Lawsuits Challenge Use of Deputies as Bailiffs : Law: At issue is whether jurors are likely to give unfair weight to the officers’ testimony because they wear the same uniform as the courtroom aides.

It is an improbable alliance: The staid Los Angeles County Municipal Court Judges Assn. and criminal defendant Frank Espinoza.

Espinoza, who is accused of running a brothel, and the judges have found themselves on the same side of a thorny issue that intersects politics, law enforcement and the judiciary, and whose outcome could have far-reaching implications for how California courts are run.

Both are suing separately to prevent sheriff’s deputies from acting as bailiffs in courtrooms, duties they recently took on in municipal courts when county supervisors dissolved the Marshal’s Office in a cost-cutting measure.

A key issue is whether jurors are likely to give unfair weight to the testimony of sheriff’s deputies because they wear the same uniform as the bailiff. Because jurors often develop friendly relationships with their bailiffs, are they inclined to be prejudiced against defendants?

“Bailiffs run errands for jurors, they bring them coffee, tell them where to go for lunch. They establish an ongoing rapport that the jurors might apply toward a witness,” said Municipal Judge Francis A. Gately, chairman of the judge’s association.

The judges have a hearing today in their lawsuit. In the meantime, Espinoza and his lawyer have made some progress in their case.

Attorney Roger Jon Diamond raised the issue of juror bias when he sued to have sheriff’s deputies disqualified from serving as bailiffs in Espinoza’s criminal case. The key witnesses against Espinoza are sheriff’s deputies, and Diamond contends that other deputies’ presence as bailiffs could damage his client.

*

In a surprise to many legal experts, a state appeals court in Los Angeles decided that Espinoza’s case raised provocative constitutional issues and agreed to hear a challenge to the use of sheriff’s deputies as bailiffs. Besides acting as a liaison for the jury, bailiffs act as security guards in courtrooms.

A ruling in favor of Espinoza could have ramifications beyond the municipal courts. In Los Angeles County, sheriff’s deputies have always served as bailiffs in superior courts.

The judges association decided last week to take the unprecedented step of filing a supporting brief in Espinoza’s criminal case. And the county, which is going to court today seeking to have the judges’ lawsuit thrown out, is scrambling to prepare arguments against Espinoza.

Meanwhile, Diamond is crowing. “You ask any defense lawyer and they will tell you that, subconsciously, the bailiff roots for the prosecution. But nobody has ever protested before now.”

Well, actually, Diamond has. Twenty years ago the Santa Monica attorney represented Espinoza’s brother, who was charged in a Norwalk shooting. He was convicted in the case in which sheriff’s deputies testified as witnesses. Diamond appealed, charging that the bailiff had sought to sway the jury to the prosecution’s side. The conviction was overturned, but not on that point, Diamond said.

But this new case has him excited.

“It’s the perfect test case because most of the witnesses for the prosecution are deputy sheriffs; they investigated the case, they did surveillance, they arrested him. The credibility of the entire case is at issue,” he said.

The judges view Diamond’s case as a pretty good one as well.

“It’s really a better case than ours because he actually has a person who will be affected,” Gately said.

Others find the notion far-fetched.

What little court precedent there is dates mostly from the 19th and early 20th centuries, when sheriffs rode horses and organized posses to round up lawbreakers. In those days they also were charged with rounding up jurors, and a body of law developed that disqualified deputies from being witnesses in certain cases.

Prominent jury consultant Jo-Ellan Dimitrius said the potential influence of bailiffs on the subconscious mind of jurors requires statistical survey and analysis. No one has done it. But she believes that jurors nowadays may be more likely to show bias against law enforcement witnesses, regardless of what uniform the bailiff wears.

“I have found in the last two to three years, juries are becoming much more distrustful, with law enforcement folk viewed in the public eye as not being on the up and up,” she said. “I don’t think that because the bailiff and the witness are from the same branch of law enforcement, that witness will automatically get any more attention. If anything they face an uphill battle.”

In any case, a county attorney questions the judges’ interest in the issue.

“It’s an issue whose heritage is rather recent, arising almost simultaneously with the decision to consolidate the sheriff’s and marshal’s function,” said Gordon Trask, who is defending the Board of Supervisors in the judge’s lawsuit. “I would be interested to know if the (judges) who are now crying what a serious issue this is ever raised a challenge on behalf of their clients when they were attorneys.”

In fact, the bias issue is a minor point in the judges’ lawsuit. Their main argument is that supervisors infringed on their rights as a separate branch of government when they disbanded the Marshal’s Office. The non-investigatory agency was controlled by the judiciary and served the judges for 43 years.

*

The judges argue that they have no authority over the sheriff and thus less control over how their courts are run. And they contend that court duties will not be a high priority among sheriff’s deputies who, in all probability, joined the force to apprehend criminals, not baby-sit juries.

“Marshals were specifically trained to be marshals and were in court because they wanted to serve as bailiffs, whereas deputy sheriffs signed up to be cops and bailiff service is a necessary hardship for them,” said Judge Albin I. Niles, presiding judge of Los Angeles Municipal Courts.

“I think marshals are more ‘user-friendly.’ They treat people who come to court more courteously, and that reflects on judges. At a time when the public is losing confidence in the court system we have to do all we can to change that,” Niles said.

Many superior court judges, even though they have formed close working relationships with their deputy sheriff bailiffs, seem to agree with Niles. An association of superior court judges joined in opposition to the disbanding of the Marshal’s Office, though they declined to join the municipal court judges lawsuit.

Sheriff Sherman Block contends that the municipal court judges are upset because they suffered an embarrassing rebuff when the supervisors shut down the Marshal’s Office.

“The judges in the courtroom are very powerful people in actuality, or certainly in their own minds,” he said. “They see this as an attack on their power and authority in court.”

Block insists that deputy sheriffs are providing the same level of service the marshals did and that there have been very few complaints.

The Espinoza case is poised to overshadow the political skirmish between the judges and the county.

“The appeals court is taking this seriously, so we have to take it seriously too,” Trask said. “But I don’t think they are going to rule that deputy sheriffs can’t act as bailiffs.”

Oral arguments before the 2nd District Court of Appeal are set for June 15.