Prosecutors Seek Change in Jury Voting

State justices can affirm a death sentence 4 to 3. County supervisors can pass a budget 3 to 2. But jurors cannot decide a criminal case without unanimity.

Ron Janes wants to change that.

Janes, a Ventura County chief deputy district attorney, serves on a seven-prosecutor committee trying to overhaul California’s jury-verdict system.

The prosecutors--hailing from Ventura, Alameda, Orange, Los Angeles and Sacramento counties--are trying to make a case for non-unanimous verdicts in the state. Under a bill now in the Assembly, juries would be able to convict or acquit accused murderers and other criminal defendants on votes of 10 to 2 or 11 to 1.

If passed by both the state Senate and Assembly, the bill would go to voters for approval.

Janes contends that the jury system, as currently operated, is out of control. Non-unanimous verdicts would remedy the problem, he argued.

“It’s one of the most important issues to come up in criminal justice in a long time,” he said.

To illustrate their discontent with the current system, prosecutors point to cases such as the prosecution of a Westlake mother who was charged with child abuse for allegedly disciplining her teen-age daughter by biting the girl and imprisoning her for months in the family’s back-yard racquetball court.

After a six-week trial, the jury deadlocked 11 to 1 in favor of conviction. The holdout juror told other panelists that he empathized with defendant Charlotte Russo because he had raised an unruly daughter of his own.

Instead of facing a second trial, Russo, 50, pleaded guilty to lesser charges and was sentenced to six months in a work-furlough program. Prosecutors initially had sought to send her to state prison.

Notwithstanding such cases, critics denounce the plan for non-unanimous verdicts as an infringement on defendants’ constitutional right to a fair trial. They accuse prosecutors of trying to tilt the scales of justice to favor the government.

“This is an egregious impediment of the right of every person to have a fair trial, and it’s going too far,” Ventura County Public Defender Kenneth I. Clayman said.

Myrna Raeder, a Southwestern University law professor, agrees. “To me, this is disturbing because it really is asking for a fundamental restructuring of the criminal-justice system. Once you go to a non-unanimous verdict, there is the tendency to basically have the majority simply ignore the statements of the minority.”

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Janes helped write a position paper supporting the Assembly bill that would make California the third state to adopt non-unanimous verdicts, after Oregon and Louisiana. Under the proposal, introduced by Assemblyman Richard Rainey (R-Walnut Creek), non-unanimous verdicts would apply to criminal cases, except those where the punishment could be death.

The bill is now stalled before the Public Safety Committee, having run into Democratic opposition. But prosecutors, the prime lobbying force on the issue, believe they will have the votes to bring the issue before voters in March.

No one knows for sure how often one or two jurors hang a jury. The issue has never been studied, experts say.

But what prosecutors say they do know is that California has far too many hung juries.

The paper recently issued by the California District Attorneys Assn. puts the rate of hung juries at about 10% in California, though it varies from county to county. Last year, the rate was 15% in Alameda County, 14% in Los Angeles County and 8% in Ventura County.

In comparison, the rate was less than 1% in Oregon, one of two states where the non-unanimous system is in effect.

“This is something that is working in this country right now,” Janes said. “In Oregon, they have had this for more than 50 years. Nobody thinks that the people of Oregon are a bunch of zealots.”

Supporters of the measure also say jury holdouts often only delay and temper justice. Although most defendants benefiting from hung juries are later convicted at a retrial or through plea negotiations, retrials can cost about $10,000 a day and defendants often are allowed to bargain to lesser offenses in plea bargains, they say.

Prosecutors blame defense attorneys, not jurors, for what they claim is an abundance of deadlocked juries. Defense attorneys often have weak cases and rely on the sympathies of one or two jurors to prevent a guilty verdict, instead of trying to win an acquittal, prosecutors contend.

“It’s no secret the defense attorneys, in their training, are taught to hang up juries,” Janes said. “That’s an exercise in gamesmanship. A trial is supposed to be a search for the truth. It’s not supposed to be a contest.”

Defense attorneys say most juries hang because significant blocs of jurors cannot agree on guilt or innocence. They dismiss the notion that a few holdout jurors who ignore the evidence frequently deadlock juries.

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Defense attorneys also say non-unanimous verdicts would simply result in more juries rubber-stamping prosecutors’ cases.

And legal scholars such as Southwestern’s Raeder said the important role that holdout jurors play in the system would be lost if non-unanimous verdicts were adopted.

Public Defender Clayman, who has also defended cases in Los Angeles, said the public is well aware of the injustices that can occur when juries refuse to hear out dissenting jurors, who often raise valuable but overlooked points during deliberations.

“Like in ’12 Angry Men,’ that one person’s opinion would be worthless by merely getting 10 people to vote guilty,” Clayman said, citing the movie classic in which a holdout juror was able to persuade his colleagues of a defendant’s innocence.

“Even if there is what can be called a legitimate complaint in an occasional case, does that mean we throw away a system that has been so effective in protecting the rights of people?” Clayman asked.

If non-unanimous verdicts are adopted in California, some defense attorneys predict that prosecutors will then push for majority verdicts.

“This one thing keeps them from winning every case, our cherished right of a unanimous verdict,” Clayman said. “How many innocent people have to be sacrificed to this very selfish goal?”

Added Ventura defense attorney Bobby I. Schwartz: “Like the old saying, ‘If it ain’t broke, don’t fix it.’ ”

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But some prosecutors cite a 1990 case handled by Schwartz as an illustration of why non-unanimous verdicts are needed.

Schwartz was representing Rendell (B.B.) Charles, who was charged with two counts of trafficking in cocaine. The evidence against Charles included the testimony of a police informant who twice bought drugs from the defendant and audiotapes of those transactions, authorities said. Police also monitored the buys, said the prosecutor on the case, Deputy Dist. Atty. James Grunert.

But in Charles’ first trial, a mistrial was declared after the jury voted 11 to 1 in favor of conviction. In his second trial, a new jury again voted 11 to 1 in favor of conviction.

Like in the Russo child-abuse case, prosecutors finally agreed to negotiate a plea with Charles instead of trying him a third time. He received the lowest possible prison sentence, three years.

“All the defense attorney has to do is find one or two persons, and he’s done his job,” said Grunert, who rates the Charles case as his most frustrating trial in the 14 years he has prosecuted criminals.