Deputy Dist. Atty. Wayne Mayer will be retried next month on a petty theft charge, the state attorney general's office said Tuesday.
Jurors deadlocked, 9-3, in favor of conviction Monday after two days of deliberations in the first theft trial in memory in which a San Diego County prosecutor was the defendant.
Mayer, 41, is accused of stealing a power saw and drill from a pickup truck parked at DeAnza Cove on June 14. He testified last week that stress from his participation in the retrial of Sagon Penn had driven him to drink so heavily that he could not recall taking the tools.
In a brief proceeding early Tuesday, San Diego Municipal Judge Robert Stahl ordered Mayer to appear Oct. 7 for retrial.
Deputy Atty. Gen. John Swan, whose office prosecuted Mayer after the district attorney's office disqualified itself, said Tuesday that the results of the first trial indicated there was a good chance that Mayer could be convicted in a retrial.
"Nine-three means nine people felt he was guilty and felt that way from the very beginning," he said.
Swan said he would have the advantage in a retrial of having heard Mayer's defense and having watched him testify. "They don't have to put on the same witnesses," he said. "But we certainly know more than we did before the first trial."
Mayer's defense attorney, Peter Hughes, rejected the notion that the prosecution would have an edge in the retrial.
"I don't think it gets any better for the prosecution as time goes on," Hughes said. "Plus, I know at least three of the people were listening to and accepting what I had to say. I don't think they're ever going to find 12 people who will see it differently."
Drinking Key to Defense
Mayer's defense was built on the contention that his drinking left him incapable of having formed the intent to commit a crime when he took the tools belonging to Robert Pospisil, a San Diego plumber. Jurors said the hold-outs for acquittal were not convinced that Mayer had exhibited criminal intent.
Hughes said his greatest concern about a retrial was the additional stress Mayer would face. Besides admitting to a drinking problem, Mayer testified about domestic tensions because of his wife's friendship with San Diego Police Agent Donovan Jacobs, a controversial prosecution witness in the Penn case, and his own "doubts" about Jacobs.
"Laying the most personal things in your own domestic life out in open court is a very difficult thing," Hughes said. "Looking at the prospect of having to go through that again is very difficult for him and very difficult for me."
But Hughes said it was "not very likely" that a plea bargain could be reached that would make a retrial unnecessary.
'At an Impasse'
"I think we're at an impasse," he said. "I don't see where the case is negotiable."
The case is Mayer's second scrape with the law. He was charged in 1982 with stealing a fishing rod from a drugstore and was placed on probation after pleading no contest to a lesser charge of trespassing. Mayer never told his supervisors in the district attorney's office about the earlier case and he did not identify himself to the arresting officer as a deputy district attorney.
A 10-year veteran of the district attorney's office, Mayer is on paid leave from his $65,000-a-year job pending the outcome of his case.