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Migrant Gets a New Trial; Judge Scolded

June 05, 2003|H.G. Reza and Christine Hanley | Times Staff Writers

Citing misconduct by an Orange County Superior Court judge and a trial attorney, an appellate court has ordered a new trial in a 2001 medical malpractice case in which "the court held preconceived ideas based on stereotypes of undocumented aliens."

A stinging 21-page opinion by the 4th Appellate District Court, issued Tuesday, chastises Judge James M. Brooks for "comments that raised doubts about the fairness and impartiality" of the trial. The court also found that Brooks' "discretion was so abused that it resulted in a manifest miscarriage of justice."

The court ordered the presiding judge of the Orange County Superior Court to assign the case to a new judge when it comes to trial again and referred the lawyer for possible disciplinary action by the State Bar.

The case stemmed from a lawsuit filed by Miguel Hernandez -- an undocumented immigrant from Mexico who was 36 when the case was filed -- against Dr. Richard M. Paicius. The suit claimed the physician, who treated Hernandez for a work injury to his right hand, left him persistently hoarse after an injection of pain medication in his throat.

The appellate court said Brooks prejudiced the jury against the plaintiff from the start by allowing Paicius' attorney, Constance A. Endelicato, to tell jurors in her opening statement that Hernandez was in the country illegally.

The unanimous appeals court opinion, written by Justice Raymond J. Ikola, also singled out Endelicato for a "dulled sensitivity to professional ethics" for her vigorous cross-examination of Hernandez's expert medical witness.

Other lawyers in Endelicato's firm represented the witness, Dr. Fred E. Aengst, in a different medical malpractice suit.

During the trial, Endelicato attacked Aengst's credibility by listing more than a dozen malpractice suits that had been filed against him and reminding him that his medical license had once been suspended, the appeals court said.

"The spectacle of an attorney skewering her own client on the witness stand in the interest of defending another client demeans the integrity of the legal profession and undermines confidence in the attorney-client relationship," the appellate decision said.

The judge, however, was the target of much of the appellate court's criticism. The court cited several comments Brooks made that "cast the judicial system itself in a bad light."

"It's too bad this poor gentleman hurt his foot, hand, whatever, but he came here to work illegally," Brooks said to Hernandez's attorney, Kent M. Henderson, out of the jury's hearing.

"He's running the risk of getting injured on any job.... Tough. That's your problem."

Quoting from trial transcripts, the appellate court said Brooks went on to say that Hernandez was "faking" some of his injuries.

He also said that Hernandez was "claiming this hoarseness has impacted his life so much he's entitled to a ton of money from this good doctor [Paicius]."

The appeals court also concluded that Brooks "recited a veritable litany condemning and impugning the character of undocumented immigrants, including plaintiff, who place a burden upon the taxpayers ... and then add insult to injury by suing [medical] providers."

When Henderson argued before trial against allowing the jury to know that Hernandez was an undocumented immigrant, the judge said "just like in a burglary conviction in a criminal trial -- prejudicial ... but [that evidence] gets admitted all the time."

Attorney Federico Sayre, whose firm represented Hernandez, called the judge's statements "vicious and prejudice in the extreme."

"We try to make the law and the courtroom an antiseptic model of fairness and justice for everyone," Sayre said. The judge "allowed the defense counsel to appeal to prejudice when it has no relevance whatsoever."

Brooks, 65, a former Orange County prosecutor appointed to the bench in 1986, declined to comment on the decision.

In its ruling, the appeals court also ordered Endelicato to forward a copy of its opinion to the State Bar for possible disciplinary action against her.

In a telephone interview, Endelicato said she was "comfortable" with the action taken by the court.

Endelicato said she was not aware that her firm's Los Angeles office was representing Aengst in a malpractice lawsuit until the trial started. Endelicato said she did not use any information gathered by her firm as part of the attorney-client relationship against him in the Hernandez case.

Henderson said he thinks Hernandez is living in Mexico, but he expects him to return for a new trial.

*

Times staff writer Mai Tran contributed to this report.

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