What will the California State Supreme Court do? The question before
the justices in early June pertained to the April 2000 jury trial of
Garcia was accused and convicted of shooting his neighbor over a
property-line dispute. The evidence was mostly circumstantial, and
Garcia was sentenced to life in prison. So, what was it that brought
this case in front of the highest court of the state? It was the
behavior of Superior Court Judge Hugh Mullin III during the jury
During this trial, the judge, the lawyers, and the jury all went
to visit the location of the alleged crime in Santa Clara. All
parties relevant to this case attended that outing. So far, so good.
At the end of the trial of the case, the jury began to deliberate, as
juries normally do. After four days of deliberations, the jurors sent
a note to the judge requesting a return visit to the location in
question as there were things the jurors wanted to review. This time,
Judge Mullin would not let the defense attorney attend.
His view was that since the jury was deliberating, it would not be
proper for the defense attorney to go to the scene with the jury.
In April of last year by a 2 to 1 vote, the First District Court
of Appeals held that Judge Mullin did not commit error with his
ruling. That lead to the State Supreme Court appeal.
In review of the arguments made by both sides and the questions
asked by the State Supreme Court justices, it appears as if Judge
Mullin’s ruling is going to be reversed.
The defense attorney, Dennis Reardon, indicated that it was his
belief that an improper taking of evidence had occurred at a time at
which deliberations, not the further taking of evidence, was to take
Part of the problem was that Judge Mullin admitted that he did not
watch all of the jurors all of the time during this second visit.
In fact, Judge Mullin admitted he pretty much let the jurors do
whatever they wanted. One juror wanted to use a laser pointer to help
him determine the angle at which the bullets were shot. The judge
refused this request, however, he then suggested that the jurors make
or create “sight lines” instead. This suggestion by the judge
violates Penal Code Section 1138, which says that whenever there is a
question from the jury during the period of deliberations, the judge
must notify both attorneys of that question and obtain their feedback
before responding to it.
It also came to light that one of the jurors brought a yellow
glove with him to use as a marker which apparently was his attempt to
checkout one of the arguments put forth by the prosecution. All of
this is improper.
Sure enough, after four days of deliberations without reaching a
verdict, after this second visit to the crime scene on the afternoon
of the fourth day, the jury returned a verdict of guilty the next
The prosecutor attempted to salvage the propriety of this visit by
arguing that the jurors visiting the crime scene with the judge was
tantamount to their asking to look at an exhibit from the trial.
Exhibits are items that are admitted into evidence during a trial.
Chief Justice Ronald George didn’t seem to buy this argument as he
said “a crime scene, by definition, can change ... as opposed to an
exhibit which is immutable.”
What in the world was Judge Mullin thinking? Garcia has the right
to a fair trial. He is denied that right when jurors are permitted
to, in effect, run amok and gather evidence.
If a judge permits a jury to visit a crime scene during
deliberations it has to be a closely monitored and structured visit.
Both attorneys need to be there to make sure nothing untoward takes
place and the judge is supposed to give the jurors strict
instructions regarding what they can and cannot do. These
instructions do not include laser pointers, sight lines and yellow
gloves. It is supposed to be a period of time for observation, not
for the conducting of experiments and the testing of theories.
Judge Mullin went way too far with what he did and his first
mistake was in excluding Reardon from the visit.
I look forward to the State Supreme Court’s ruling in this case as
I am confident this conviction will be reversed. If Roy Garcia did
commit murder, it should be proved the right way -- that is what our
system is all about.
* CHARLES J. UNGER is a criminal defense attorney in the Glendale
law firm of Flanagan, Unger & Grover, and a therapist at the Foothill
Centre for Personal and Family Growth. He may be reached at (818)
244-8694 or at www.charlieunger.com.