Sunday, July 26, 2015

County Must Face the Music Juries Hear

Two years ago I sat through a week-long trial involving Doña Ana County.

Witness after witness testified to discrimination, retaliation for reporting discrimination, or just plain meanness and bad management. Permeating the employees' testimony was an extreme and unhealthy fear that key officials could and would do whatever they wanted, without regard to fairness or legality. Other witnesses privately told me that the evidence at trial was just the tip of the iceberg.

The jury awarded $250,000 to Jorge Granados. Plus attorney fees. The jurors I interviewed were passionate that they were sending the County a message they wanted heard.

This month I sat through portions of a week-long trial involving Doña Ana County. Again witnesses testified to discrimination, retaliation for reporting discrimination, and just plain meanness. The case had been pending for four years and could have been settled years ago for $100,000 or so.

This jury awarded $1.45 million (plus attorney fees) to Kim Stewart. Afterward, jurors hugged her and thanked her. Twelve everyday people, given a sudden glimpse into how the County operated, were disgusted. They didn't believe the present and former county officials who testified. Awarding $1 million for “emotional distress” (beyond back-pay, doubled under the Whistleblower Act) sends a strong message.

Curtis Childress drew caricatures of ethnic minorities in a meeting with minority employees who complained.

Kim Stewart investigated Childress, pulling no punches, and was clearly willing to investigate other bad conduct by County officials. She was fired by HR Director Debra Weir. Earlier, then-County Attorney John Caldwell, who'd given her excellent evaluations in July, gave her quite bad ones in December, after she reported on Childress. Maybe her report on Childress was a coincidence, as the County alleged; I don't know; but twelve jurors didn't buy that argument.

Weir apparently ran HR in a way that sparked these two lawsuits and others. Chris Barela ran the jail that mistreated a prisoner so bad that another jury ordered the County to pay $20 million; and according to internal reports, he was guilty of other questionable conduct. Both are still there.

According to witnesses in the two trials, Caldwell and Weir and others did some pretty questionable things. In closing, Stewart's attorney pointed right at Weir and said she needed to go. The jury agreed.
County Commissioners did respond to the Granados verdict. There was an investigation; it became clear that the interim county manager was unlikely to be hired as the permanent manager; and they brought in County Manager Julia Brown. Caldwell left. HSSD Director Silvia Sierra left.

But someone at the County was too arrogant to settle the Stewart case when it could have been settled fairly cheaply. Someone supposed that the failed strategy from Granados – earnest testimony by high county officials and efforts to convince the judge to take parts of the case away from the jury on technicalities – would somehow prevail this time.

But Jorge Granados was not my enemy, or yours. Kim Stewart was not my enemy, or yours. Kim seems to be only the enemy of folks who would provide us a lousy county government. Our agents mistreated both of them. When they sued, maybe we could have gotten off on legal technicalities; but I wish we'd reached reasonable settlements, rather than paying outside counsel a bunch of money to fight them, then paying big judgments (and plaintiffs' attorney fees) anyway.

It's troubling to hear Julia Brown respond that witnesses perjured themselves and Stewart was just a vindictive malcontent. She wasn't around when these things happened. Maybe she should look a little deeper. Two juries and a former investigator shouldn't be dismissed lightly.
 [The column above appeared in the Las Cruces Sun-News this morning, Sunday, 27 July, and will appear on the KRWG-TV website shortly.]
[Please feel free to review my initial post on the jury verdict in Kim Stewart's case, the Sun-News report on the Stewart verdict,  and/or my several posts reporting daily on the Granados trial  -- or search this blog for "John Caldwell" or "Debra Weir" for additional information.  Searching Jorge Granados yields all the columns/blogs regarding his trial, but they're not in order.]
[To the column as written I'd add a couple of points: (1) that I've met Kim Stewart and judge her to be pretty much of a straight,shooter, as people go; (2) that I have a bit of a bias in favor of juries; and (3) that  legal scholars and lawyers have recognized that a city counsel or county attorney may have a slightly more complex ethical position, and slightly different duties, compared with someone representing an individual or a private company.
That is, (1) to the extent that I've talked to Kim, (a) when I've asked her a question that could be answered in one way that helps her point-of-view on something or in another that's more truthful but less helpful to herself, I've seen her pick the more truthful answer; and (b) where there's independent evidence, it has tended to support what she says.
(2) Despite widespread criticism of the system, I believe juries tend to stumble into a correct result much more often than not.  (Disclaimer: the fact that when I practiced law in San Franscisco we handled quite a few big jury trials without losing one might have created this bias in me.)  I understand objections that the jurors don't see ALL the evidence because of the rules of evidence, that they can be swayed by the personalities of lawyers, and that in complex business litigation, particularly involving science and technology, they can't possibly understand all the issues.  Nevertheless, they seem to find what I might call the human truth.   Here, that means that whichever side should have won on certain legal issues in Granados or Stewart, Jorge and Kim probably did get screwed in a way they ought to be compensated by and the actors within the County ought to be punished for.  (By expressing doubt I do not mean to agree with the County lawyers that Judge Arrieta or Judge Beyer made errors, but only to say that even if that were technically true, the two juries seem to have come to the right results.  From what I saw, Judge Beyers did a fine and fair job.) Of course, what I may think or Julia Brown may think doesn't matter: the juries found what they found.
(3) Ethics are easy when you represent someone who got bitten by a dog or hit by a car, or a criminal defendant, or a company litigating an alleged breach-of-contract: you do the best you can for your client, within certain constraints such as not lying to the court or destroying harmful documents or helping your client commit a crime.  In theory, the clash of two such advocates on opposite sides produces a wonderful opportunity for the judge or the jury to see the actual truth, which may differ from either side's position.
But when your client is a county?  Do you represent the county?  The County Manager?  The Commissioners?  The insurer?  The people of the county? The in-house county attorney?  Or all of them?    What if a County Manager or County Counsel is so clearly implicated in the alleged wrongdoing that s/he may lack an objective view of the case or choose to ignore what's right for the county that employs him or her?  Do you still follow the Manager's or Counsel's instructions?  
These can be difficult questions to answer satisfactorily, theoretically or in practice.  Their relevance is that in closely observing a couple of county cases, and reviewing some others more casually, I'm seeing some questionable decisions get made.  By whom I can't say for sure.]

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