In our society, the right to a fair
trial is deemed so important that due to a mistake made by a judge, a convicted
child molester may well go free. In
this matter, Manuel Hernandez was on trial for multiple counts of child
molestation. In October of 2000, he was
found guilty of fifty-two different counts, covering sexual penetration by a
foreign object, sexual abuse of a child younger than fourteen, and lewd acts on
a child. So what went wrong? The Second District Court of Appeal
overturned the guilty verdicts ruling that the judge trying the case committed
reversible error when he dismissed a female juror during the trial. Why did the judge dismiss the juror? He did so after the juror indicated she
thought both the judge and prosecutor were smirking at the defense during the
trial. The Court of Appeal stated “as a
result, appellant was denied his federal and state constitutional right to a
trial by a fair and impartial jury, and we see no choice but to reverse his
conviction despite the heinousness of the crimes involved.”
I am with the Court of Appeal on
this one. The Court concluded that the
trial court judge did not act maliciously; however, the Court felt that it was
clear this juror was sympathetic to the defense, and when the juror voiced her
concerns about what she perceived to be inappropriate behavior on behalf of the
judge and the prosecutor, she was then bounced from the jury. The removal of the juror took place after
almost all of the evidence had been presented.
The successful argument on appeal
was that of double jeopardy, which indicates that an individual cannot be twice
tried for the same crime. Therefore if
this ruling holds up there can be no retrial.
In this case, the juror called out
the Judge and indicated she wanted to clarify a few matters. She then told the judge she did not like the
prosecutor’s tone while cross-examining a defense witness, and she believed
that both the prosecutor and the judge were smirking and making faces, and that
she was bothered by this. Judge Arnold
responded that the juror was mistaken.
The juror was then asked the question that always gets asked in this
type of situation, which is whether or not the juror had formed an opinion
about the outcome of the case and whether or not the juror could remain
open-minded throughout the pendency of the case. The juror said that she could.
At that point, the juror was asked
to leave the courtroom and both the judge and prosecutor indicated that the
juror appeared frantic and tortured, and the judge concluded that the juror
would no longer be able to remain impartial and do her job appropriately as a
juror. The juror was then removed from
the trial.
There have been decisions rendered
in the past reversing trial court decisions such as this one which have not
gone down the double jeopardy road.
These decisions have overturned trial court convictions, however, they
have NOT FOUND that the person cannot be retried. In this case, the Court of Appeal decided that the Court’s action
“tilted the jury toward the prosecution, thereby insuring the appellant’s
conviction.”
The Attorney General’s Office is now
considering what to do, and whether or not to appeal the Court’s ruling. One way or another, it appears clear that
the conviction will remain overturned; however, the Attorney General’s Office
may attempt to overcome the double jeopardy part of the ruling and if successful
be permitted to retry Mr. Hernandez.
After his convictions, Mr. Hernandez
was sentenced to forty-three years in prison.
As was stated earlier, these were clearly heinous crimes.
My hope from all this is that courts
err to the side of caution when it comes to the removal of a prospective
juror. There have been recent decisions
permitting courts to remove jurors who are not deliberating with the other
jurors, and, while I occasionally find those troubling, I do understand them. Perhaps I’m from the old school which feels that
each juror has the right to his or her opinion, and as long as a juror is
listening during deliberations, that is all that I would require of the
juror. I would not make active
participation a requirement if the juror has made up his or her mind relatively
quickly. That aside, however, in a case
such as this when you have a juror who is clearly pro-defense, it is not the
role of the judge to remove that juror and leave eleven jurors on the panel who
have not complained about the behavior of the judge and/or the prosecutor and
then add an alternate juror who may well be pro-prosecution.
In my career as a psychotherapist, I
have a patient who found himself in the criminal justice system , and at his
first trial, the jury voted eleven to one to convict him of that with which he
was charged. Eleven to one equals a
hung jury, and the prosecution decided to re-try the case. At the re-trial, all twelve jurors voted not
guilty, and my patient was acquitted.
If the one pro-defense juror had been removed in trial number one, there
never would have been a trial number two, and my patient would have been
convicted. I am not offering an opinion
on whether or not he did what he was accused of doing, or whether or not Mr.
Hernandez was guilty of what he was accused of doing; let’s assume for the
moment that both were. It is absolutely
crucial that if people are to be convicted, they are convicted the right
way. What makes this state and country
special is that we do things differently than anywhere else in the world. There are other systems similar to ours,
such as the British; however, ours is unique.
Unfortunately, every once in a while, in order to maintain our uniqueness,
we are going to have to stomach and accept a difficult result so that the
greater principle can be upheld.
Charlie Unger is a criminal defense attorney in the Glendale
law firm of Flanagan, Unger, Danis & Grover, and a psychotherapist at the
Foothill Centre for Personal and Family Development. Mr. Unger writes a bimonthly column on legal and psychological
issues. He can be reached at charlie@charlieunger.com or at (818) 244-8694