Second Mistrial for Judge Accused of Drunk Driving

All but one of the jurors in the latest drunk-driving trial of Los Angeles Municipal Judge Edward L. Davenport said last week that they would ask the district attorney’s office to charge him again despite two mistrials.

The jury on Wednesday deadlocked at an 11-1 vote to convict Davenport, 64, a former prosecutor whose arguments in a 1966 case before the U.S. Supreme Court helped set the standards for trying drunk-driving cases.

In the first trial, held in January, the vote was 10-1 to convict, with the 12th juror undecided.

Deputy Dist. Atty. Katherine Mader agreed with the jurors that the case was still worth pursuing.

“I want to try this forever,” she said.

If Mader’s superiors agree that the case is worth prosecuting a third time, she will appear before Beverly Hills Municipal Judge Charles G. Rubin on Monday for him to determine whether there will be another trial.

It has been an unusually costly prosecution for a misdemeanor. Altogether, the two Davenport trials consumed all or part of 23 days of court time. Court officials estimated that the cost of trying a case is about $3,000 a day, a figure that does not include time spent on the case by police officers or by lawyers and investigators for the district attorney’s office.

Rubin noted that drunk-driving cases generally do not last longer than three days.

“It would be a travesty of justice if this isn’t retried,” one juror said after the 2 1/2-week trial ended in a hung jury despite two days of what she described as “frustrating, very frustrating” deliberations.

She and other jury members asked to remain anonymous, citing an order from Judge Rubin to refrain from public discussion of the case.

“It was cut and dried except that (Davenport) had a fancy defense lawyer,” another juror said. “If you got 12 reasonable people in a room there’s no way they couldn’t find him guilty.”

The holdout juror, a 28-year-old auto parts salesman, said that apparent inconsistencies in testimony by Beverly Hills police officers convinced him that the case against Davenport was trumped up.

“They didn’t know how to judge distance, they couldn’t figure out what cell he was in. Somebody screwed up his lines,” the holdout juror said.

Despite rancorous arguments--one juror said he was tempted to hold the dissenting juror up against a wall “and just beat him” because his objections seemed inconsequential--the defiant juror held his ground.

If convicted of drunk driving and an additional charge of refusal to take a blood-alcohol test, Davenport could have faced a 48-hour jail sentence.

“We’re lucky we have a jury system,” Davenport said after the verdict. “At least we had one bright juror.”

Throughout the case, Mader argued that Davenport used his legal expertise to undermine possible prosecution after he rear-ended another car at a six-way intersection in Beverly Hills on the night of May 1, 1991.

Calling him a “grown-up bully” who was used to getting his way, she pointed to a series of actions by the judge--from his failure to complete field sobriety tests to the dumping of a sample jar of urine into a toilet--as proof of “consciousness of guilt.”

She also called in judges and attorneys who saw Davenport drinking at a meeting of the Old Bailey legal society earlier that night, motorists and nearby residents who witnessed the collision, and police officers and jailers who dealt with him after the accident.

All of them described a man whose behavior ranged from “tipsy” to “staggering.”

Defense attorney Jacob Adajian, however, presented as witnesses judges and attorneys who said that Davenport was not under the influence of alcohol. He admitted having consumed three drinks of VO whiskey and water at the gathering.

Adajian contended that the police and jailers who testified were sticking together to protect their “thin blue line. . . . They’re lying here because they botched the arrest of a person. Forget that he’s a judge--he could have been a plumber that night. And then three hours later, when they filled out their reports, they tried to make it look good.”

Adajian urged jurors to think of themselves as “a chorus of soloists,” any one of whom would still be “singing beautifully” even if out of tune with the others.

Taking the stand on his own behalf, Davenport said that he threw away the sample jar of urine at the West Hollywood Sheriff’s Station because he had not been given a chance to void his bladder first, as required by law.

But police, including a specialist in making drunk-driving arrests, insisted that they followed the letter of the law. They described the judge as glassy-eyed, slurred of speech and reeking of alcohol.

Davenport also said that he refused to take any field sobriety tests because of inner ear and back problems that would have made it impossible to follow the instructions of the police.

But the arresting officers said that he only refused to cooperate further after he failed an initial effort to walk a straight line.

The arrest was processed in West Hollywood because the Beverly Hills jail was under construction at the time.

Davenport, a North Hollywood resident who plans to retire this summer after 24 years on the bench, was a senior deputy in the Los Angeles city attorney’s office when he argued the case of Schmerber vs. California before the U.S. Supreme Court.

In that case, the high court agreed with his contention that police are justified in taking blood samples from drunk-driving suspects against their will.