Monday, February 20, 2017

Met News Blasts Appellate Court Justice Elwood Lui For Hacking Judicial Election

The Los Angeles Metropolitan News-Enterprise delivered a Valentines Day massacre to Associate Appellate Court Justice Elwood Lui in its April 14, 2017 Perspectives column.

The Met News makes a compelling case for believing that Lui authored his August 31, 2016 opinion in People v. Jin (B267638) to interfere with, or 'hack,' a judicial election. It's a startling allegation, yet the Met News' Perspective appears to fully support that conclusion.

Lui's opinion overturned a jury's verdict that James Jin had not been restored to sanity. That verdict came at the conclusion of a civil trial. Deputy District Attorney David Berger, then a candidate for Judge of the Superior Court, had opposed the restoration of sanity petition brought by Jin. In overturning the jury's verdict, Lui ordered that Berger be investigated by the State Bar for  'Prosecutorial Misconduct,' notwithstanding that the trial was neither a prosecution, nor a criminal trial. The State Bar has written to Berger stating that it will take no such action, and considers the matter closed.

Lui (76), has not responded to requests from the Met News to explain not only the basis of his opinion, but perhaps more importantly, to explain the timing of it, coming as it did only weeks before the election. While the merits of Lui's opinion struggles to pass the strait-face test, the timing of it clearly does not: The Met News had little or no doubt that Lui timed his opinion to impact a judicial election in favor of Berger's opponent; then Deputy Attorney General, now Superior Court Judge Kim L. Nguyen who, like Lui is a Democrat and fellow Asian-American. 

The merits, or lack thereof, of Lui's opinion are discussed further below. Suffice it to say that Lui saw fit to overturn a jury's verdict and report Nguyen's rival runoff candidate to the State Bar for "prosecutorial misconduct." The case in question was a civil jury trial in which a paranoid schizophrenic sought a declaration that he had been restored to sanity. The alleged prosecutorial misconduct was a single question alluding to Jin's right to apply for restoration of sanity every 12 months, an area of questioning previously alluded to not once but twice by Jin's own attorney.

Lui's opinion and it's finding of prosecutorial misconduct, served no useful purpose to Jin whatsoever. There was no urgency as Jin was not incarcerated and so far as Lui was aware, remained in an out patient mental health program following the jury's verdict. Lui could easily have deferred delivering opinion until the day after the November election so as to avoid the potential of impacting the election in favor of Nguyen. Equally, there was no earth-shattering legal precedent contained in Lui's opinion – it is unpublished and cannot be cited in other cases.  And rightly so.

The sole question that formed the basis for a Lui's reversal of the jury's verdict and a finding of prosecutorial misconduct was asked of Jin at the conclusion of his cross-examination, "And you'll be back in another year if they don't allow you to be restored?" It was what most would agree at its worst to be simply a harmless error given the overwhelming weight of evidence showed Jin had not been restored to sanity. At best, it was no error at all, and simply an exercise of the right to fully cross-examine Jin on an area that had already been raised by his own attorney. Further, that same jury had already learned of Jin's prior attempt at restoration of sanity. Nevertheless, Lui claimed it was prosecutorial misconduct because it told the jury that "a finding of no restoration would not be the end of the road for Jin." Lui said that was prosecutorial misconduct.

Established examples of what actually constitutes prosecutorial misconduct include:
To label as prosecutorial misconduct the asking of single question, in a civil trial, in cross-examination of a topic first raised by the opposing party, where the overwhelming weight of evidence supported the jury's verdict, could not only be viewed as intellectually dishonest, but depreciative and trivializing of the term.

In the light of the above, the Met News' belief that the only useful purpose behind Lui's opinion was to interfere in the election not only appears to be valid, but one raising serious questions about Lui. 

As to the timing of Lui's opinion, just weeks before the election, the Met News opined that Lui had "misuse[d] his position" by "improperly interjecting himself into a political contest" and "created the appearance of impropriety." The Met News analogized Lui's opinion to the statements of retired LA Superior Court Judge David Yaffe when he "launched into a tirade from the bench against then- District Attorney Gil Garcetti just three weeks before the 1996 primary election."

The Met News has called for a "disciplinary investigation" into Lui's conduct by the Commission on Judicial Performance. That investigation could well impact Lui's own judicial aspirations – he's in line for elevation to the post of presiding justice of Div. Two.  The Met News, however, believes that Lui will nevertheless be confirmed. Such appears to be the sorry state of partisanship in California.

No Innocent Explanation:
That Lui has not responded to requests for comment from the Met News, perhaps speaks louder than any comment or observation in the Valentines Day Perspective. Lui cannot claim to have been unaware of the upcoming judicial election nor the identity of a fellow Asian-American Democrat as a candidate. According to the Met News, Lui is known for his "political astuteness" and that his opinion would assist Ms. Nguyen's electoral chances. Lui has had the chance to explain his opinion, and no legal impediment appears to prevent him from doing so as the decision in the case is final. That he has chosen to remain silent appears to support the Met News' Perspective.

Appearance of Impropriety:
That Lui appears unconcerned over any suggestion that the timing of his opinion would raise concerns as to the appearance of impropriety, Lui equally does not appear concerned that any possible nexus between himself and Ngyuen would also cast doubt on his impartiality. Lui and Nguyen shared more than just political beliefs and demographics; they also shared the same building – 300 S. Spring Street in downtown Los Angeles is not only home to the Second District Court of Appeals where Lui sits, but it was also home to Attorney General's Office where Nguyen worked. Furthermore, prior to Nguyen working at the Attorney General's Office, Nguyen was a Writs Attorney for the Court of Appeal, although it is unknown whether that assignment was also in the same building. If the above does not set off alarm bells as to the appearance of impropriety, it's hard to tell what would. While Nguyen has claimed not to know Lui personally, Lui has neither confirmed nor denied any knowledge of Ngyuen or her candidacy. All of the above could be mere coincidence, however, there's only room for so many coincidences before one begins to see that the Met News' Perspective appears to be on the money.

The Merits of the Case:
As for the merits of the case, Lui's opinion chose to ignore any argument that jury had heard ample, convincing, and compelling evidence that Jin remained mentally ill and a danger to himself and others if not required to continue receiving mental health treatment in a court-ordered out patient program.

The evidence presented at the restoration of sanity trial was that Jin had a long history of mental health illness. The jury heard that Jin had been diagnosed as paranoid schizophrenic. Expert witnesses for Jin agreed that this is a condition for which there is no cure. It is a condition that can only be controlled by medication.  The jury also heard, however, that Jin had a long history of failing to take his medication when unsupervised.

The jury heard that when Jin stopped taking his medication he becomes violent. They heard of the first time Jin stopped taking his medication and started having delusions. Those delusions led him to believe he was entitled to a job at an office building. After entering that building and finding no such job, Jin set fire to a trash container in the mens' room and a Christmas tree in the lobby. After spending 13 months in the State Hospital before being found mentally competent, Jin was convicted of Arson and sentenced to 3 years of probation where he was ordered to receive mental health services at the Asian Pacific Center as a condition of probation.

As soon as Jin's probation ended, Jin stopped attending the Center, and stopped taking his medication. Predictably, Jin started experiencing delusions again. This time Jin believed he was entitled to inherit his late father's home.

Those delusions took Jin to a Beverly Hills real estate office where he believed someone was wrongfully withholding the deeds to his late father's house. After entering the office and demanding to see the manager, Jin became impatient, pacing back and forth in the reception area. Jin walked behind the receptionist's desk, picked up a large glass vase and said to the receptionist "Nice bucket." The receptionist replied, "It's not a bucket, it's a vase," at which point Jin smashed the vase over the receptionist's head, severing off a portion of her ear. The receptionist fell to the floor, and Jin then stamped his feet on her head screaming "Give me my fucking deeds, bitch!" before being forcibly restrained by office workers and a security guard.

The jury heard that Jin was found not guilty of the crimes of mayhem and assault with a deadly weapon, by reason of insanity. Jin was sent to the State Hospital where he remained until he was found suitable for placement in a closely monitored out patient program. The jury heard that Jin had not performed well in the out patient program, resisting therapy and being fixated on there being causes for his conduct other than any mental illness. The jury heard that Jin had to be removed from the out patient program and returned to the State Hospital for a period to be stabilized.

The jury heard of the four levels of progress in the out patient program necessary to be attained before Jin could be considered restored to sanity. They heard that Jin was still at the first level having at one time advanced to the second level, but regressed back to level one.

The jury heard, thanks to his own attorney's questions, that Jin had the right to apply for restoration of sanity after 12 months in the out patient program, and that this was not his first application, an earlier application having been withdrawn.

The jury heard that essential to the success of any restoration of sanity is a plan for life after leaving the out patient program. A typical plan includes a place to live, a place to continue to receive medication and therapy, a friend or family member who could be of support in times of need, and a means of income. The jury heard that Jin's plan was flawed, relying on returning to the Asian Pacific Center and on support from his brother. On cross-examination it was revealed that Jin's brother had relocated to Northern California and did not want Jin to reside with him.

If the jury had already heard more than enough to convince themselves that Jin was not ready to be restored to sanity, perhaps the most compelling such evidence came from Jin himself.

People's Exhibit One, a two-page rambling handwritten letter authored by Jin and sent to the trial judge during the pendency of the proceedings, produced a jaw-dropping response from the jury.


In the letter, Jin talks of his "achievements" such as his "flight record" – the 100+ hours of time spent as a passenger on various flights where he "gets up to 40,000 feet into Ozone." Jin also counted several shorter flights, circling "night flights" for special attention. Jin also listed his work record, noting the number of elevator rides he had to take to do his job "rode the elevator 1,200 times up and down to 28th floor, 1991-1992" and "2,400 times lobby to 8th floor 1992-1993," and "600 times up and down to 20th floor 1994." Jin also drove "Super Shuttle van service" covering "300 miles every day" noting that some of the vans were "propane powered."

Jin's letter ends "Truly I am lucky to be still alive. Without the help of my nation, the United States, I could not have accomplished my record. I truly hope that the United States win and that it will continue to stand as the only super power of the world. Win U.S.A. win!"

Jin's letter is described and displayed here not to ridicule Jin, but display the workings of a very troubled mind in exactly the same way as was displayed to the jury. Exhibit 1 went into the jury room when they commenced their deliberations, and it was available to Lui when he penned his opinion. It is hard to look at Exhibit and not conclude (as the jury undoubtedly did) that Jin remained a long way from being restored to sanity.

It is, perhaps, equally hard not to look at Lui's opinion in the light of all the evidence presented in the trial, and conclude (as the Met News did) that Lui's opinion was calculated to serve only one purpose, to hack an election. Bravo, Appellate Justice Lui.


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