Judge Rules Juror’s Talk Insufficient for Mistrial

An incident of juror misconduct surfaced Wednesday during the penalty phase of the Justin Merriman murder case, but a Ventura County judge ruled it was not prejudicial enough to force a mistrial.

Superior Court Judge Vincent J. O’Neill Jr. issued the ruling after a dramatic disclosure that during deliberations last month a 63-year-old female juror and a county deputy sheriff discussed how the jury was going to “fry” Merriman.

While O’Neill, choosing his words carefully, said the misconduct did not influence other jurors or undermine their verdicts, legal experts said the defense may have a strong issue on appeal.

The issue arose for the first time this week after Deputy David Kadosono reported the incident to O’Neill.

Details of the incident were revealed in court Wednesday:

Last weekend, Kadosono, who has provided security throughout the Merriman trial, saw Senior Deputy Katie Baker at a bookstore. Baker stated she knew a juror on the case and that the juror had told her “they were going to fry him.”

Baker, an eight-year veteran of the department, was called into court Monday for a closed-door hearing and admitted having a phone conversation with the juror, whose daughter is married to her brother.

The juror was excused from the case Monday because of an unrelated family illness.

On Tuesday, the same juror in a closed court hearing admitted talking to Baker about the case. She said Baker had initiated the conversation and she denied the “fry” remark.

Both Baker and the juror were unclear about when the conversation occurred, but they believed it was on a weekend before or during jury deliberations in mid-February.

It also was revealed that Baker discussed the conversation with at least two ranking officials in the Sheriff’s Department, Capt. Bruce Hansen and Sgt. Rick Barber, neither of whom reported the incident to the court.

On Wednesday, the final day of penalty phase testimony, defense attorneys Willard Wiksell and Philip Capritto filed a motion for a mistrial.

“ ‘We are going to fry him’ means only one thing,” Wiksell said. “This jury should be thanked and excused. This whole penalty phase has been compromised.”

But prosecutors said taking the juror off the case solved the problem.

They argued there was no evidence other jurors made up their minds about what penalty Merriman should receive. The jurors were questioned in court Wednesday and denied any impropriety.

O’Neill took the matter under submission for several hours while testimony resumed Wednesday with a final prosecution witness, a Toronto neuropsychiatrist who disputed conclusions about a brain scan offered last week by a defense expert.

After testimony concluded, O’Neill denied the motion and made several factual findings.

He found that Baker initiated the conversation with the juror, saying something “off the cuff” about how she hoped the jury would put the defendant away. O’Neill said it was “highly likely” the juror responded and stated her expectation that the death penalty would be imposed. He said she probably used the word “fry.”

But he ruled those remarks did not prejudice other jurors, who reportedly were unaware of the conversation. The judge repeatedly has ordered jurors to avoid media coverage and not discuss the case.

Merriman, a 28-year-old skinhead gang member, was convicted of first-degree murder and related allegations in the 1992 slaying of college student Katrina Montgomery.

The jury agreed that Merriman killed Montgomery, 20, after raping her at his mother’s Ventura condominium after a party. The finding propelled the case into a penalty phase in which jurors must decide whether Merriman faces death or life in prison without parole. Closing arguments are this morning.

Deputy Dist. Atty. Ron Bamieh criticized Baker and the other sheriff’s officials who didn’t report the incident, saying they had jeopardized a case that took years to prepare.

“We’re in the truth business,” Bamieh said. “That is what we want from law enforcement.”

The Sheriff’s Department launched an internal investigation into its employees’ actions after receiving written reports from those involved. Chief Deputy Dante Honorico said the administrative inquiry could last several months and the consequences could range from a verbal reprimand to termination.

Honorico said the failure to report a conversation with a juror is against department policy.

“It strikes at the heart of our integrity,” he said.

Meanwhile, legal experts predicted Wednesday that reviewing courts will look seriously at the misconduct issue.

“This will be a significant issue on appeal,” said Loyola law professor Laurie Levenson. Procedurally, she said, O’Neill handled the matter appropriately. But she added that juror misconduct is frequently an issue in criminal appeals.

“I think one of the most fertile grounds for defense attack is juror misconduct because jurors are human beings and they don’t always follow the rules,” she said.

Given the possible penalty in Merriman’s case, said Ventura defense attorney James Farley, an appellate court must closely scrutinize the issue.

“This is different,” he said, “because it is in a penalty phase where a life is at stake.”

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Times staff writer Anna Gorman contributed to this story.