S.D. Convair Shootings End in Hung Jury

In yet another high-profile San Diego case to produce a hung jury, Robert Earl Mack’s trial on charges of shooting two General Dynamics Convair Division officials ended Friday with a jury “hopelessly deadlocked” on charges of murder and attempted murder.

After seven days of tense deliberations marked by what one juror described as racial comments, the San Diego Superior Court jury split, 6 to 6, on a charge that Mack, who had worked at Convair for 24 years, murdered a company labor negotiator. The jury deadlocked, 8 to 4 for conviction, on a charge that Mack tried to murder his former supervisor.

“Tempers definitely flared,” the sole black juror said of the deliberations.

Judge Richard M. Murphy declared a mistrial, saying, “Sometimes, this is the way the system works.”

Prosecutors painted the Jan. 24 shootings as a cold-blooded attack, simple revenge for the layoff notice that company officials had sent Mack the week before. Deputy Dist. Atty. Robert W. Sickels said he was “disappointed” and promised that prosecutors would be ready for a second trial, which Judge Richard M. Murphy set for Sept. 11.

Mack, 43, is charged with the murder of Michael Konz, 25, and the attempted murder of James T. English, 52, both shot in the head after a grievance hearing at the Convair plant. Konz was a management labor supervisor. English was Mack’s supervisor.

Mack, who smiled and nodded his head up and down as the deadlock was announced, said at the trial that he understood he had shot both men. He testified that he intended only to kill himself in a ritualistic suicide at Convair, intending to dramatize his layoff. But, he said, he blacked out just before the shooting rampage and recalls nothing about the attack.

Mack, who for most of the pretrial proceedings had pleaded not guilty by reason of insanity, withdrew that plea shortly before the trial and contended during the trial that he was simply not guilty. A conviction could have brought him life in prison. He remains in the downtown County Jail, held without bail.

The blackout, Mack testified, was prompted by a “big old orange blur that shot through my head.” He also testified that he had the sensation during the shootings of riding a big, black cat.

“To us,” said juror Robert Payne, 50, “the defense did a better job than the prosecution.” Prosecutors simply did not rebut Mack’s claims with “hard evidence,” Payne said, and that led to the deadlock.

The case marked the latest in a long string of riveting San Diego Superior Court trials that, dating back to the mid-1980s, have produced a jury hung on some or all charges. Each case focused on an emotionally charged issue.

With former Mayor Roger Hedgecock, it was campaign financing. With Sagon Penn, it was racial tension. With Craig Peyer it was police wrongdoing. With Elisabeth Anne (Betty) Broderick, it was divorce.

Two other recent San Diego cases--in federal, not state, court--followed a similar pattern, yielding a hung jury on some or most counts. With Nancy Hoover Hunter, it was scandalous wealth. With Richard T. Silberman, it was drugs.

Mack’s defense attorney, J. Michael Roake, portrayed Mack at the trial as the victim of a corporate downturn, as a loyal blue-collar worker let go by company managers more concerned with the bottom line than with the human costs of a layoff.

During his closing argument, Roake said to the jury: “Human beings are expendable for the corporation.”

Deputy Dist. Atty. Robert W. Sickels, the prosecutor in the case, said Friday that was nonsense.

“I don’t think corporate America had anything to do with the case,” Sickels said. “This was clearly, as I’ve indicated, a case where (Mack) elected to murder two people, was successful once and almost successful the second time.”

Repeatedly during the trial, Sickels returned to that straightforward theme, hammering at the sequence of events: Mack shot and wounded English. Then Mack chased, shot and killed Konz.

Roake said Friday, “A jury’s job is to sort out muddles. And the inconclusiveness of this, the fact that we have a hung jury, shows that there still is a question of whether Mr. Mack went there to commit suicide or went there to kill.”

After two weeks of testimony, jurors got the case last week. On Monday, foreman David Vanegas, a high school teacher, sent a note saying that jurors had agreed two crimes had been committed but were unable to agree on the “degree of guilt.”

On Thursday, Vanegas passed another note, this one saying the panel remained at an impasse. On Friday, he sent one last note, saying, “We still feel that we remain deadlocked.”

Six jurors voted to convict Mack of first-degree murder in Konz’s death. The other six voted “not guilty of first-degree murder,” according to a poll of all 12 jurors taken in open court.

The panel actually had four options for the murder count--first-degree murder, second-degree murder, voluntary manslaughter and involuntary manslaughter.

Unable to resolve the deadlock on first-degree murder, it never formally considered the other options, Payne said.

Eight of the 12 jurors voted to convict Mack of the attempted murder of English.

“Anger and impulse,” said Payne, offering an explanation for Mack’s conduct. Payne voted to find Mack not guilty of either of the charges against him.

Angry comments flew about the jury room, too. Payne, the only black on the jury, said the deliberations were punctuated by “a lot of racial comments, a lot of anger.”

He said, “I was in a very uneasy position. I felt bad. I felt like there should have been someone black other than myself (on the jury). You don’t know the blows I took.” He declined to elaborate.

Payne, who is unemployed, stressed that all 12 jurors felt Mack had committed crimes but could not decide exactly what to label them.

“In my heart, he has to pay for that crime,” Payne told English’s wife, Charlotte English, 55, and English’s sister, Jacque Fowler, 40, on the steps of the downtown courthouse minutes after jurors were excused from the case.

“I really mean this,” Payne told the two women. “I’m sorry for both of you.”

Charlotte English said she was “frustrated” by the mistrial, which she called “painful.”

She said: “I feel like I’ve been victimized twice. This is really hard to understand, how the jury could not reach a verdict, since two people were executed in the back of the head.”

Leaving the courthouse, Jacque Fowler vowed “to see this thing through.”

“If it takes 10 trials, we’ll sit through 10 trials,” she said. “We want justice.”