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[email protected] (Myra Dinnerstein)
Subject: RULING ON JUROR TARGETING
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Date: Fri, 21 Jul 1995 18:14:36 GMT
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES
Date: 14 July 1995
Department 103
Hon. Lance. A. Ito, Judge
Deidre Robertson, Deputy Clerk
People v. Orenthal James Simpson
Case # BA097211
Originally Filed July 19, 1995 Superior Court
JUROR TARGETING
The court has read and considered the DEFENDANT'S MOTION FOR AN
EVIDENTIARY HEARING TO DETERMINE WHETHER THE INVESTIGATION AND
SELECTIVE DISQUALIFICATION OF JURORS AND ALTERNATIVES HAVE BEEN
ENGINEERED BY THE PROSECUTION OR OTHER GOVERNMENT ACTORS IN ORDER
TO OBTAIN AN UNFAIR ADVANTAGE AND FOR OTHER RELIEF TO PREVENT A
MISTRIAL, the defendant's AMENDED MOTION, defendant's
SUPPLEMENTAL DECLARATION IN EVIDENTIARY HEARING REGARDING THE
PROCEDURES EMPLOYED FOR THE INVESTIGATION OF JURORS and heard the
argument of counsel.
This jury trial commences with 12 jurors and 12 alternate jurors.
As of 5 June 10 jurors and alternates have been excused, 5 upon
motion by the defense, 4 on motion by the prosecution and 1 on
the court's own motion:
18 January: Juror 228 - motion by the prosecution, objection by
the defense.
18 January: Juror 320 - motion by the defense, objection by the
prosecution.
7 February: Juror 2017 - motion by the defense, objection by the
prosecution.
1 March: Juror 620 - motion by the prosecution, objection by the
defense.
17 March: 602 motion by the defense, objection by the
prosecution.
5 April: Juror 462 - motion by the prosecution, objection by the
defense.
1 May: Juror 452 motion by the court without objection.
25 May: Juror 353 - motion by the defense, objection by the
prosecution.
5 June: Juror 1427 - motion by the defense, objection by the
prosecution.
5 June: 1489 - motion by the prosecution, objection by the
defense.
The defendant urges the court to conduct an evidentiary hearing
to determine whether the prosecution or other governmental
agencies have been conducting investigations concentrating upon
jurors or alternates thought to be favorable to the defense for
the purpose of gaining an unfair advantage and/or causing a
mistrial. The defendant goes on to argue that if indeed such
governmental, misconduct has occurred and a mistrial is later
declared if fewer than 12 jurors are available to deliberate, the
defendant would be entitled to the protections of the United
States Constitution and California constitution prohibition of
double jeopardy and subsequent retrial.
The prosecution argues that there is no bases in fact for such an
allegation and that no legal precedent supports the defendant's
position.
The court has an obligation, independent of the parties, to
investigate allegations of juror misconduct. People v. Hedgecock
(1990) 51 C3d 395, 417; People v. Keenan (1988) 46 C3d, 478, 532;
People v. Burgener (1986) 41 C3d 505, 520; People v. McNeal
(1979) 90 CA3d 830, 838. Of the 10 jurors and alternates thus far
dismissed 5 were upon motion of the defendant and one upon motion
of the court without objection from either party. The court's
attention will therefore be focused upon the dismissals of jurors
228, 620, 462 and 1489 which were upon motion of the prosecution.
JUROR 228
During the course of voir dire juror 228, an employee for the
Hertz Corporation, a leading car rental agency, stated that he
had never met the defendant, a celebrity spokesperson for the
Hertz Corporation.(1) A telephone call disputing this statement
was made to both the clerk of the court and the prosecution.
Defense counsel reported receiving an anonymous telephone call
with similar information. This information also surfaced in
connection with a tabloid publication. It was alleged that 228
was on a Hertz Corporation committee that planned and attended a
social event that involved the defendant. The court received
information that juror 228's participation in the planning of the
event was contained in a contemporaneous Hertz publication.
During the chambers conference with counsel, the court expressed
the opinion that it would be inappropriate for the prosecution to
conduct investigations of jurors. The Sheriff's Department agreed
to assign two investigators from the Special Investigations
Bureau, Deputies R. Downs and L. Brown. The court specifically
directed counsel for both parties not to conduct any independent
investigations of any allegations of juror misconduct and to
refer any relevant information directly to the court. The
investigation conducted by Deputies Downs and Brown lead to
witnesses who had worked with juror 228 on a committee working on
a VIP reception where the defendant, as a celebrity spokesperson,
was one of the invited and attending VIPs and that the organizing
committee had been introduced to the defendant. The testimony of
the witnesses indicated that it was implausible that juror 228
had not met the defendant during the course of this event. The
witnesses also indicated that given juror 228's contact with
Hertz VIP customers as a result of his job assignment that it was
also unlikely juror 228 had not had personal contact with the
defendant who was a frequent visitor at the Hertz facility at
LAX. The court found the overwhelming weight of the evidence
presented indicated juror 228's claim he had not personally met
the defendant was not credible. Given this, plus the fact both
juror 228 and the defendant were employed by the same company,
the court found good cause upon motion of the prosecution to
dismiss juror 228. A juror who conceals relevant facts or gives
false answers during the voir dire examination thus undermines
the jury selection process and commits misconduct. In re
Hitchings (1993) 6 C4th 97, 111.
JUROR 620
The court received a communication from a private investigator in
Washington, D.C., indicating she had met someone at a party who
had a friend who had a friend who was a juror and an employee of
an express delivery service who had stated that he had already
made up his mind about the case and planned to make money from
the experience by writing a book. The jury questionnaires
indicated juror 620 was an employee of Federal Express. The
information was assigned by the court to Deputies Downs and Brown
indicated that a friend of juror 620 had told many co-workers
that juror 620 had indicated that he would never vote to find the
defendant guilty. In the course of defendant and locating
witnesses acquainted with juror 620, Deputies Downs and Brown
determined that 620 had an arrest record involving apparent
domestic violence that had not been disclosed during voir dire or
the questionnaire. Further investigation revealed court documents
indicating juror 620's first marriage involved allegations of
domestic violence which were not disclosed during voir dire.
Domestic violence is an important issue in this trial. The
failure to candidly answer questions in this area during voir
dire deprives the parties their right to intelligently exercise
their peremptory challenges.(2) Failure to disclose a criminal
arrest involving allegations of domestic violence constitutes the
type of misconduct noted in People v. Price (1991) 1 C4th 324,
399-400.
JUROR 462
On 21 March 1995 the court was advised by Deputies Downs and
Brown of an allegation that juror 462 had been the victim of
spousal abuse over a long period of time.(3) Follow up
investigation revealed that on 8 February 1988 juror 462 filed an
Order To Show Cause And Temporary Restraining Order (Domestic
Violence Prevention Act) which contained substantial allegations
of domestic violence by one Melvin Harris against juror 462. The
court was provided a copy of Los Angeles Superior Court file
number D 209368. The court makes not of the declaration made by
juror 462 under penalty of perjury dated 8 February 1988.
Domestic violence is an important issue in this trial. These
allegations were not noted in juror 462's questionnaire or in
voir dire. A juror who conceals relevant fact or gives false
answers during the voir dire examination thus undermines the jury
selection process and commits an act of misconduct. In re
Hitchings (1993) 6 C4th 97, 111.
JUROR 1489
Juror 462 and others reported personal conflicts amongst the
jurors and alternates. While some conflicts can be expected
amongst jurors sequestered together for a long period of time as
in this case, indeed some conflict would be normal, allegations
of deliberate and offensive physical contact are extraordinary.
The court in People v. McManus (1960) 180CA2d, at 30, observed:
"...In the course of a long trial such as the one at bar, nerves
and tempers are not uncommonly on edge and judge must exercise
the utmost patience and forbearance in controlling situations of
this kind... he (the trial judge) had the duty of controlling
such matters as in his judgment would be most conductive to the
expeditious and harmonious conduct of the trial to the end that
both the defendants and the people would have the matters at
issue fairly determined on the merits." In McManus the offending
behavior was a high level of danger and hostility exhibited by
one juror towards the prosecutor and an alternate juror, observed
by the court. The Court of Appeal upheld the trial in its
exercise of discretion to excuse both jurors involved in the
conflict. In this case there have been multiple incidents
involving juror 1489 and jurors 353 and 1427.
Incident One: Juror 353 reported to the court that while entering
the jury box she inadvertently stepped on 1489's foot. 1489 then
leaned over and stated to 353 that if it happened again he would
trip her. This colloquy was overheard and reported to the court
by jurors 19, 98, and 63. During the interview by the court,
1489 admitted the comment to 353. The court notes juror 1489 to
be a 54 year old male standing approximately 5'10" and weighing
approximately 200 pounds. The court notes juror 353 to be a 38
year old female standing approximately 5'4" and weighing
approximately 125 pounds.
Incident Two: Juror 1427 reported that while in the courthouse
elevator juror 1489 bumped into her. Believing at first that
this was inadvertent due to the normal level of elevator
crowding, 1427 ignored the bumping. 1427 reported that 1489
proceeded to bump her three more times, pausing in between to
look and make facial gestures to a group of 2-3 other jurors.
1427 found this to be highly offensive. The court notes 1427 to
be a 28 year old female standing approximately 5'8" and weighing
approximately 130 pounds.
Incident Three: Juror 19 reported that on 21 April, while in the
elevators on the way out of the courthouse, he observed 1489 to
deliberately bump 1427. 4
Incident Four: On 25 May it was reported to the court by
bailiffs that 1427 was very upset to the point of crying. Upon
inquiry, 1427 complained that 1489 had offensively brushed up
against her while in the juror lounge. 5 She found this to be
both disturbing and offensive.
Incident Five: Juror 1427 reported that 1489 would sit and stare
at her in an unpleasant manner when the jurors were in the jury
room. This staring was also noted by jurors 1290 and 19.
Incident Six: Juror 1290 reported that she was also the target
of offensive staring by 1489.
On 25 May the court inquired of 1489 about incidents Two, Three
and Four. 1489 denied the described incidents of physical
contact between he and 1427 had ever occurred. 1489 denied
having any sort of conflict with 1427. The court found this
denial to lack credibility and that 1489's conduct was disruptive
of the truth finding process. See U.S. v. Fajardo (11th Cir.
1986) 787 F2d 1523, 1525. No governmental action is apparent.
"TARGETING"
The investigation concerning juror 228 was commenced by the court
based upon information received directly by the clerk of the
court from a former co-worker of juror 228. The investigation
concerning juror 620 was commenced by the court based upon
information from a non-governmental source received directly by
the clerk of the court. The investigation concerning 462 was
commenced by the court based upon information provided to
Deputies Downs and Brown by Los Angeles Police Department Officer
Amormino whose source wished to remain anonymous. The
investigation concerning juror 1489 was commenced by the court
after complaints from other jurors and alternates. The record
reflects that this court has conducted hearings into allegations
of juror misconduct that are perhaps unprecedented in variety and
length. The only juror that has been dismissed based upon an
investigation instigated by information directly received from a
governmental source is 462. The allegation, proven to be true,
that 462 was the victim of domestic violence, would appear to be
a factor favoring the prosecution because it is the theory of the
prosecution that the defendant engaged in multiple acts of
physical violence and abuse against victim Nicole Brown Simpson
over a long period of time and that the homicide in this case was
the last act of control in such an abusive relationship. 6 The
concealment of being the victim of abuse similar to that suffered
by victim Nicole Brown Simpson would appear to be of greater
concern to the defense. 7 This record does not support an
interference that jurors are or have been targeted for removal by
any governmental agency.
The defense submits two declarations in support of its motion,
one of a former prospective juror and one of defense counsel
Johnnie L. Cochran, Jr. The former prospective juror was
interviewed by Deputies Downs and Brown after she contacted the
court stating she had additional information concerning
misconduct by sitting jurors and alternates. The former
prospective juror declares that she was told by Deputies Downs
and Brown that the Los Angeles Police Department was conducting
juror investigations. Deputy Downs denies having made such a
statement. It should be noted that this court had previously
interviewed this particular former prospective juror regarding
the allegations of juror misconduct which were found to be
unsubstantiated. The boasting and baiting conduct which has been
engaged in between Deputy District Authority Christopher Darden
and defense counsel Johnnie L. Cochran, Jr. both in and out of
court, is both obnoxious and childish and not reasonable,
credible or sufficient basis for the court to conduct a hearing
into allegations of juror targeting.
It must be noted that the high level of public interest in this
case has created the unexpected by-product of a constant flow of
information about the jurors and their backgrounds from sources
beyond the parties. The essence of such information was that
jurors 228, 620, and 462 deliberately concealed material
information during the questionnaire and voir dire process. The
court found the information concealed to be material, the act of
concealment to be deliberate and to be misconduct indicating an
inability to perform the functions of a juror. Misconduct is
misconduct without reference to the source of the information
initiating the court's investigation. The real difference here
is that the public has taken great interest in who is sitting on
this jury despite the court's use of an anonymous jury. The
defense argument apparently assumes that because information of
juror misconduct in the form of concealment of material
information comes from a governmental source that it must be
ignored or that governmental entities have no legitimate interest
in having trial jurors who have honestly represented their
backgrounds and opinions.
The defense motion for a hearing into juror targeting is denied.
The clerk of the court is directed to serve a copy upon counsel
for the parties upon their next appearance in court.
IT IS SO ORDERED.
FOOTNOTES:
1. See Juror Questionnaire page 38/question 133, page 41/question
148, RT 5583 - 28 October 1994.
2. The court notes that both parties accepted this jury panel and
alternates without exhausting their allotment of peremptory
challenges.
3. "At 0945 hours this date, we received a telephone call from
Officer Jim Amorrino of the Los Angeles Police Department, Public
Affairs Unit, telephone number (213) 485-3281. Officer Amorrino
said that on March 20, 1995, at 1600 hours, while at the Criminal
Courts Building, he was approached by a male Black citizen,
approximately 42 years of age. The citizen told him that, "Mrs.
Harris, a juror on the Simpson case, has a long history of being
battered by her husband, Melvin Harris." The citizen also related
that, Mrs. Harris lives at [address omitted-noted to be correct],
and that if one wants to talk to the neighbors this information
can be verified." Reports of Deputies Downs & Brown, 21 March
1995. The court later received information from what the court
believes was the same anonymous source indicating that 462 may
have concealed her family's experience with crimes of violence.
The court had the impression the anonymous source was someone who
had engaged 462 or her family in civil litigation.
4. The court notes that on a previous occasion juror 19
requested to see the court to report misconduct by juror 602.
When interviewed by the court 19 reported that 602 had in his
possession a list of the jurors names and corresponding numbers
in violation of the court's orders when granting the motion for
an anonymous jury. When interviewed by the court 602 denied
having any such list in his possession. The court requested and
received 602's permission to examine 602's laptop computer.
While examining the computer, the court discovered the list of
juror names and numbers as described by 19 in a box of floppy
discs. The court takes this into consideration in evaluating the
reliability of the information provided by juror 19.
5 The court houses the jurors in a secure lounge which is
roughly four times the size of the jury deliberation room when
the jury will not be needed in the courtroom for extended periods
of time such during the noon recess.
6. See prosecution opening statement.
7 See defense counsel's argument in support of the dismissal of
juror 320.
