Judge Says Lawyer Lied in Trading White Aide for Black

A San Diego County Superior Court judge has accused a lawyer of attempting to gain a tactical advantage before a jury with five black members by replacing his white law clerk with his black paralegal at the defense table.

At a contempt hearing Friday, Judge Melinda J. Lasater told attorney Mark A. Wolf that she believes he lied when he said his white law clerk had a family emergency that made her unable to appear in court during a child molestation trial earlier this month. In her absence, Wolf attempted to have his black paralegal fill in.

“It is apparent to this court that you lied to me--there’s no other way to put it--and that you lied in order to obtain a tactical advantage,” Lasater said, noting for the record that the prosecutor in the case, Deputy Dist. Atty. Sharon Majors, and five of the jurors are black.

“Sometimes people use assistants for tactical reasons other than true assistance,” she said. “It is my belief that is outrageous misconduct. It is a lie. An outright lie.”

Lasater postponed her final ruling until Monday, when she will question Wolf’s law clerk about the reasons for her absence in court. If she finds Wolf to have been in contempt in court, he could be fined or sent to jail.

Wolf, meanwhile, denied that he was attempting to showcase his black paralegal, Brenda Heisser, in the hopes of manipulating the jury. Heisser, he said, had helped prepare for trial and was most qualified to fill in for his law clerk. But Lasater never allowed her to sit at the defense table.

Over and above the specifics of Wolf’s case, however, defense attorneys and civil libertarians said Friday that Lasater’s statements raise a broader question: is it inappropriate for lawyers to consider the jury’s perceptions of race, gender or other “superficial” factors when assembling a defense or prosecution team?

William M. McGuigan, a member of the San Diego Trial Lawyers Assn. board of directors and past president of the South Bay Bar Assn., said appearances do matter. For that reason, for example, defendants have a constitutionally protected right to be “dressed out” at trial in regular clothing, not jail attire, McGuigan said. Paying attention to such factors, he said, is not only appropriate, but is an essential step in the preparation of many cases.

“It’s very common. All sides do this,” McGuigan said. “The prosecution typically has an investigator sitting in (at the prosecutor’s side during trial). I assume they select them on what will appeal to a jury. It would be impossible to enforce any other standard.”

Tom Warwick, president of the 85-member Criminal Defense Lawyer’s Club, agreed.

“You can’t be blind to the dynamics of people in the courtroom,” he said Friday. “That is part of the total presentation. Unfortunately, somewhere between 60% and 80% of communication is nonverbal. To limit yourself to the 40% that is communicated in words is, in my opinion, to not use all your skills as a trial attorney.

“I don’t think you should place somebody at the counsel table just for the impact that that person’s gender or race would have on the jury. But I think you have to be conscious of the impact that your defense team will have on the jury, which includes race and gender.”

Betty Wheeler, legal director of the American Civil Liberties Union of San Diego and Imperial counties, said that, by excluding Wolf’s paralegal because of her race, Lasater herself may have been exercising racial bias.

“If, in fact, the judge denied him the use of a paralegal on his regular staff who had worked on the case in trial preparation, based on the race of that person, that would be very troubling,” she said. “It’s an absurdity to presume that, based on this woman’s race, it was somehow unfair for her to assist her employer in trial.”

Both Lasater and the prosecutor in the case refused to comment Friday, since the hearing had not been resolved.

Lasater has said that Wolf lied to her about the reason for his law clerk’s absence, pointing to an agreed-upon court schedule that said the clerk was due to be on vacation--not at a family emergency, as Wolf said.

The attorney representing Wolf in Friday’s contempt hearing, Christopher Plourd, presented a sworn affidavit Friday in which Wolf’s clerk explained that she had postponed her vacation but then decided she needed time off for personal reasons.

Wolf, whose client in the molestation case was acquitted last week, said in an interview Friday that the race of his paralegal was irrelevant to him when he sought to have her assist him.

“What was of greater concern to me strategically, frankly, was to have a female sit next to an accused child molester--to show he wasn’t a monster,” he said, adding that he found nothing inappropriate about considering that factor. “I don’t think there’s anything wrong with that--even assuming that the worst things she (the judge) thought about me were true.” When he was choosing a lawyer to represent him in the contempt hearing, for example, Wolf said, he at first took similar issues into consideration.

“I was going to have a woman attorney represent me because I thought that if somebody appeared and seemed to think I was not as low as pond scum it would be helpful,” he said. He later hired Plourd, a man.