NEWS ANALYSIS : Legal Experts Affirm Rare Dismissal of Denny Juror : Trial: Judge’s careful decision-making process put him within the limits of judicial discretion, scholars say.

Despite concerns that Judge John W. Ouderkirk may have improperly encroached on the sanctity of the jury room in the Reginald O. Denny beating case, experts agree there are strong legal grounds for defending his decision to dismiss a juror for failing to deliberate.

There is a powerful tradition in the American judicial system of protecting jury deliberations. But there are few legal standards by which to judge the competence of jurors and, as a result, judges have been given wide latitude to determine their fitness to deliberate.

In the Denny case, legal scholars said it appears that the careful process Ouderkirk employed in coming to his decision placed him within the limits of judicial discretion when he removed a panel member on Monday, despite defense charges that he had overstepped his authority.

“The dismissal looks bad, and having to do it mars the seemliness of the trial,” said Southwestern University law professor Robert Pugsley. “But Ouderkirk didn’t even come remotely close to abuse of discretion.”

Loyola University law professor Laurie Levenson said appeals courts have given the benefit of the doubt to the trial judge.

The reason is that the appellate courts have held that the trial judge is in the best position to evaluate a juror’s abilities.

In the often subtle and complex determinations of a juror’s bias or incompetence, the trial judge can see the behavior and demeanor of a juror, whereas the appellate courts can only read transcripts, she said.

“We’re not there. We can’t observe demeanor. We can’t determine credibility,” Levenson said. “It’s the trial judge who looks the jury in the eye and sees them every day.”

The case of the dismissed juror in the Denny beating trial, known only as Juror 373, largely hinges on her own testimony and that of three other jurors.

In transcripts of closed hearings released Thursday, the other panelists described 373 as forgetful, obsessive and incoherent.

“We have all been trying to figure out exactly what is going on in her mind, so I really don’t know what she is doing, if she is pondering or way off in the twilight zone or exactly what she is,” said the jury forewoman. “And I am not trying to be facetious or sarcastic, I just don’t think she is all up there.”

Juror 373, on the other hand, saw herself as the only careful juror on the panel and described the others as “lay people” who were rushing through complex issues without any real understanding.

“I can’t stay back there and fight with them because it’s too hard on me, it really is,” Juror 373 said. “And I just can’t, in good conscience, see it go like this. I mean I really cannot. They’re not getting a fair trial. I am telling you right up, they’re not.”

While experts have scoured the transcripts of the dismissal hearing for signs of mental illness or incompetence, there are few overt signs.

Instead, a simple reading of the transcript shows the woman clearly answering the judge’s questions and explaining her concern about the other jurors’ refusal to study the complex legal issues.

Ouderkirk was thus confronted with two radically differing visions of 373--studious and careful on the one hand, neurotic and oblivious to deliberations on the other.

Ultimately, he had to decide who was believable. He sided with the other jurors.

The higher courts repeatedly have found that, except where there are clear factual errors or abuses of discretion, judges have the authority to make their own decisions on the credibility of a juror’s testimony.

In one case, justices of the Court of Appeal wrote: “Many cases have considered the exercise of this trial court discretion. Few have found abuse.”

Levenson said Ouderkirk also bolstered his position by interviewing several jurors in the presence of all attorneys involved in the case, demonstrating that he made an informed and reasoned decision.

But the process that Ouderkirk went through before dismissing Juror 373 does have some problems, according Southwestern University’s Pugsley.

For example, Ouderkirk refused repeated requests by defense attorneys that he specifically ask the juror whether she had serious problems remembering things.

“It’s very strange and unexplicable why he refused to go to the root of the problem,” Pugsley said.

In addition, although Ouderkirk said that Juror 373 was “failing to deliberate,” at the time of the hearing, the jury, including Juror 373, already had reached verdicts on two counts. (The verdicts were thrown out when she was replaced, forcing the jury to begin its deliberations anew.)

“He kept saying that she couldn’t reach decisions and yet she managed to reach two decision in the case,” said James Lafferty, executive director of the National Lawyers Guild chapter in Los Angeles.

Perhaps most problematic for Ouderkirk should the issue be appealed is Juror 373’s own testimony. The transcripts do not show her to be forgetful, as the other jurors claim. She answers Ouderkirk’s questions, although the other jurors say that she is often unresponsive.

How a higher court might view her testimony is uncertain since there are few legal standards defining competency for a juror.

In the history of the state, there apparently is only one case that has been reviewed by the Court of Appeal that involves juror disqualification based on “inability to recall or reason properly.”

Just as in the Denny beating trial, the controversy began with a complaint from the jury foreman during deliberations in a Los Angeles County armed robbery case.

“Basically, we have had a member of the jury who has been, it is difficult to put, uncooperative, argumentative, doesn’t appear to the other 11 jurors to be reasonable or using good abilities to reason,” the foreman wrote. “He seems to argue every point that we bring up.”

In response to questions from the judge, the juror rambled about an issue that was apparently irrelevant to the trial. The juror was soon dismissed by the judge, who decided the juror was incapable of understanding the case.

The Court of Appeal, in an officially unpublished decision, agreed with the judge.

But in dissent, Justice Earl Johnson Jr. wrote: “It is no accident this is the first case in California where a juror’s disqualification has been justified on his inability to recall or reason properly. We embark on a dangerous quest when we seek to dismiss a juror on grounds his memory is not perfect or his reasoning ability below average.”

“Legalistically, this is a vacuum,” said Charles L. Lindner, a Santa Monica attorney and past president of the Los Angeles Criminal Courts Bar Assn.

James Lafferty, executive director of the Los Angeles chapter of the National Lawyers Guild, said he believes it is no accident that there are so few cases dealing with juror incompetence.

“There is a good reason there is no case law on this,” he said. “Judges and everyone else have traditionally treated jury deliberations as sacrosanct. The law hasn’t been refined because it hasn’t had to refine itself.”