Defense attorneys should have polled jury after verdict, experts say
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A decision not to poll the jurors after Wednesday’s verdict in the Bell corruption trial might prove to be an important mistake by the defendants’ attorneys, experts indicated.
Judge Kathleen Kennedy has ordered the jury back into deliberations over undecided counts, but not before one juror sent a note Thursday expressing doubt over the guilty verdicts handed down the day before.
‘It is better to be certain beyond a reasonable doubt to give a verdict of guilty than send someone innocent to prosecution,’ the juror wrote.
But on Wednesday -- after receiving a similar juror note -- Kennedy said, ‘That’s done, we’re not going to reopen verdicts that have been reached.’
When lawyers for the ex-councilmembers raised concerns over the jurors’ note Wednesday, Kennedy was quick to point out that attorneys had opted not to poll the jury after the verdict was read, which would have allowed them to individually state how they voted.
Legal expert Dimitry Gorin, a criminal defense attorney, said he makes it a practice to always poll the jury because of the possibility that a juror might change their mind.
“It’s surprising they passed on that here,” Gorin said.
Robert Sheahen, a veteran Los Angeles criminal defense attorney, said he does it as a matter of routine.
Gorin said the late developments in the Bell trial and verdicts is out of the ordinary.
“Questions from the jury as a collective aren’t unusual, but individual questions are rare and what is happening here is highly unusual and unique,” Gorin said.
Other experts agreed.
‘I have never heard of anything like this in my 40 years of law,’ Sheahen said. ‘What is going on now is nothing short of bizarre. To go back and ask to reexamine verdicts doesn’t happen.’
However, as puzzling as the behavior might be, experts said it was extremely unlikely the jury would be allowed to go back on their decision.
Gerald F. Uelmen, a Santa Clara University School of Law criminal law professor who was part of the O.J. Simpson defense ‘dream team,’ said the ‘verdict is final once returned and rendered.’ DOCUMENT: Read the charges
‘One juror changing their mind afterward doesn’t make any difference because the verdict was returned,’ he said.
Uelmen, who was also a lawyer in the Pentagon Papers case, said defense attorneys could try to pursue an inquiry into the jury deliberations.
‘They will be looking to see if there was any coercion and will probably file motions for a new trial,’ he said. ‘But the bottom line is the jury reached its decision.’
Laurie Levenson, a former prosecutor and Loyola Law School professor, said defense attorneys may believe it is grounds for an appeal. But if there is no jury misconduct, ‘second thoughts just aren’t enough to challenge the verdicts.
‘Second thoughts aren’t legal grounds to overturn a verdict once a verdict is rendered,’ she said. ‘That is kind of it.’
To overturn the verdicts, she said, the council members would need to show actual misconduct in the jury room, such as use of outside information.
‘Many jurors have second thoughts after a verdict, but don’t usually express them,’ she added. Kennedy on Thursday ordered the jury to continue deliberating their deadlock on 42 charges against the so-called Bell 6, former City Council members accused of stealing public money through bloated salaries.
‘Your honor, after you asked us yesterday to go back into the deliberation room, I had time to think until now,’ the note began.
‘I have been debating in my own mind that due to the pressure and stress of the deliberation process, the jury may have given an improper verdict of guilty on the Solid Waste Authority,’ the juror continued. ‘It is better to be certain beyond a reasonable doubt to give a verdict of guilty than send someone innocent to prosecution. If possible, I request to remain anonymous.’
Ex-Mayor Oscar Hernandez, and ex-council members George Cole, Victor Bello, Teresa Jacobo and George Mirabal were convicted on multiple felony counts related to money they received for sitting on the Solid Waste and Recycling Authority. But they were acquitted on charges related to their pay from the Public Finance Authority.
The sixth defendant, former Councilman Luis Artiga, was acquitted of all the charges he faced.
— Richard Winton and Kate Mather