Carpenter Could Get New Trial : Judge Finds Jury Misconduct in Trailside Killings Case

A judge’s finding Wednesday of jury misconduct during David J. Carpenter’s trial and conviction in five Northern California trailside killings could lead to a new trial for the San Francisco man.

Despite the finding, Superior Court Judge Herbert Hoffman took no immediate action regarding the verdict against Carpenter last May in San Diego and the subsequent death penalty sentence for the 1980 park killings in Marin County.

Hoffman gave Marin County prosecutors until May 1 to file papers on why the misconduct should not result in a new trial for Carpenter, 58.

Defense attorneys were given until May 22 to file their replies and then both sides will come back to court June 1 to argue their respective positions.

Three-Month Hearing

The judge’s ruling followed a hearing stretched over three months involving allegations that jury forewoman Barbara Durham of Julian improperly knew that Carpenter already had been sentenced to death for two similar 1981 killings in Santa Cruz County.

“I’m confident my decision is a correct one, but it does not please me,” Hoffman said. “I think we need to proceed very carefully because I am absolutely convinced the evidence, beyond a shadow of a doubt, shows Mr. Carpenter is guilty.

“Whether this juror misconduct is something that will overturn this conviction is something we’ll have to decide.”

The judge apologized to victims’ relatives who traveled to San Diego to sit through Carpenter’s trial after it was moved on a change of venue motion because of extensive publicity about the case in Northern California.

Judicial System Isn’t Perfect

“This has to be something that is going to be devastating to them,” Hoffman said of the potential for a retrial. “Our judicial system is the best in the world, but it’s not perfect.”

Besides seeking a retrial, the motion filed by Carpenter’s attorneys asks that the death penalty imposed on him last year be vacated.

During the hearing on the defense motion, two acquaintances of Durham testified that she indicated in a dinner conversation that she had knowledge of Carpenter’s role in the Santa Cruz killings. The conversation occurred last March, midway through Carpenter’s six-month trial, as Durham and her husband dined with the two at an eastern San Diego County restaurant.

Defense attorneys contend that left her unable to impartially consider the evidence because of Hoffman’s pretrial ruling, which barred jurors from knowing about Carpenter’s previous conviction and death sentence in the Santa Cruz aspects of case.

Michael Lustig, a San Diego businessman, and his former girlfriend, Barbara Duran, both quoted Durham as saying: “I’m not supposed to know this, but the defendant has been convicted of doing the same thing in another county and has been sentenced to death.”

Durham denied she made such a statement.

‘Memory Was Selective’

Hoffman said, however, that Durham appeared extremely nervous when she took the stand to respond to the allegations and added that he felt her “memory was selective.”

The judge said he would leave it up to the San Diego County district attorney’s office to decide whether criminal charges should be filed because of the alleged jury misconduct.

During closing arguments Tuesday, Marin County Deputy Dist. Atty. John Posey questioned why Lustig took several months to tell anyone about Durham’s purported statement. He claimed Lustig was trying to throw a “monkey wrench” into the system.

Marin County Public Defender Stephen Berlin suggested that Lustig waited as long as he did because of concern that he would be viewed as someone who helped a convicted murderer get away with his crimes and the financial repercussions that might have on his business.

“He’s intelligent, a man of principle . . . (and) someone concerned with the rules of the game,” Berlin told Hoffman.

The judge agreed with Berlin, saying he found Lustig to be a “complex personality but a credible witness.”

“There is no reward for Mr. Lustig, given the general public’s feeling about this case. If he wanted publicity, it would have been easier to come straight out instead of using an attorney,” Hoffman said.