Judge Grants Retrial but Not Over Juror Issue : Courts: The ruling cites a prosecutor’s misconduct. The jurist had been criticized for allowing a deputy district attorney to sit on the panel that convicted an Oxnard man of heroin intoxication.

A Ventura County Municipal Court judge on Friday granted a new trial in the case of an Oxnard man who was convicted of using heroin by a jury that included a county prosecutor as its foreman.

But in making his ruling, Judge Steven E. Hintz did not throw out the first trial because of the appearance of impropriety of allowing a seasoned prosecutor to sit on a jury that convicted William Lopez after 15 minutes of deliberation.

Instead, Hintz ordered a new trial “based on the misconduct of the district attorney’s office” for asking a question during the trial that violated Lopez’s constitutional rights.

By blaming what he said was “prosecutorial misconduct,” Hintz avoided reversing his decision earlier this week to refuse a new trial on the grounds that the judge should have bumped the prosecutor from the jury.

“It would appear that he was trying to blame us and cast us in a bad light,” said Michael D. Schwartz, a deputy district attorney who handled the case Friday. “We are pleased that he granted a new trial, but we disagree with the reasons the judge gave in making his ruling.”

In the unusual case, both the district attorney’s office and public defender’s office requested a new trial after learning that Deputy Dist. Atty. Terence M. Kilbride was allowed on the jury.

During the trial, on Aug. 1 and 2, Lopez acted as his own lawyer and apparently did not understand that Kilbride was a prosecutor, according to tape recordings of the trial.

Lopez, 28, had a copy of the questionnaire Kilbride filled out as a prospective juror but did not notice that Kilbride worked in the district attorney’s office, authorities said. He said he believed that Kilbride was a doctor, because Kilbride wrote “juris doctor” on the questionnaire to indicate his law school degree.

When the prosecutor in the case tried to keep Kilbride off the jury, Lopez objected, saying he wanted him on the jury because a doctor would be a good juror in the case. Hintz allowed Kilbride to sit on the panel, and Kilbride’s fellow jurors elected him foreman.

“A review of the tapes would suggest that some people would believe that the defendant didn’t know that Kilbride was a deputy district attorney,” Hintz said, “though, interviewed later, he said it didn’t matter.

“I don’t think it mattered either, because I think a jury of 12 public defenders would have convicted him given the evidence in this case,” Hintz said.

Until reviewing the tapes, Hintz said he had not realized that no one asked Kilbride in open court if he was a deputy district attorney. The judge also said he did not realize at the time that Lopez mistakenly referred to Kilbride as a doctor.

But Hintz emphasized that he was not granting a new trial because Kilbride should not have been allowed on the jury. The judge said he was ordering a new trial after listening to the prosecutor ask “plainly unconstitutional questions” designed to prejudice the jury that Lopez was guilty.

Specifically, the prosecutor asked an officer on the witness stand if Lopez had refused to waive his Miranda rights that entitle him to an attorney before answering questions, Schwartz said.

“The jury may draw the inference that he must be guilty or would have talked,” Schwartz said. Schwartz said it was clearly an error, but an unintentional one, by an inexperienced prosecutor.

In addition, he said, Hintz allowed the trial to go forward after the slip-up, after instructing the jury to disregard the question and answer.

“I should have granted a mistrial at that time,” Hintz said Friday, reflecting on his review of the tape-recorded trial.

“I realized eventually that the taxpayers’ money will be spent again in having this trial,” he said. “I intend to preclude the necessity of further appeals.”

Hintz ordered Lopez to be held in lieu of $5,000 bail. The judge scheduled the new trial for Aug. 31.

Assistant Public Defender Neil B. Quinn said he was pleased with Hintz’s ruling, although he disagreed with some things the judge said.

“He felt that the person was guilty and hated to see this redone,” Quinn said. “Despite Judge Hintz’s characterization of the evidence, we are hopeful that the outcome will be better next time.”