Prosecutors in Tuffree Case Undeterred by Mistrial

In the wake of a mistrial in the Daniel Allan Tuffree murder case, prosecutors said Friday they are confident they can convict him of first-degree murder for the killing of a Simi Valley police officer in a second trial.

Although they were disappointed that the six-week proceeding ended Thursday with a hung jury, prosecutors and defense attorneys said there was little Ventura County Superior Court Judge Allan L. Steele could have done to change the outcome of the case.

Steele was forced to declare a mistrial when the jury deadlocked 9 to 3 on whether Tuffree intentionally shot and killed Officer Michael Clark last year during a gunfight with police.

With the majority of votes leaning toward a first-degree-murder conviction, prosecutors said they have no intention of dropping the charge--even though Tuffree was found guilty of two lesser offenses.

“I can guarantee you that we will not drop count one,” said Deputy Dist. Atty. Peter Kossoris. “We will proceed to prepare for trial.”

The jury on Wednesday convicted Tuffree, 49, of armed assault and attempted murder for shooting at another officer, which is punishable by a life prison sentence with the possibility of parole, according to the penal code.

Attorneys have 60 days to set a new trial date for Tuffree, which means jury selection could begin as early as December, Kossoris said. A hearing on the matter is set for Tuesday morning in Steele’s courtroom.

Judge Charles W. Campbell Jr., presiding judge of the Superior Court criminal department, said the second trial may be assigned to a different judge. Campbell and Presiding Superior Court Judge Robert C. Bradley are discussing the issue and probably will make a decision Tuesday.

Although attorneys are gearing up for a second courtroom fight, it is possible the Tuffree case could end in a settlement, which happens more often than not in mistrials, according to Century City defense attorney Harland W. Braun.

In fact, the last mistrial in a capital murder case in Ventura County was settled after the defendant pleaded guilty to the lesser charge of second-degree murder.

The trial of Mike Lindley ended in 1980, when a jury deadlocked 11 to 1 to convict him in connection with a drug-related triple murder in the mountains above Ojai. Two other men were also found guilty of the slayings.

Local defense attorney Bill Maxwell, who was the prosecutor on the Lindley case, said it was settled after the other men were convicted of lesser offenses.

“It depends on the case,” Maxwell said Friday. “In some cases, you might let him plead to second.”

But in a case like Tuffree’s, Maxwell and other attorneys concede, the stakes are higher because the victim was a police officer.

“That’s a hard one,” Maxwell said. “But it is only hard because of the politics. Theoretically, it ought to be treated like any other case.”

Asked whether the district attorney’s office would consider a settlement, Kossoris said: “I would not want to comment on that.”

The question of what to do next in the Tuffree murder case follows on the heels of the mistrial and jurors’ explanations as to why they did not return a unanimous verdict.

Prosecutors argued that Tuffree was a police hater who intentionally shot and killed Clark after he saw officers enter his backyard with their guns drawn. But Tuffree’s attorneys said he tried to hide from police and only fired on Clark after the officer shot at him.

The question of whether or not the shooting was premeditated became the sticking point for the jury, which practically begged Steele for an answer that would allow it to return a verdict.

According to notes jurors passed to the judge, the panel sought guidance on what constituted premeditated murder. They specifically asked whether Tuffree’s act of getting his gun when he saw the officers showed--by itself--premeditation.

Steele’s response to the question, seen by the media for the first time Friday, was vague: “It may and it may not.”

But according to attorneys and judges, he was vague for good reason.

“I think there’s a purpose for that, and that’s to let the jury look at the law and evaluate the facts and to let the jury decide how the facts fit in with the law,” said Kenneth I. Clayman, a public defender .

Campbell said he understands that a jury might have wanted a more definitive answer from Steele, but that was not an option for the judge.

“They were probably hoping they would find the answer [in Steele’s response], but fortunately, they have to decide themselves based on the evidence,” he said.

Judges are carefully instructed on what they may and may not do when a jury reveals that it is deadlocked. They may, for example, ask what the numerical split is. But they are strictly cautioned not to inquire whether the split verdict favors acquittal or conviction.

According to the State Bar’s manual on criminal law, a judge must avoid coercing a verdict by attempting to influence the jury to consider compromise. Furthermore, a judge cannot admonish minority jurors to consider preponderance of opinion, numerical division or the cost of a retrial.

“The judge has to be very careful to not direct the jury one way or another,” said Ventura County Superior Court Judge Steven Z. Perren, who declined to discuss the Tuffree case but spoke generally about the challenges judges face with a hung jury. “It is one thing to give people a map and another to tell them which road to take.”

Twenty years ago, judges were permitted to use a controversial legal instruction known as the Allen charge to break a deadlocked jury by emphasizing the importance of the case and the likelihood of another trial. But that approach was ruled unconstitutional in 1977.

In the Tuffree case, the judge told the jury that it could not return a verdict on the lesser charge of second-degree murder without first acquitting Tuffree of the more serious offense--something the nine jurors in favor of a first-degree conviction would not do.

Kevin J. McGee, chief assistant district attorney, said the only way around that in the Tuffree case would be if the prosecution decided to drop the first-degree murder charge--once the jury deadlocked--and instead let the jury deliberate on a second-degree murder charge. That was never considered, he said.

Wilson is a Times staff writer and Murphy is a correspondent.