San Diego Jurors who had spent eight days hearing a medical malpractice case were stunned when it was declared a mistrial February 28. All 15 jurors told the plaintiff's attorneys that they would have found the physician responsible for the death of a child during delivery, according to a lawyer who polled them. Four hours after the mistrial was declared, 10 of the jurors submitted sworn affidavits declaring that superior court Judge S. Charles Wickersham repeatedly scratched the back of the defense counsel, former district attorney Paul Pfingst, while kicking the backsides of plaintiff's lawyers, Nancy Sussman and Julie Parker.
Sussman has filed to have Wickersham removed from any retrial of the case, Leticia Lopez vs. Dr. James Schaefer, et al. Also, Sussman has filed complaints with the California Commission on Judicial Performance and the city attorney's office. Among her many complaints -- also mentioned by jurors in their affidavits -- was that Wickersham yelled at her in the presence of the jury, thus prejudicing her client's case, and also slept during the trial.
On Tuesday, Wickersham recused himself from the case, although denying all of Sussman's allegations of his misconduct. Wickersham noted that the most serious allegation was that he "colluded with counsel for the defendant in granting a motion for mistrial." The judge noted that the allegations have "created a substantial doubt" on his capacity to be impartial.
Both Sussman and Parker smell a rat. They say that on the day of the mistrial declaration, Pfingst showed up as one of the attorneys for the city manager's office in the battle between the pension board and City Attorney Michael Aguirre. Wickersham happens to be a friend of Mayor Dick Murphy. Last fall, the judge was randomly selected by computer to hear one of the election suits involving Murphy. Citing a "personal relationship" with Murphy, Wickersham recused himself. Later, all the superior court judges were recused.
On the same day that the jurors registered their complaints, Pfingst, now with establishment law firm of Higgs Fletcher & Mack, wrote to Sussman, denouncing her statements to jurors and others. "You have made false and unsupportable accusations against both Judge Wickersham and myself..." Pfingst wrote. "I demand that you cease making any additional defamatory statements or I will be required to take legal action. Furthermore, I demand that you provide a retraction to each person to whom you have published the defamation and provide proof of the retraction. It is my intent to bring this matter to the attention of the state bar."
Pfingst's letter "is a violation of the ethical conduct code," says Parker. "You can't threaten" an opposing attorney who is reporting alleged misconduct, she says.
After Wickersham declared the surprising mistrial around 11:00 a.m. February 28, Parker and Sussman took the 15 jurors to the presiding judge, who refused to speak with the jurors. After a delay of four hours, the two lawyers questioned 10 of the jurors under oath.
Juror Ryan Sullivan called the mistrial "a great injustice" and the Wickersham/Pfingst relationship a "good old boys club. The process of a fair and equal justice system in Judge Wickersham's courtroom was never present. I'm scared for every citizen of this great country to think that fairness and equality have no role in our justice system."
Juror Judith Macander said, "The judge was clearly in favor of the defendant's attorney and biased towards the plaintiff's attorneys."
Dennis Fagan said of Wickersham, "He repeatedly belittled Ms. Sussman and Ms. Parker" and raised his voice to them, while "he showed unusual deference [and] courtesy to defense attorney Paul Pfingst. I feel very strongly that something strange was going on between Judge Wickersham and Paul Pfingst throughout the duration of this trial."
Joyce Floyd echoed those words: "I believe the judge and Mr. Pfingst had something going on together, and that's why there was a mistrial."
Patty Totina said, "I felt like Judge Wickersham had almost, like, a good old boy relationship with Mr. Pfingst and made that evident in his conversations with him and his rulings during the proceedings."
Glenn Rosbrook sensed "a disposition on the part of the judge which favored the defendant and was biased against the plaintiff."
"The judge was somewhat enamored by having Mr. Pfingst in the courtroom, being a celebrity," said Dave Grosch, complaining that "no justice was done" for Lopez.
Rand Power said Wickersham "seemed to give these two ladies [the plaintiff's attorneys] a bad time whenever they wanted to speak, and he seemed to shield Mr. Pfingst from having any problems."
"Mrs. Lopez, the plaintiff, was not given a fair trial," said Michael Olpin.
"Judge Wickersham clearly showed preferential treatment for Mr. Pfingst and a bias against Ms. Parker and Ms. Sussman," said Cedric Tabuena. "My opinion was that the evidence was clearly in favor of the plaintiff."
Several of the jurors said under oath that Wickersham slept at some points during the trial. Sussman said, in her official statements of disqualification of Wickersham, "Judge Wickersham has fallen asleep during the plaintiff's case in chief. I have seen him do so at least four times in which his head nodded back."
Richard Verlasky, a neutral attorney in the courtroom, said he was "completely floored" to learn of the mistrial. He believed the jury was going to come back with a judgment favorable to the plaintiff. He did mention that Wickersham told him Sussman had difficulty framing questions "and jumped from subject to subject."
I interviewed some others who were in the courtroom. Dr. Walter Coulson, a retired professor of pathology from the University of California at Los Angeles, was to testify for the plaintiff on February 28. "It seemed to me that the entire proceedings over two hours were almost as if it had been somehow previously rehearsed," said Coulson. "At least the judge knew what the outcome would be but went through the two hours, making points for a mistrial, and perhaps against a mistrial, but always marching forward to a final verdict of a mistrial. It was almost as if he were acting."
Warren Parr, who was asked to visit the court by Sussman, said, "What struck me most was the judge's incompetence. It was just stunning to me. He spent two hours contradicting himself. He said he was uncomfortable with the trial; if he let it continue, something bad was going to happen."
Pfingst asked for the mistrial. On February 28, he said that throughout the case, "Plaintiff's counsel has repeatedly and unceasingly asked improper questions." This caused him to object numerous times, giving jurors the impression he was "trying to hide something." He claimed that the plaintiff's lawyers were trying to insert impermissible evidence. They attempted "trial by ambush" by introducing the topic of a type of baby heart rhythm, which his client said was caused by anemia.
But Sussman and Parker rebutted that it was the defendant who had introduced this topic. They then put an expert witness on the stand who said that this abnormal rhythm was not caused by anemia but by lack of oxygen. They accuse Pfingst of "egregious misconduct" and said he had introduced impermissible hearsay evidence.
At one point in the trial, the defendant had been asked a question about previous medical procedural errors he had made. Pfingst had not objected to the question. Pfingst later said, "I'm not an ob/gyn" and admitted he didn't know about the topic. "I told the court at this time I don't know anything about this," Pfingst had said in court. "I am learning about it for the first time." Sussman and Parker, who both specialize in such litigation, claimed ignorance is no defense.
After much sound and fury, as well as confusion, Wickersham granted the mistrial, admitting that he had made errors during the case.
In an interview, Pfingst defended Wickersham. "He was not sleeping on the bench," said the former district attorney. Wickersham "was incredibly patient with Sussman as she asked a series of objectionable questions that a first-year law student would know were objectionable." Wickersham did not return a call for comment.
The jurors favored the plaintiff because "we hadn't gotten to the defense case," Pfingst said. He claimed his letter to Sussman was not threatening. "I'm just giving her an opportunity to withdraw the statements. People say things in the heat of the moment." Pfingst said he can't remember whether he worked on that pension-related case later that day.
"The jury saw right through Pfingst," said Parker in an interview. "You can only keep that veneer of falsehood so long. All he said was smoke and mirrors. We had a unanimous decision going. The reason a mistrial was called was that Nancy and I made [Pfingst] look stupid." She calls the mistrial "a legal Mulligan" -- an errant golf shot that is re-hit without a taking a penalty.
Sussman said Wickersham's motivation seemed to be: "Let's get Mr. Pfingst out of this any way I can."