons highlighted in the court's presentation were plaintiffs or defendants, the message was clear: each of them was fighting to right the grave and historic wrong of discrimination. By telling the jurors they were Dr. King, the court told them they were also there to right a wrong. Each case cited by the court was another step in the right direction: toward equality and away from discrimination. The court's message was clear: the jury's job was to continue in that great, noble, and moral tradition of pushing society toward equality.

We appreciate the difficulties faced by trial courts in putting together juries of 12 impartial and willing people…. It is remarkable that our trial courts, in the face of [many prospective jurors'] daily recalcitrance to serve, not only remain gracious, but enthusiastically promote the opportunity to serve by touting to prospective jurors the importance of the court's call to duty.

However, the remarks of the trial court here were not an impartial call to duty; they were a resolute and stirring call to action which stacked the deck against UCLA. It was a grave error for the court to begin a gender discrimination trial with a presentation highlighting the great achievements our nation's civil rights leaders have made toward creating a world free of discrimination and telling the prospective jurors they were carrying on that quest.

Although particularly prejudicial in a discrimination case, we believe the court's comments and call to action are inappropriate in any case. This error was but one of a series of errors that prejudiced UCLA and rendered the trial fundamentally unfair….

There's more on the other legal errors in the full opinion. My general sense from reading the opinion is that UCLA may have engaged in a good deal of illegal racial and ethnic discrimination in various cases, but the Court of Appeal was right to conclude that the trial in this case was not fair; here was the court's take on the evidence:

We conclude this was a reasonably close case. The evidence suggested Dr. Pinter-Brown was treated poorly by Dr. de Vos and her supervisors at UCLA. The timing of the audits after five years of problem-free clinical research could create suspicions about UCLA's motives and intent. The immediate reaction that this was just a personality clash between her and her colleagues is a common employer theme. Additionally, Dr. Glaspy and Dr. Slamon, Dr. Pinter-Brown's immediate supervisors, could have done more to help her and to take her genuine distress more seriously.

On the other hand, there was ample evidence there were legitimate reasons for the audits; Dr. Pinter-Brown did not sufficiently respond to the audit reports; she received the support she needed to regain her privileges as a principal researcher without a loss in pay; and she herself did not feel the harassing and dismissive actions of her colleagues were gender-based.

Based on the totality of the circumstances, we cannot conclude the cumulative errors identified here were harmless. Because the evidence was closely balanced, with two jurors finding in favor of UCLA, we believe it is reasonably probable a result more favorable to UCLA would have been reached in the absence of these errors.

The court's errors constituted a miscarriage of justice and created an atmosphere in which UCLA did not receive a fair trial. Accordingly, we reverse the judgment.

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  1. This is laughably bad by the judge. In what universe did they think they could do this and not get overturned?

    1. In a universe in which some people claim and others believe injecting or ingesting bleach, or swallowing light, is the way to stay healthy during a pandemic?

      Carry on, clingers. Even more dumbassery, please — for the entertainment value during quarantine.

      1. So given that nobody actually claimed that – and nobody actually believed that, you’re admitting that it only exists in the fantasy world in your head?

    2. Worse, the judge didn’t even know his own state’s history — women got the right to vote in 1911, not 1920.
      See: https://www.sos.ca.gov/elections/celebrating-womens-suffrage/california-women-suffrage-centennial/

  2. Hard for me to credit the judges assertion that “he gives the presentation before all the trials in his courtroom”. Even if he only handles civil cases IANAL; is that possible?), I kinda doubt he gives this speech in trials concerning, say, used car warranties or slander.

    1. If so — there might be an awful lot of potential reversals just waiting for the right lawyer (maybe one who will eventually be President….)

    2. He only hears a civil docket (or at least he used to when I was practicing.) And it’s 100 percent believable that this particular judge gives that exact speech before every case, though I don’t think that reflects well on him.

      1. He graduated MCL from Harvard Law…

  3. Those who give these types of presentations are manifestly unfit forlegal institutions.
    For some folks, their cartoonish progressivism evangelism/milennarianism needs to infect every aspect of their own lives and every aspect of society, even the courtroom

    1. So it’s like bigotry and backwardness with conservatives?

    2. The term “Affirmative Action” comes to mind, and one problem with Affirmative Action is that it both makes one suspect that is how the judge got into Harvard Law, was able to graduate MCL from Harvard Law, and then got Davis to appoint him — accurate or not, and I’ve never met the man.

      And when that does happen, it then discredits members of his race who actually earned their degrees and accolades. IMHO, that’s the bigger problem…..

      1. The judge is a white male, so I don’t think “Affirmative Action” is at issue here… His wife is a blonde, so his sexual orientation didn’t factor in, either.

  4. Would the original judge have objected if the defendant’s attorneys wanted to show their own presentation filled with historical examples of false claims of sexual discrimination, or frivolous lawsuits?

  5. The jury awarded $3M in economic damages and $10M in non-economic ones. If the school offers her any amount of money to settle and avoid a re-trial, she would be well-advised to take it. But having gotten $13M, albeit imaginary, she and her attorneys may be deluded enough to think they have a strong case even without reversible error by the judge and go to trial again. A 65-year-old full professor of medicine at UCLA who winds up a full-professor at UCI and seeks recovery for injuries like being called a “diva” by male and female colleagues is not likely to see big bucks again, if she prevails.

  6. This is weird. I know most of these people.

  7. Never confuse a court of law with a hall of justice.

    1. The only justice is in the halls — Howie Carr

  8. “First, the court delivered a presentation to the jury highlighting major figures in the civil rights movement, and told the jury their duty was to stand in the shoes of Dr. Martin Luther King and bend the arc of the moral universe toward justice.”

    OK, that’s pretty bad, and I’d say a retrial was warranted on this basis alone.

    “Second, the court allowed the jury to hear about and view a long list of discrimination complaints from across the entire University of California system that were not properly connected to Dr. Pinter-Brown’s circumstances or her theory of the case.”

    Kind of marginal; The entire university of California system might be biased, (Let’s face it, IS biased.) I could argue this is relevant.

    “Third, the court allowed the jury to learn of the contents and conclusions of the Moreno Report, which documented racial discrimination occurring throughout the entire UCLA campus.”

    Again, seems relevant, though maybe marginal, for the same reason.

    “Finally, the court allowed Dr. Pinter-Brown to resurrect a retaliation claim after the close of evidence despite having summarily adjudicated that very claim prior to trial.”

    Maybe the court decided they’d summarily adjudicated it in error?

    1. How is racial discrimination relevant to Pinter-Brown’s gender discrimination claim? You’d have to make a pretty extraordinary argument to keep 2 and 3 on the table, I think. An itemization of other kinds of discrimination claims similar to this one could be relevant to the suit. A laundry list of unrelated “bad acts”, however, doesn’t prove or disprove anything about the current case.

      1. It DOES demonstrate that the California university system has an established record of engaging in deliberate discrimination on the basis of immutable characteristics, which is similar to this one in THAT regard.

        Not perfectly on point, but marginally so.

        But, since point 1 should be enough to get a retrial, it’s kind of academic.

        1. Brett Bellmore: It’s an interesting question how relevant it is, but it’s also inadmissible hearsay (and, as the Court of Appeal notes, it couldn’t properly be used for non-hearsay purposes).

          1. Yet Bill Cosby’s other victims could testify…

            1. What does that have to do with hearsay?

  9. Forget it, Jake – it’s Chinatown.

  10. Suppose Judge Linfield were correct, and he really does give the same presentation before every trial (not that a panel of appellate judges would ever actually punish a trial judge for lying about such a thing): how do you suppose that impacts mediations and other settlement discussions in cases that have been assigned to Judge Linfield? Carney Shegerian’s office (plaintiff’s counsel) would clearly know about this kind of practice, and make sure to impress its significance upon defense counsel. This could add a considerable amount of settlement value to every plaintiff’s case, especially given the one-sided attorney fee provisions that prevail under FEHA and similar statutes.
    If defense counsel knew about this practice and did not bring a preemptive challenge to the judge (CCP §170.6), if available, then shame on them. Even if that were not available, it would make an interesting basis for a motion to disqualify for cause (CCP §170.1, et seq.).

  11. If I was on that jury, I would want to get up and walk out rather than listen to that crap.

    Do jurors have the right to do that?
    Can a juror complain about the judge?
    If so, to the chief judge?

    1. No, I don’t think they actually have to right to walk out of the trial, though if they know what they’re doing, getting removed from the jury for cause would be very easy.

      Yes, jurors can complain about the judge.

  12. Whether plaintiff or defendant is in the right in this case, how awful. All the expense of trial and appeal and no resolution.

    I am not a member of the California bar so I have no idea whether the judge will be disciplined. It would not be a bad idea. At some point everyone would seem to benefit from drawing back from “celebrity justice.”

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