Judge Balks at Death Sentence : Courts: Valencia man’s convicted killer is ordered to face a second trial to determine if he should be executed.

Angering prosecutors, jurors and the victim’s family, a judge Thursday refused to hand down a death sentence and ordered a second trial to determine if a parolee should be executed for murdering a Valencia man.

Further surprising everyone involved in the case, Van Nuys Superior Court Judge Leon Kaplan said he would not preside over the new trial “in light of the personal attacks” made by a prosecutor in court.

Kaplan’s ruling does not affect Scott Forrest Collins’ first-degree murder conviction in the Jan. 23, 1992, death of Fred D. Rose, but a new jury will have to be selected to determine if Collins should be executed or spend the rest of his life in prison.

Prosecutors vowed to appeal Kaplan’s decision, which voided a Nov. 2 jury verdict that recommended the death penalty for the killer.

“I am absolutely furious,” said Sharon Rose, wife of the slain construction worker. “I think he (Kaplan) is the most horrible person I know of.”

In capital cases such as Collins’ trial, a jury first determines if the defendant is guilty. Then the panel reassembles for a “penalty phase” and makes a formal sentencing recommendation to a judge.

Kaplan, who was handling his first death penalty case, granted a defense motion for a new penalty phase trial, ruling that the jury improperly conducted an experiment during deliberations. Using a protractor and string, one juror argued that Rose must have been on his knees when Collins pumped a bullet into the back of his head.

“The improper consideration of evidence did affect the jury’s decision,” Kaplan said.

The judge also said the prosecution stepped out of bounds during a closing argument that asked for vengeance and indicated that the Rose family wanted Collins to be executed. Appeals court rulings prohibit prosecutors from telling a jury that a victim’s family wants a convicted killer to be put to death.

Defense attorney Bruce Hill said he supported the decision. “I had argued that the prosecution presentation was an appeal to certain basic emotional values, which makes an objective determination very difficult,” Hill said.

Juror Betty Cole, a Sunland resident who attended what she thought would be a sentencing hearing, said the experiment only substantiated a coroner’s report detailing Rose’s injuries, and “it didn’t matter” that Rose may have been on his knees when he was shot.

“We only wanted to bring justice,” Cole said.

“This is, in my opinion, an outrage,” Deputy Dist. Atty. Lea Purwin D’Agostino said. “Do you know how difficult it is for people to reach a verdict of death? You had 12 fair, impartial jurors who came to an unbelievably difficult decision, and they came to that unanimously, and we are now throwing their decision out the window.”

D’Agostino said in court that Kaplan was twisting and torturing facts to justify a decision that was actually based “on this court’s personal beliefs.”

Explaining her comments outside court, D’Agostino charged that Kaplan could not hand down a death sentence because he is philosophically opposed to capital punishment.

“I have received information from various sources that, when he was first assigned this trial, that he did express reservations about sitting on a death penalty case,” D’Agostino said outside court. If this was known, the prosecutor said, she would have had the trial moved to another court.

Outside his courtroom, Kaplan declined to comment on the case, and he refused to outline his position on capital punishment.

Defense attorney Bruce Hill said he was not aware of Kaplan’s position on the death penalty.

While he has never seen a judge recuse himself for being attacked by an attorney, Hill said it appears to be an appropriate decision in this case because “the criticism that was leveled at (Kaplan) was certainly not something that was quiet or hidden in any way.” The defense attorney theorized Kaplan removed himself to ensure fairness to the prosecution.

Sharon Rose hopes to see another jury sometime soon return a verdict in favor of the death penalty.

“I want to be sitting in the front row when it happens,” she said. “I’ll see if they will let me put my finger on the button.”

Collins is due to appear in court April 21 for scheduling a date for his new trial.