When hands-on deliberation goes wrong

CHARLES UNGER

What will the California State Supreme Court do? The question before

the justices in early June pertained to the April 2000 jury trial of

Roy Garcia.

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

trial.

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

place.

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

morning.

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.