Judges Rarely Admit Error, Experts Say

TIMES STAFF WRITERS

Only rarely does a judge in a criminal case overturn the verdict reached by jurors in her own courtroom. Still rarer is the judge who admits to committing an error so serious it taints a verdict.

Los Angeles County Superior Court Judge Jacqueline Connor did both Friday night in an extraordinary ruling that overturned the convictions of three Rampart Division police officers, impressing legal scholars with both her tightly reasoned legal arguments and her unusual candor.

At least one scholar, however, questioned whether the judge would ever have issued such an order had the defendants not been police officers.

"I think it's an excellent thing for a judge to do," said Stan Goldman, a former public defender who is a professor of law at Loyola University Law School. "I'm just saying I can't recall another case in which it was done."

Goldman and other scholars agreed that prosecutors would have a tough time persuading an appeals court to reverse Connor's ruling. Even one prosecutor familiar with the case agreed.

"It's a very well-written opinion, and it's going to be very difficult to go in and say, 'This judge abused her discretion in this case,' " the prosecutor said, speaking on the condition of anonymity. "And if you can't prove that she abused it, then the Court of Appeals won't reverse it."

Although he disagreed with the substance of the ruling, the prosecutor conceded that Connor "understands the case law, and knows it well," and used it to "cover everything the Court of Appeals is likely to ask."

Connor ruled just before midnight Friday in the case--the first to arise from the scandal in the Los Angeles Police Department's Rampart anti-gang unit. In her order, she wrote that the jury's verdict had been compromised by the jurors' apparent misunderstanding of a common phrase of police slang, and that she had committed a "fatal error" by not recognizing the misunderstanding.

At the center of her reasoning was the notion that jurors had, in effect, based their verdict on nonexistent evidence because of the way they misinterpreted the phrase "with great bodily injury." The officers were accused of framing suspected gang members by charging them with committing assault "with force likely to produce great bodily injury" when, in fact, prosecutors argued, no such assault had taken place.

In testimony, police fell back on police shorthand--"cop speak," as Connor called it--and spoke of "assault w/GBI," or "assault with great bodily injury," even though the law does not require serious injuries to actually occur.

In affidavits sought by defense lawyers after the verdict, several jurors said they had been confused by the term and had assumed that, because the officers were not seriously injured, they must have been making up the charges against the suspected gang members. In effect, the judge said, they were relying on "improper facts"--a faulty understanding of the law.

"The court does conclude that there was jury misconduct, though unintentional, misguided and inadvertent, in the consideration of improper facts," she wrote.

Erwin Chemerinsky, a law professor at USC, said he expects Dist. Atty. Steve Cooley to appeal the decision. But, he said, because the ruling was so heavily based on the facts of the case, the appeal will be more difficult.

"The question on appeal is: Did the judge cross the line in considering the mental processes of the jury?" Chemerinsky said.

Judge's Decision Likely to Be Questioned

At issue is a section of the state evidence code that bars a judge from considering the mental processes of the jurors in determining whether to overturn a verdict.

Connor said she was not violating that section because she was weighing uncontested evidence that was contained in the jurors' affidavits, in which some said they could not agree on whether the ramming incident happened.

"Why they reached this conclusion one way or another deals with impermissible mental processes," the judge wrote. "The fact that they did not reach agreement is admissible."

Whether the judge improperly considered mental processes is a close question, Chemerinsky said. But he noted that Connor made a strong argument that she was only considering irrefutable facts, not the jury's internal reasoning.

Connor decided the jury's actions rose to the level of misconduct. Another judge could have decided that the jury was simply confused and no misconduct occurred, the law professor said.

"On appeal, the prosecution is going to say that, at worst, this was a deliberative error and that maybe the jury was confused but that is not a basis for overturning a verdict. This wasn't misconduct."

On the defense side, lawyers will argue that the jurors committed misconduct because they disregarded the judge's instructions.

"I think it is a really close question that could go either way," Chemerinsky said.

University of Santa Clara law professor Gerald Uelmen said Connor "may be right for the wrong reason."

He said he believes the judge violated the "mental processes" code section. He said it was impossible for Connor to reach her conclusions about the jury "without discerning their mental processes."

"What the judge is doing here is saying, because they didn't answer a specific question in a specific way, they engaged in misconduct."

Even though a Court of Appeal may find she overreached here, appellate judges might still uphold the overturning of the verdicts on other grounds, Uelmen said.

The legal scholar said Connor made a compelling case that the defendants were deprived of notice--the prosecution should have disclosed to them the theory of the case against them.

Also, he said, the defense may successfully argue that Connor failed to instruct the jury properly.

It is significant that the judge relied on defense affidavits to reach her conclusion, he said. Rarely do judges allow defense lawyers to take affidavits from jurors, Uelmen said.

"I think this is going to be appealed, and then an appellate court could very well agree with her conclusion but find that it was for the wrong reasons."

Goldman, the Loyola professor, said he was surprised and impressed that the judge admitted error. The jury in the case had asked for a "read-back"--a rereading of testimony--regarding the issue of "great bodily injury." She had denied the request because she thought the issue was irrelevant. She later realized her mistake--but too late. Just as she was about to authorize the rereading, the jury announced that it had reached a verdict, she said.

Calling her decision a "fatal error," she wrote: "Certainly, had the court been aware that the jury assumed there was such a charge as Great Bodily Injury, the rulings as well as the instructions would have been different," she wrote.

"That's very noble," Goldman said. "It doesn't occur very often. Judges don't often admit their errors."

While he praised her ruling, he questioned whether the average defendant could ever count on a judge's overturning a conviction on a similar basis. His reaction to the ruling, he said, reminded him of his reaction to the U.S. Supreme Court's ruling that ordered Florida officials not to recount ballots in the recent presidential election because it would violate the "equal protection" guarantees in the Constitution.

He said he was cheered to see the court rely on "equal protection," but questioned whether the ruling would be "a precursor to a whole series of equal-protection cases to be strongly issued by the U.S. Supreme Court in the future dealing with election rights."

"Similarly," he said, "I find it unlikely that this will be the precursor to a whole series of new approaches taken in examining jury verdicts after the fact."

Connor also said the case had been tainted by the way in which the prosecution handled the potential testimony of former police Officer Rafael Perez, whose admissions of wrongdoing and allegations against colleagues led to the investigation of Sgts. Edward Ortiz and Brian Liddy and Officer Michael Buchanan. Prosecutors, concerned about Perez's credibility, waited until near the end of the trial to announce that they would not be calling him as a witness.

"This put the defense in the position of having to anticipate and set forth the foundation for impeachment of the people's famous witness and devote substantial trial currency, time and energy as well as their credibility into their defense strategies," the judge wrote.

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