Judge Refuses Retrial Over Juror : Courts: Legal scholars criticize the jurist for allowing a county prosecutor to sit on the panel in a heroin case.

A Ventura County Municipal Court judge refused Wednesday to grant a new trial to a man who was convicted of heroin intoxication by a jury that had a county prosecutor as its foreman.

Judge Steven Hintz said William Lopez, 28, of Oxnard had insisted that Deputy Dist. Atty. Terence Kilbride be allowed to serve in the Aug. 1 trial, despite the prosecution’s request to excuse him.

Hintz’s refusal drew an immediate protest from Assistant Public Defender Jean Farley, who has appealed Lopez’s conviction and vowed to file a more thoroughly researched motion for a new trial.

And Dist. Atty. Michael D. Bradbury said he will work with the public defender’s office to force Hintz to set aside the verdict and grant Lopez a new trial, thereby avoiding the appearance of impropriety.

Legal scholars on Wednesday called Hintz’s action a mistake, saying the judge should have interceded and appointed a public defender when Lopez insisted on putting a prosecutor on his own jury.

And as the controversy heightened, it was revealed that Hintz allowed his wife to serve on a criminal jury that convicted a Fillmore man in June, 1989, of driving under the influence.

William Lopez was convicted Aug. 2 and sentenced to 330 days in jail for being under the influence of narcotics. He said Tuesday that he wanted Kilbride on his jury because he mistakenly believed the prosecutor was a doctor.

On Wednesday morning, Hintz heard brief arguments from Farley and from Deputy Dist. Atty. Edward F. Brodie, who supervises the county’s misdemeanor prosecutors.

Farley argued that Lopez should be retried because Kilbride was a member and foreman of the jury that convicted him.

Brodie added, “The people join in that motion.”

Hintz asked Farley what she believed was unfair about the trial, which ended Aug. 2 after only 15 minutes’ jury deliberation.

Farley’s answer was “the incredible appearance of impropriety” caused by a prosecutor sitting on a jury in a case tried by another prosecutor.

But Farley admitted that she knew of no case law that would prevent Hintz from allowing Kilbride to serve on the jury.

“The defendant has a limited knowledge about court proceedings,” Farley continued. “It is my professional belief at this point that a new trial should be granted based on the fact that a deputy district attorney sat on the trial jury.”

Brodie told Hintz, “It is my opinion that no one did anything improper in this case.” And, he added, the district attorney believes “that the public does not view this trial as containing the fairness one would expect.”

Hintz replied, “While we’re looking at this so-called appearance of impropriety, we might as well also look at reality.”

Hintz then made a 10-minute statement, saying he gave Lopez all the verbal preparation a self-represented defendant should have.

Hintz said he told Lopez that he was making a mistake by discharging the public defender, who he said “appeared only too happy to be rid of him, apparently having done no preparation in the case.”

Farley objected, saying that her office had prepared to defend Lopez.

But Hintz cut her off: “I did not invite you to speak, Ms. Farley.”

Hintz said he ordered the prosecutor not to take advantage of Lopez’s ignorance of trial law, nor to “under-try the case.” And he said he tried to convince Lopez to accept a lesser jail sentence--150 days--by agreeing to plead guilty.

When Kilbride entered the courtroom during jury selection, Hintz said, “I thought he said he was a deputy district attorney. If he did not specifically say during jury selection . . . it was written on a juror questionnaire” that Lopez was allowed to read, he said.

“No evidence has been shown to me that Mr. Kilbride did anything wrong,” Hintz said. “I did not violate my oath by allowing this trial to proceed in the fashion it did.”

At one point, Hintz held up a long strip of computer printout. “This is the defendant’s rap sheet,” he said. “It’s 3 feet long.”

Hintz then read the charges Lopez had been convicted of since 1980, which include vandalism, possessing a deadly weapon, making false statements to a police officer and several charges of being under the influence of drugs.

“I will consider this motion,” Hintz said. “It is, of course, untimely, not having been made before judgment. However, I will consider it.”

He paused for a few seconds, then said, “I have considered it. I deny it. The judgment stands.”

Farley said later, “Our position is that it was illegal as a matter of law for this district attorney to sit on the jury.”

She said of Hintz, “I don’t think his legal rulings many times are founded on legal principles that I believe exist. On the other hand, you have to follow his rulings because he is the judge in the case.”

Bradbury said he will suggest that Farley ask the presiding Municipal Court judge for an order setting aside the verdict and forcing Hintz to retry the case.

“I anticipate that if our request is granted, we’ll retry the case and convict him again, this time by a jury of his peers instead of a jury of our peers,” Bradbury said.

On Wednesday, legal experts contacted by The Times said there are no laws specifically forbidding prosecutors from serving on criminal juries.

But UCLA law professor Peter Arenella said, “It sounds more than wrong. It sounds grossly incompetent. . . . The judge’s decision to allow this prosecutor to sit on the jury was sadly mistaken.”

The district attorney’s request for a new trial “requires the judge to basically admit that he made a mistake,” Arenella said.

Other states, such as Pennsylvania and New York, forbid prosecutors to serve on juries, said UCLA law professor Julian Eule.

Eule said people who defend themselves are expected to do so without outside help, even from the judge. But he said Hintz should have stepped in to appoint a public defender when Lopez’s choice to keep Kilbride made it apparent that he was incompetent to defend himself.

Hintz’s action “creates at least an appearance of impropriety, if not outright impropriety,” said Sheldon Sloan, chairman of the Los Angeles County Bar Assn.’s judicial evaluation committee. In June, 1989, Hintz allowed his wife, Catherine Hintz, to sit on a jury in a drunk-driving case, according to court records. Jose Alfredo Betancourt, then 30, of Fillmore was convicted by that jury and sentenced by Hintz to 210 days in Ventura County Jail.