Oprah Interview as Truth Commission – Part II: What Counts as Success?

LESLEY WEXLER

In this second of a series of columns, Illinois Law professor Lesley C. Wexler continues analogizing Oprah’s interview with Meghan and Harry to a truth commission and describes some goals against which we might measure the success of a truth commission. Professor Wexler proposes such measures as (1) whether the commission finishes its mandate and widely disseminates its findings, (2) whether it establishes a definitive narrative of the relevant abuses, and (3) whether it serves as catharsis for individual victims. She suggests that although some initial facts on the ground are negative, reform and reconciliation are still possible.

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Supreme Court Rules that Claims of Nazi-Era Expropriation of Jewish Property Are Barred by Germany’s Sovereign Immunity

SAMUEL ESTREICHER, JULIAN KU

NYU Law professor Samuel Estreicher and Hofstra Law professor Julian G. Ku comment on a recent decision by the U.S. Supreme Court, holding that the doctrine of sovereign immunity bars claims based on Nazi-era expropriation of Jewish property. Professors Estreicher and Ku argue that the unanimous decision in that case, Germany v. Philipp reflects a now-solid trend of Roberts Court decisions limiting the reach of U.S. law and jurisdiction to stay within the territory of the United States while also avoiding controversial and unsettled interpretations of international law.

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Curtis v. Superior Court of Los Angeles County

Docket: B292967(Second Appellate District)

Opinion Date: March 24, 2021

Judge: Feuer

Areas of Law: Civil Procedure, Legal Ethics

The identity of plaintiff's nontestifying expert is not entitled to absolute work product protection because it is not "a writing" that would reveal his "impressions, conclusions, opinions, or legal research or theories." However, if an attorney can show that disclosure of the identity of a nontestifying expert would result in opposing counsel taking undue advantage of the attorney's industry or efforts or impair the attorney's ability to prepare and investigate a case, the identity may be entitled to protection under the qualified work product privilege. In that case, the identity is only discoverable if the party seeking discovery can establish that "denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice." Plaintiff, an attorney and third-party witness in the underlying action, appeals from an order granting the motion of the California Employment Lawyers Association (CELA) to compel him to provide deposition testimony identifying a nontestifying expert whom plaintiff consulted in prior litigation. In the underlying action, CELA alleges an unknown CELA member (Doe 1) sent plaintiff, a non-member, information received from a members-only email distribution list in violation of a confidentiality agreement. The Court of Appeal concluded that the identity of Doe 1 is entitled to at most qualified attorney work product protection, and the trial court did not abuse its discretion in finding CELA met its burden to demonstrate denial of disclosure would unfairly prejudice CELA in prosecuting the action and only minimally disadvantage plaintiff. The court agreed with CELA that plaintiff has appealed from a nonappealable discovery order, but the court treated plaintiff's appeal as a petition for writ of mandate. Therefore, the court dismissed the appeal and denied the petition.

People v. Moine

Docket: B303013(Second Appellate District)

Opinion Date: March 24, 2021

Judge: Federman

Areas of Law: Criminal Law

After a jury convicted defendant of two counts of making criminal threats in violation of Penal Code section 422, subdivision (a), the trial court suspended imposition of sentence and placed him on probation for five years. On appeal, defendant argues that his conviction must be reversed, claiming the denial of mental health diversion and the wholesale exclusion of the psychiatrist's testimony was erroneous and prejudicial. In the published portion of this opinion, the Court of Appeal held that the trial court abused its discretion in finding that defendant posed an unreasonable risk of danger to public safety. Therefore, the court reversed and remanded the matter with instructions for the trial court to conduct a new hearing to consider defendant's eligibility for mental health diversion. The court noted that, in the event defendant is again found ineligible for diversion, the trial court may conduct a new trial on the criminal threats charges.

People v. Southard

Docket: A157236(First Appellate District)

Opinion Date: March 24, 2021

Judge: Richman

Areas of Law: Criminal Law

On December 18, officers stopped a pickup truck that was driving at about 35 miles per hour in a 55 mile per hour zone, while straddling the white line. Southard emerged and ran; officers tased and arrested Southard. On December 25, Southard and his minor son were passengers in a car driven by Bonde that was stopped because the license plate lights were not working. Officer Krueger recognized Southard and was aware of the December 18 incident. Bonde’s license came back as suspended but Krueger did not cite him. Krueger requested backup. Southard refused orders to exit the car and was verbally aggressive. After several bites by a police dog and strikes with an officer’s baton, three officers tased Southard and pulled him out of the car. Southard was convicted of seven counts of obstructing a peace officer and forcible resistance of an officer—charges that require the People to prove the officers were acting lawfully—and one misdemeanor count of possession of methamphetamine. The court of appeal reversed. The trial court committed prejudicial error when it gave a special instruction based on language from an appellate opinion that acted to remove the lawful performance element of the resisting charges and gave CALCRIM No. 250 that acted to remove the knowledge element of the charged offenses. The court “reminded” trial courts of the danger of instructing a jury with language from an opinion that has nothing to do with jury instructions.