It’s good that Greenfield is on this one. A lot of lawyer-bloggers should be.
Read more about it here.
A couple of points. There’s nothing at all unusual about the evidentiary ruling in this case, as wrong and blatantly partisan as it is. This is what judges do: they use their position to preserve the status quo. That means they don’t like acquittals in criminal cases and they try to prevent them, which is to say they try to ensure guilty verdicts. And they really don’t like “high” jury verdicts in civil cases in favor of lowly individuals and against institutional litigants, so they do what they can to prevent them.
And as the linked story shows, they can do quite a lot. They can eviscerate your case so that you can’t really present it fairly to a jury if you follow their rulings. They put you in a position where you either have to comply with their rulings and lose, or defy them and risk contempt findings, mistrials and assorted other consequences that ordinarily will also mean losing.
One commenter to Greenfield’s post suggests an interlocutory appeal. Probably the optimal thing under the circumstances without going too far afield, but of course an interlocutory appeal is going to delay things beyond what any plaintiff’s lawyer would have reasonably budgeted for the time the case would take; no matter how wrong the ruling appealed from, it is quite unlikely to succeed; the Plaintiff’s lawyer would probably have to finance the appeal out of his own pocket and might not be able to; and even in the unlikely event that an appeal is successful, the trial judge can and will continue to undermine the Plaintiff’s case in other ways, and will probably be able to undermine any appellate court’s directions on remand, too.
This is the reality of the situation. It has nothing to do with the ‘law’, and despite the judge’s remarks it has nothing to do with conserving judicial resources; it’s about who has power over who. Any individual Plaintiff’s case going up against an institutional litigant is extremely fragile. It’s easy for a judge to fuck it up when they want to, and of course they want to, and there is no really effective system-approved remedy for that. Going to trial hamstrung is no remedy. Getting held in contempt is no remedy. And appeals are no remedy either.
The second point is this: the case has wider social ramifications, especially for the Oakland area. Indeed, unlike the vast majority of criminal cases brought by the government, this case is actually socially important, and it’s a prime example of why we have courts and permit causes of action for civil wrongs where we compensate wrongfully injured people. The alternative, in context, is free rein for certain segments of society – police and banks come to mind – to injure others of lesser status with impunity. This leads eventually to civil unrest and lawlessness. And Oakland is fertile territory for civil unrest and lawlessness.
So I think the answer to this judge’s malevolent ruling isn’t an interlocutory appeal – it is a lawyer’s strike.