‘3 Strikes’ Law Causes Juror Unease in O.C.

Juror Lloyd Handy had no trouble convicting a Tustin woman of taking a $5 cut in a cocaine deal. But he was never told his verdict would send the chronic drug user to prison for life under the “three strikes” law.

Now, he wishes he had held out for a mistrial rather than imprison somebody for life for committing a nonviolent crime.

“I felt deceived by the court,” said Handy, a retired Marine. “They should have let us know this was a ‘three strikes’ case. I’m a firm believer in ‘Don’t do the crime if you can’t do the time,’ but this was just ridiculous.”

Other jurors in similar cases feel the same way. And nearly a year after “three strikes” became state law, some Orange County defense attorneys are wondering whether jurors should be made aware of a defendant’s background before handing down a verdict.

“There is a strong argument for fully informed juries, allowing the community to decide whether the crime fits the punishment,” said Deputy Public Defender Joel Garson.

Yet Garson and others agree that such an argument has pitfalls, especially in conservative Orange County.

“It’s basically asking jurors to empathize with the criminal, and that’s not likely to happen,” said Gregory Christopher Brown, assistant professor of criminal justice at Chapman University in Orange. “It’s a rare case where jurors can hear about a career criminal and still feel some sympathy.”

Anaheim defense attorney Doug Myers, who represented the defendant before Handy’s jury, isn’t second-guessing himself. His client, Joyce Demyers, has a long criminal history that includes robbery, burglary, prostitution, drug use--even a murder acquittal.

Instead of revealing his client’s background and hoping for an understanding or lenient jury, Myers believed he had a better chance of winning by challenging the prosecution’s evidence.

“I thought about it, I thought about it a lot,” Myers said of disclosing his client’s background. “But I decided there were several tryable issues, factual questions about guilt, and that’s the way I went.”

Demyers was arrested in an Anaheim motel room last October after helping to set up a drug transaction between a dealer and a “buyer” who turned out to be an undercover officer. She became the first person in Orange County sentenced to 25 years to life under the “three strikes” law.

In another case, defense attorney Michael J. Cassidy was hoping for a juror like Handy during the burglary trial of Robert Eric Parrish, who had prior convictions for assault and burglary.

A judge allowed Cassidy to take a gamble and effectively put the “three strikes” law on trial by disclosing his client’s criminal past.

“I tried to impress upon the jury that the people who voted for ‘three strikes’ thought it was only for people who committed violent crimes, and I tried to tell them this particular case didn’t fit the bill of goods that they were sold,” Cassidy said. “It didn’t work.”

Mark Currier, a juror in Parrish’s case, said a few jurors seemed troubled by convicting the defendant of a third “strike.” But jurors ultimately felt bound by the judge’s instruction to follow the law. And under the law, Currier said, Parrish was clearly guilty.

“The defense attorney was definitely trying to swing us his way,” Currier said. “But it really didn’t matter. Our job was to look at the facts.”

Standard jury instructions explicitly bar jurors from considering a defendant’s possible punishment--except in death penalty cases. In limited instances, however, such as the Parrish case, some judges allow attorneys to quiz potential jurors about their views on the controversial “three strikes” law.

Defense attorneys hope that by bringing the “three strikes” issue up during jury questioning or by allowing jurors to review a defendant’s prior convictions, they can get jurors to read between the lines and realize the gravity of the situation upon a third conviction.

Deputy Public Defender Garson admits he tried everything short of blurting it out at a recent trial.

“When discussing the priors, I told the jury (there was a) first conviction, (there was a) second conviction and if they found him guilty it would be his third ,” Garson said. “It was like hint, hint, put two and one together and get three strikes.”

Somehow, the effort was lost on jurors, who convicted Ricky Valadez of a burglary and only realized it was a “three strikes” case as they were leaving the courtroom. Two jurors filed declarations with the court protesting the potential punishment.

“This is stupid. I don’t think this benefits anyone,” juror Scott Allman stated in court papers. “Personally, I don’t think the ‘three strikes’ should apply to nonviolent crimes.”

A judge refused to grant Valadez a new trial and sentenced him to 25 years to life in prison for stealing a drill from a garage, Garson said. Valadez had two prior residential burglaries, including one that dated back to the late 1970s.

Deputy Dist. Atty. Michael Jacobs, who oversees “three strikes” cases for his office, said about 19 jury trials have been held under the law in the county. One case ended in a hung jury, another in an acquittal and the rest in convictions.

Jacobs said defense attorneys have only asked jurors to consider a defendant’s record in perhaps two or three instances--underscoring how rarely the strategy is used.

“Generally the thinking is, that kind of a tactic will backfire before it does any good,” Jacobs said.

Prosecutors have generally opposed any attempts to alert jurors to “three strikes” cases, but those decisions are made on a case-by-case basis, Jacobs said.

Presiding Orange County Superior Court Judge James L. Smith said he is opposed to allowing jurors to consider punishment in “three strikes” cases, because doing so is against the law.

“If the law changed, then it would be fine, but the issue of sentencing and punishment is irrelevant for the jury,” Smith said, adding that the discussion underscores the high stakes facing defendants and defense attorneys. “This shows you just how desperate people are these days.”

Gov. Pete Wilson signed the “three strikes” law last March, and the legislation was backed by voters in November. The law demands tougher sentences for violent and serious crimes, ranging from burglary to murder. A defendant convicted of a third “strike” faces 25 years to life in prison--the same penalty a first-degree murderer faces.

Among the first 100 “three strike” cases filed in Orange County, most defendants racked up a potential third “strike” with nonviolent crimes--mostly drug use and burglary. But most defendants also had prior convictions for violent crimes: robbery, rape, manslaughter and even murder.

The “three strikes” law requires judges to sentence a convicted defendant to 25 years to life in prison, although there is an ongoing debate over whether judges have the discretion to reject such a harsh penalty. A third “strike” defendant must serve a minimum of 20 years, costing taxpayers at least $450,000 in incarceration costs, before becoming eligible for parole.

David Biggs, a former public defender and prosecutor who teaches criminal law at Western State University College of Law, believes that most defense attorneys will try to keep a defendant’s criminal history from jurors, and leave sentencing to the judge.

Myers said the harsh reality is that most jurors support “three strikes” legislation and would only be opposed in extreme cases, such as an older defendant whose prior crimes were nonviolent and took place several years ago. In that instance, a jury might be willing to effectively pardon a defendant facing a minor charge like petty theft.

“But those kinds of cases are far and few between,” Myers said. “The fact is, most jurors think, ‘Once a criminal, always a criminal.’ ”