‘Trailside Killer’ Merits New Trial Due to Juror Misconduct, Judge Says

Citing juror misconduct, a judge Wednesday granted convicted “Trailside Killer” David Carpenter a new trial in the 1980 murders of five Marin County hikers.

Superior Court Judge Herbert Hoffman ruled that jury forewoman Barbara Durham, through her knowledge of Carpenter’s previous death sentence for two 1981 Santa Cruz trail slayings, deprived him of his constitutional right to a fair trial.

Hoffman, who said he was convinced “without any question” of Carpenter’s guilt, added, “Regrettably, I have to make this finding.

“This is not one that is particularly gratifying to the court. . . . This is an absolute travesty that such a result could happen in such a case,” he said.

Terrorized Bay Area

The Marin slayings, which occurred during nine weeks in late 1980, terrorized the northern San Francisco Bay area and left many popular Northern California hiking areas virtually deserted.

Hoffman said he sent a letter to both the state attorney general and the San Diego district attorney asking that Durham’s “serious juror misconduct” be reviewed for possible criminal prosecution.

The misconduct allegation arose from a March 26, 1988, dinner conversation that the jury forewoman had with two acquaintances, Michael Lustig and his then-girlfriend, Barbara Duran, at an eastern San Diego County restaurant during the 79-day trial.

Carpenter’s trial was moved to San Diego because of extensive publicity in Northern California.

During a hearing on the misconduct matter earlier this year, Lustig and Duran each 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.”

Appeal Filed

Lustig later told his attorney about Durham’s comments, and the attorney passed the information along to Carpenter’s lawyers. Both Barbara Durham and her husband, Ron, who also was at the dinner, denied that she made such a statement.

Marin County Deputy Dist. Atty. John Posey immediately filed an appeal of Hoffman’s ruling.

The two Marin County public defenders who represented Carpenter during the San Diego trial and a 1984 change-of-venue trial in Los Angeles said they respected Hoffman’s courage in making the ruling.

“This is not a popular decision in San Diego or in Marin County, but that’s what being a judge is about--making hard decisions as required by law,” said Stephen Berlin.

After weighing various rulings by the U. S. Supreme Court and other courts regarding how trial errors might affect verdicts, Hoffman said he determined that “despite the strength of the prosecution’s case, every defendant is entitled to a verdict by 12 fair and impartial jurors.”

“That’s what this whole system is about--not 11 impartial jurors, not 9, but 12,” the judge said.