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February 15, 2005

BING CROSBY'S MANAGERS LOSE DISCOVERY ROW
Documents in Case Over Royalties Are Not Confidential

By Hudson Sangree
Daily Journal Staff Writer
SAN FRANCISCO - Ruling in a legal battle over Bing Crosby's music royalties, the California Supreme Court said Monday that an organization set up to handle the business affairs of the late crooner cannot claim the attorney-client privilege Crosby enjoyed with his lawyers.

Overruling a state appeal court, the justices unanimously said Crosby's attorney-client privilege expired once his estate was settled and did not extend to HLC Properties, the successor to Bing Crosby Enterprises, an informal business group that managed the singer's financial empire. HLC Properties v. Superior Court, S120332.

Crosby's estate, consisting not only of music but also of mining, oil and real estate interests, was estimated at between $40 million and $60 million when he died in 1977.

HLC derives its moniker from the Tacoma, Wash., native's given name: Harry Lillis Crosby.

The move by the high court presumably brings to a close a discovery battle over 59 written communications that Crosby's heirs had fought to withhold from lawyers for Universal Music Group in a dispute over Crosby's recording contracts and royalty payments.

The heirs had contended that HLC could withhold the documents as privileged communications.

Los Angeles Superior Court Judge Terry Friedman ruled that HLC could not claim to hold the attorney-client privilege with respect to the 59 documents, but the 2nd District Court of Appeal sided with Crosby's heirs, declaring the documents were protected.

The Supreme Court overturned the 2nd District's decision.

"[T]he Evidence Code unmistakably provides that the attorney-client privilege belongs only to the client, whether the client is a natural person or a business entity, and the record here amply supports the trial court's determination that Crosby, not Enterprises, was the original client and holder of the privilege with respect to the 59 withheld documents," wrote Justice Marvin Baxter in an opinion signed by the high court's six other justices.

"Under these circumstances," Baxter wrote, "the Evidence Code compels us to find that, when Crosby died, his privilege transferred to the executor of his estate and thereafter ceased to exist upon the executor's discharge."

Attorneys for Crosby's heirs could not be reached for comment.

Universal's lawyer said the Supreme Court reached the right result.

"We're very pleased with the decision," said Steven Marenberg, a partner with Irell & Manella in Los Angeles who argued the case before the Supreme Court. "We thought all along that the trial court was correct and are pleased the Supreme Court has vindicated the judge's ruling."

Marenberg said he expects the plaintiffs in the case will soon turn over the 59 contested documents, and that the documents "will show our interpretations of the contracts are correct."

Crosby's heirs claim Universal owes them as much as $16 million because it underpaid royalties on the singer's records made before 1949.

The earlier recordings, made with Decca Records, fell under an agreement by which Crosby received 15 percent of the wholesale price. A later agreement gave him 7 percent of retail sales.

"The original contract dealt with 78 rpm shellac records," said Marenberg. "It was entered into before LPs were invented. The question of how to deal with the LPs came into existence in the early 1950s. It was not so much that the contract was renegotiated as the parties figured out how to deal with LPs."

Crosby's heirs have argued he should still be getting 15 percent of the wholesale on the earlier records. Universal maintains that the heirs are entitled only to the 7 percent of retail.

"That's what we paid to Crosby since the early 1960s, including the last 17 years of his life when he was around," said Marenberg. "He certainly didn't voice any objections."

The appeal turned on whether Crosby had managed his business as an individual or whether he had set up an organization to manage his affairs - and whether that organization held the attorney-client privilege.

Universal had argued before the appellate court that the attorney-client privilege died with Crosby.

But the 2nd District decided that the business staff the singer assembled to manage his affairs, under the heading Bing Crosby Enterprises, qualified as a business organization and that it retained his attorney privilege after his death. Bing Crosby Enterprises' successor, HLC Properties, retained the privilege and could keep the attorney communications confidential, said the appeal court justices.

"Bing Crosby Enterprises and subsequently HLC actually have engaged in business activities, and have not simply been repositories of the remaining assets of Crosby's estate," Justice Richard Mosk wrote for the panel. "Therefore, HLC became the holder of Bing Crosby Enterprises' privilege."

The Supreme Court on Monday strongly disagreed.

"[T]he validity of HLC's claim that it holds the attorney-client privilege as Enterprises' successor depends on whether Enterprises itself, as opposed to Crosby or any other of its supposed individual members, was the original client and privilege holder with respect to the 59 written communications at issue," Baxter wrote.

"Here," he continued, "the trial court found that Crosby, the natural person, not Enterprises or any other business organization, was the client who sought the legal advice reflected in the 59 documents. As a reviewing court, we may not disturb the trial court's finding if there is any substantial evidence to support it."

Posted 3:00 PM by Howard Bashman

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February 14, 2005

MINISTER CAN SUE CHURCH FOR HARASSMENT

By John Roemer
Daily Journal Staff Writer
SAN FRANCISCO - The 9th U.S. Circuit Court of Appeals resembled a conclave of squabbling bishops as it quarreled over church-state separation in upholding one minister's right to sue another for sexual harassment.

So many judges took varied positions on the issue of en banc review that it recalled one of those angels-on-the-head-of-a-pin debates.

The upshot Friday was a green light for Monica McDowell Elvig, a Seattle-area ordained minister, to proceed with claims that Pastor Will Ackles sexually harassed, intimidated and retaliated against her at Calvin Presbyterian Church in the North Puget Sound region. Elvig v. Calvin Presbyterian Church, 2005 DJDAR 1759.

Not an Employment Decision
The court's plurality said that despite its decision, the so-called ministerial exception to the First Amendment continues to protect churches' employment decisions from the secular society's civil rights statutes.

The court's dissenters, like the Anabaptists of the Middle Ages who refused to accept the legitimacy of the state church, feared a breach in the legal dike shielding religion from government.

En Banc Hearing Denied
To reach their fractious holding, the judges produced an order denying a rehearing of last year's split decision favoring Elvig. It came complete with two concurrences and three dissents. In all, nine of the circuit's judges had something to say.

For instance, Circuit Judge Carlos Bea, joined by Andrew J. Kleinfeld, warned in his dissent that letting ministers sue one another would lead to endless civil court intrusions into religious conflicts as litigious attorneys turn every stone.

Some Offer Warnings
"Should the jury hear the practices of employers of other Presbyterian ministers?" Bea wondered. "Or should Episcopalian, Methodist and Unitarian practices be considered?

"Should the jury consider the Catholic practices for parish priests, or should practices for specific orders such as Jesuits, Franciscans, Augustinians, Dominicans and Opus Dei also be considered?"

In a footnote Bea observed of the Dominicans, "If memory serves, these were the original Inquisitors of the Holy Office."

Kleinfeld wrote in a separate dissent, "For the one of every five Americans who live in our circuit's jurisdiction, the 'wall of separation' between church and state now has a gate. The gate is one-way. The government may pass through to regulate the internal affairs of a church, but the church must remain on its own side.

"If King Henry II had lived in the 9th Circuit, he would have won his struggle with Thomas Becket, Archbishop of Canterbury, without having to insinuate 'Will no one rid me of this turbulent priest?' to incite his knights to murder."

Circuit Judges Diarmuid F. O'Scannlain, Connie M. Callahan and Bea signed that protest.

The concurrence that attracted the most signatures argued that the dissenters were needlessly alarmist and that the constitutional wall remains rock-solid.

It pointed out that the circuit has already decided the question in an earlier case, Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (1999).

The ministerial exception to employment rights spelled out in Title VII of the Civil Rights Act of 1964 protects the church's right to choose ministers and to assign them duties.

"For example," wrote Circuit Judge William A. Fletcher, "the ministerial exception permits the Catholic Church to restrict the priesthood to men, and permits a church to prescribe the duties of a minister, free from scrutiny under Title VII."

So last year's panel decision disallowed Elvig from seeking damages on two claims she'd asserted: that she'd been fired and that she'd been prevented from getting hired as a minister at other churches. Those, the panel held, were consequences of the church's protected employment decisions.

"On the other hand," the panel majority ruled in an opinion by Circuit Judge Raymond C. Fisher, "Elvig may recover for emotional distress and reputational harm caused by the sexual harassment itself - or by retaliatory harassment - because such harassment implicates ... decisions the ministerial exception does not protect." Elvig v. Calvin Presbyterian Church, 375 F.3d 951 (2004).

"I write to emphasize," announced Fletcher in his concurrence, "that the rule announced in Bollard and applied in this case is consistent with the constitutional underpinnings of the ministerial exception, and that every court that has addressed a minister's ability to recover damages for sexual harassment has reached the same conclusion we have."

Circuit Judges Alex Kozinski, Susan P. Graber and Fisher joined in that concurrence.

Judith A. Lonnquist, representing Elvig, and Elizabeth K. Reeve, the church's lawyer, could not be reached for comment. Both are from Seattle.

The Northwest Women's Law Center of Seattle and Presbyterian Church Synod of Alaska Northwest filed amicus curiae briefs in the case.

Posted 2:44 PM by Howard Bashman

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February 09, 2005

9TH CIRCUIT, TEN COMMANDMENTS
A Lawyer Sues Over What He Sees as a Religious Symbol in The Court's Seal

By Peter Blumberg
Daily Journal Staff Writer
SAN FRANCISCO - The highest court in the West suddenly has been drawn into the fray over public displays of the Ten Commandments in a new lawsuit that objects to the court's official seal.

Unlike the brouhaha over the Alabama chief justice's 5,300-pound granite monument to the Ten Commandments, the complaint against the 9th U.S. Circuit Court of Appeals focuses on 10 undecipherable squiggles that accompany the lady of justice depicted in the court's seal.

The complaint was brought to U.S. District Court in San Francisco by a 26-year-old lawyer from Pleasanton who claims the Ten Commandments have no place on government documents and wants them removed.

Ryan C. Donlon, 1-1/2 years out of law school and filing pro per, wrote that the symbolism in the seal has "no secular purpose" and violates the constitutionally required separation of church and state by "advancing religion."

The seal used on the court's stationery and other documents was derived from a mosaic in the 9th Circuit's century-old courthouse, which is adorned throughout with elegant artwork and stone carvings.

Court officials kept their lips sealed Tuesday, citing standard policy with pending litigation. But Donlon explained himself in a brief phone interview.

"It's to enforce my civil rights and what I believe is the clear meaning of the First Amendment, which is that no law should be made respecting the establishment of religion," he said.

He said he was uncomfortable talking about his case with the news media while at work because the suit has no connection to his firm, McNichols, Randick, O'Dea & Tooliatos, where he practices commercial litigation.

"The firm has absolutely nothing to do with it," he said. "I'm not doing this for media attention."

The firm proudly proclaims on its Web site: "These aren't your typical lawyers."

Others were skeptical of Donlon's suit, including the lawyer who persuaded the 9th Circuit in 2002 that the words "under God" in the Pledge of Allegiance amounted to a government endorsement of religion.

"I'm not impressed," said Michael Newdow, the Sacramento atheist-doctor-lawyer who ultimately lost his challenge before the U.S. Supreme Court but is still fighting the issue on other fronts. After examining the seal and the markings in question, he said: "It could be the Bill of Rights. I don't know what the heck that is."

Newdow said Donlon appears to be hostile toward religion.

"You look at that seal and you don't get the sense that someone is pushing religion," he said. "It's not the same as putting up a giant monument out of nowhere."

In June 2003, the 11th Circuit rejected a challenge to the Ten Commandments in a Georgia county court's seal.

"The question presented is whether the use of a court clerk's seal violates the Establishment Clause of the First Amendment when the seal contains an outline of the Ten Commandments, a sword, and the name of the court and is used solely to authenticate documents," the court held. 'We conclude that it does not."

Two Ten Commandments cases are pending before the U.S. Supreme Court.

Legal historians said Tuesday they have no doubt that the depiction in the 9th Circuit seal of a seated woman in robes flanked by stone tablets marked with 10 lines is, indeed, a generic reference to the Ten Commandments. The date on the seal is 1856.

"In the 19th century it was common for lawyers to say their laws could be traced to the Ten Commandments and that their law came from God in a way that is not popular today," said Chris Waldrep, a San Francisco State University professor of history.

As for the seal, he said, "It's hard to imagine what else it could be."

But Waldrep said it's "mischievous" to assert that this imagery is "forcing religion on anybody."

"How many millions of people have encountered that seal and never had a thought about it?" he said.

A Yale law professor who is an expert on the history of legal iconography said the tablets depicting the Ten Commandments, just like the sword and the scales, are well-accepted across cultures as symbols of law.

"The work the logo is doing is trying to say, 'We're a place of law,'" Judith Resnik said. "Does it have a religious history? Sure. It's a reference to the Judeo-Christian tradition of law-giving through the Ten Commandments."

But Resnik emphasized that the 9th Circuit seal is different from Alabama Chief Justice Roy Moore's public display of a monument engraved with the text of a specific version of the Ten Commandments.

"Buildings in many parts of the world that have courts in them, from Renaissance town halls to 21st century courthouses, attempt to announce themselves as courthouses with images or icons that symbolize the law," she said.

The case has been assigned to Magistrate Judge Elizabeth D. Laporte. Donlon v. U.S.A., 05-0536.

Posted 2:00 PM by Howard Bashman

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February 04, 2005

VIEWS ON JUSTICE BROWN ILLUSTRATE GREAT POLITICAL DIVIDE
Justice Brown's Opinions Give Partisans Plenty of Ammunition

By Peter Blumberg
Daily Journal Staff Writer
SAN FRANCISCO - The state's highest ranking black judge sent a loud and clear message this week to other black women and minorities: Don't look to Janice Rogers Brown for special protection against discrimination.

In two opinions Monday, the California Supreme Court justice told Oakland residents they are better off without a local ordinance that shields them from predatory banking practices and better off without case law that guards them against being kicked off criminal juries by prosecutors biased against black women.

Whether that's good or bad depends who's talking -- fans who would love to see Brown elevated by President Bush to one of the nation's highest federal courts, or detractors who hope her nomination dies in partisan gridlock.

To her supporters, Brown has once again shown that her jurisprudence transcends ideology, that she strives to reach the just result regardless of political correctness.

"Those who do not like the outcomes for policy or political reasons can have no serious complaint that she has not fairly considered the law, and it would be sheer caricature, to simple-mindedly label these cases anti-consumer or anti-minority," said Douglas Kmiec, a Pepperdine University law professor. "In truth, they vindicate the consumer protections of the state and bolster the constitutional demand of fairness regardless of color or gender. Not bad for a day's work."

To her critics, Brown's latest rulings are further proof that she's out of touch with the obstacles that ethnic minorities face trying to get a fair shake, whether it's mortgages for their homes or a seat on a death penalty jury.

"I just found her opinions very dismaying," said longtime civil rights lawyer Eva Paterson, director of the Equal Justice Society. "I understand her as a radical right conservative, but I don't understand her as a black woman. It just pains my heart to hear those words coming from a black woman."

Here's what the fuss is about:

In a challenge to Oakland's landmark 2001 ordinance meant to protect poor and elderly homeowners from high-cost predatory lending, Brown sided on Monday with the banking industry's position that local governments are pre-empted by less stringent state regulations.

Writing for the court's majority in a 4-3 ruling, Brown said "severe regulation of sub-prime lending" might drive lenders out of the state and end up hurting those the legislation was intended to help.

But according to supporters of the ordinance, including several civil rights groups that filed amicus briefs on Oakland's behalf, the state regulations aren't tough enough to discourage unscrupulous lenders from taking advantage of poor and elderly people and immigrants, most of whom happen to be black and Hispanic.

Brown's other opinion -- a solo concurrence appended to a death penalty affirmance -- cast doubt on a 20-year-old Supreme Court precedent from an Oakland murder case that put prosecutors on notice not to discriminate against black women while picking juries.

Brown said it's fine to recognize race and gender as protected groups, as the court first did in 1978, but she warned that merging categories to create new cross-groups (black women) without a demonstrated need perpetuates stereotyping and undermines the fairness of jury selection.

However, according to lawyers familiar with the court's unanimous 1985 decision in question, it was well known then that prosecutors singled out black women for peremptory challenges based on a fear that they would harbor sympathy toward black male defendants.

In a friendly reading of Monday's opinions, Brown comes across as a model of judicial restraint who interprets the scope of the state's banking laws without trying to rewrite them and who, in the death penalty case, voices thoughtful insights for reform.

Kmiec said Brown's finding in American Financial Services v. City of Oakland that state law pre-empts local regulation puts her somewhat at odds with the U.S. Supreme Court's fondness for decentralization of power.

"It is no more appropriate to chastise Justice Brown for failing to support the liberal cure to predatory lending behavior than it is to challenge her for writing contrary to a conservative federalism trend," he said.

But to her foes, Brown is a result-oriented judge who used Monday's cases to advance the same pro-business and anti-social justice agenda that courses through many of her rulings.

"I believe it is inappropriate for a person with an anti-consumer philosophy to proclaim they are helping consumers when there's not one consumer group that supports her position," said Bob Gnaizda, legal director of the Greenlining Institute, a liberal advocacy group.

In Gnaizda's view, Brown's willingness to buck federalist theory had nothing to do with courage and everything to do with promoting deregulation, that is, the notion that government should not interfere with the free market.

"The Federalist Society favors states' rights except when business interests oppose it," he said.

Friends and foes also part ways over how to interpret Brown's take on jury discrimination.

UCLA law professor Eugene Volokh said it's "perfectly sensible" for Brown to worry that obsessive attention to racial-gender diversity gets in the way of selecting juries fairly and efficiently.

"It's quite mainstream and logical, and it's a mistake to view it as laden with deep racial or sexual politics," he said.

But to prominent Oakland civil rights lawyer John Burris, who says jury-selection discrimination against black women was still rampant in the 1980s, Brown seems to have gone out of her way to pretend the problem never existed.

"It sounds to me like this opinion was written not for us, but for Washington anti-affirmative action conservatives," he said. "She went way beyond what was necessary."

While Monday's opinions are only two data points in Brown's decade-long tenure as a judge, they are sure to be seized upon in the nation's bitterly divided capital by partisans intent on painting Brown as a hero or a villain.

"Justice Brown's rulings in these cases clearly belie the notion that she bases her decisions on politics, rather than the law," Kmiec said. "If President Bush needed greater reason to consider Justice Brown not just for the D.C. Circuit [court of appeals], but for the U.S. Supreme Court, he need not look further than the quality of thought in these cases."

Opponents say Brown couldn't have picked a worse moment in her career, with action on her stalled nomination anticipated any time now, to define herself as an enemy of minorities.

"Most consumers and most minorities consider Janice Rogers Brown to be a Clarence Thomas, not a Thurgood Marshall," Gnaizda said. "The opposition has intensified, and this [predatory lending] ruling certainly isn't going to help her before the Senate Judiciary Committee."

Posted 2:05 PM by Howard Bashman

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© 2005 The Daily Journal Corporation.
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February 01, 2005

BROWN QUESTIONS PRECEDENT ON RACE, JURORS
The justice says the court created a stereotype by trying to protect black women from discrimination.


By Peter Blumberg
Daily Journal Staff Writer
SAN FRANCISCO - The sole black woman on the California Supreme Court said Monday that the court may have erred 20 years ago when it put attorneys on special notice not to discriminate against black women during jury selection.

Justice Janice Rogers Brown expressed doubt that her predecessors on the state's high court had enough factual evidence in 1985 to recognize black women as a distinct group, seven years after the court held that prosecutors cannot exclude jurors based on race or gender.

Writing separately from her colleagues in rejecting a death penalty appeal, Brown said the court may have done more harm than good by concluding that there are enough similarities among black women, as opposed to just black people or just women, that anyone would target them to keep them off juries.

"The invidious effect of our holding in [People v. Motton, 39 Cal.3d 596 (1985)] is that the law now memorializes a pernicious stereotype it is trying to combat, and it does so without anyone even establishing, as a factual matter, that the stereotype preexisted our holding," she wrote in a five-page concurrence. "In this way, we created the stereotype, pretending to destroy it."

Brown's reflections on an old case, while peripheral to Monday's unanimous affirmance of a 1990 death sentence, added new fuel to a festering debate in Alameda County over recent allegations that prosecutors routinely kept black women and Jews off capital murder juries in the 1980s and early 1990s to better their chances of winning death sentences.

The issue first drew public attention last summer, when a former Alameda County deputy district attorney asserted in a sworn declaration that discrimination was standard practice in picking juries during that era.

The deputy, John R. Quatman, who left the office in 1998 after a 25-year tenure and moved to Montana, sparked an ongoing Supreme Court inquiry by alleging that a Jewish superior court judge, Stanley Golde, now deceased, privately advised Quatman to dismiss Jewish prospective jurors at the start of a 1987 death penalty trial. Quatman has refused to talk to the news media.

"What's happened is not that the court is stereotyping people," Berkeley defense attorney Wes Van Winkle said Monday, reacting to Brown's comments. "The problem is that the Alameda County district attorney's office is stereotyping people."

In the 1985 case, as in the one decided by the court Monday, an Alameda County black male defendant alleged that a prosecutor used peremptory challenges to purposefully exclude black women from sitting on the jury.

In 1978, California was the first state in the nation to outlaw the dismissal of prospective jurors based primarily on their race or gender, a longstanding, common tactic used particularly by prosecutors to weed out jurors who might be sympathetic to the defense. People v. Wheeler, 22 Cal.3d 258.

Seven years later, the court applied the same principles in overturning the conviction of Edward Motton for second-degree murder. Both at trial and on appeal, Motton's attorneys alleged that the Alameda County prosecutor who picked the jury deliberately excluded black people.

The high court agreed, holding that in jurisdictions where black people constitute a "significant" part of the local population, black women should be considered a separate, "cognizable group" protected under Wheeler. (The court was forced to modify its ruling to reflect that one black woman had been left on Motton's jury after the court mistakenly described the jury as all-white.)

The court's holding in Motton provided the foundation for a Los Angeles appellate court in 2001 to prohibit the singling out of black male jurors - another case criticized Monday by Brown.

"Our cases applying Wheeler are so expansive in their definition of cognizable group that the possibilities are literally endless," she wrote. "Despite our justifiable enthusiasm to include all community perspectives in the judicial process, we must also recognize at some point this principle clashes with the more fundamental purpose of selecting a fair and impartial jury."

Brown did not take issue with the Wheeler ruling's underlying purpose of protecting against group discrimination in jury selection. Rather, she voiced doubts about establishing a cross-category that mixed race and gender based on an untested assumption that "being a Black woman is different from being Black and being a woman."

"I would not reject, as a matter of law, the possibility that Black women might be the victims of a unique type of group discrimination justifying their designation as a cognizable group, but I see no evidentiary basis in Motton for us to have made a judicial finding to that effect, binding in all jury selection proceedings, and I see no evidentiary basis in [today's] case either," she wrote.

Brown's summary of the case law did not mention a 1993 Alameda County murder case in which the prosecutor, a black man, later admitted in a newspaper interview that he was especially wary of young, obese black women because he'd been "burned" by one and they were "dangerous." Even with the newspaper interview included in the court record, a federal judge rejected the defendant's appeal in 1997, saying he wasn't persuaded that Deputy District Attorney William Tingle had engaged in improper discrimination.

Brown, who was appointed to the court in 1996 by Republican Gov. Pete Wilson, is known for her conservative philosophy. She has occasionally rankled groups that advocate for civil rights, who accuse her of pandering to the political right by ruling against the interests of black people and women.

Her nomination to the U.S. Circuit of Appeals for the D.C. Circuit is pending confirmation by the U.S. Senate.

Harry Traback, the prosecutor accused of stacking the jury in Motton case and now in private practice, could not be reached Monday. The defense attorney who won the case, Neil Rosenbaum, declined to comment.

In Monday's case, defendant Robert Young, convicted of two 1989 drug-related murders in Oakland, complained that all three black women who were questioned during voir dire were removed from his jury by the prosecutor's peremptory challenges.

The prosecutor, Ted Landswick, has been accused of discriminating against black women and Jews in two other death penalty cases in the early 1990s, according to appeals pending before the high court. Landswick was taken off the office's capital murder prosecution unit in 1994 after he was overheard uttering a racial slur during a break in a trial. He has repeatedly refused requests for interviews.

In Monday's majority opinion, also written by Brown, the court refused to consider whether Landswick exhibited a pattern of discrimination.

The court concluded that the trial judge in Young's case properly dismissed his trial attorney's Wheeler motion for lack of strong enough proof that Landswick's motives were discriminatory.

The deputy attorney general handling the case, Bruce Ortega, said he was gratified that the state court upheld Young's death sentence.

"But I also realize it's just the first step in a long process," he said.

Van Winkle, who represents Young, said the court gave short shrift to the weak justifications Landswick offered when he was questioned by the trial judge about his dismissal of the three black women.

Landswick told the judge he had doubts about one woman, a counselor who had served as an expert witness for Alameda County prosecutors, because he learned from colleagues that she tended to exaggerate her credentials. His reason for dismissing another black woman, he first told the judge, was that she was pregnant.

Brown's summary of the record did not mention the proneness to exaggeration or the pregnancy, but she wrote that there may have been other reasonable explanations why Landswick didn't want these women on the jury, including the possibility that their occupations biased them in favor of the defense.

Van Winkle said Monday that it's too easy for the court to come up with reasons after the fact to rationalize a prosecutor's use of peremptory strikes.

"The mere fact that we can come along later and come up with some excuse is ducking a real constitutional problem," he said. "Landswick himself was not able to come up with any good reasons for dismissing these jurors."

Van Winkle said Brown's perspective on the Wheeler cross categories is almost beside the point because the other six justices refused to sign onto it.

But Alameda County District Attorney Tom Orloff said he found the concurring opinion "interesting," although he declined to elaborate in much detail.

"She's saying maybe we shouldn't establish all these categories without having some empirical evidence," he said. "It's something that ought to be discussed."

As for whether the ruling as a whole vindicates the district attorney's office against charges of bigotry in jury selection, Orloff said it speaks for itself.

"I'm looking at each case individually," he said.