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Ingmar New Trial

Ingmar New Trial

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SUPERIOR COURT FOR THE DISTRICf OF COLUMBIA Criminal Division - Felony Branch

UNITED STATES

v.

Criminal No. 2009 CFl 9230 Hon. Gerald Fisher Sentencing: February 11, 2011

INGMAR GUANDIQUE

MOTION FOR NEW TRIAL AND INCORPORATED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Ingmar Guandique, through undersigned counsel, and pursuant to Superior Court

Criminal Rule 33 and his constitutional right to a fair trial by jury, respectfully moves this

Honorable Court for a new trial based upon 1) the government's improper closing argument and

2) juror misconduct.

As grounds for this Motion, Mr. Guandique, through undersigned counsel, states:

1) Mr. Guandique was presented on April 23, 2009, on a complaint charging him with

the death of Chandra Levy.

2) On May 27, 2009, Mr. Guandique was arraigned on a six-count indictment charging

him with kidnapping (Count One), attempted first-degree sexual abuse (Count Three)

and attempted robbery (Count Five) as well as three corresponding counts of felony

murder (Counts Two, Four and Six) in connection with Ms. Levy's death.'

3) Jury selection in Mr. Guandique's case began on October 18, 2010, and the jury was

ultimately selected and sworn on October 25, 2010.

IOn December 2, 2009, a superseding indictment was filed against Mr. Guandique adding Counts 7 (Conspiracy), 8 (Threats To Injure A Person) and 9 (Obstruction of Justice), and Mr. Guandique was arraigned on those charges on December 3, 2009, but they were dismissed by the government on October 14,2010.

4) At the outset of the trial the Court instructed the jurors with respect to note taking

stating, inter alia, that "[tjhose jurors who do not take notes should rely on their own

memory of the evidence and should not be influenced by another juror's notes." D.C.

Crim., Jury Instr. 1.105(A).

5) At the conclusion of the trial, on November 16, 2010, as part of its final instructions

the Court instructed the jury:

As I told you at the beginning of the trial, your notes are only to be an aid to your memory. They are not evidence in the case, and they should not replace your own memory of the evidence. Those jurors who have not taken notes should rely on their own memory of the evidence. The notes are intended to be for the note taker's own personal use. Tr. 146. 2,3

6) The jury did not follow the Court's instruction with respect to the use to be made of

any notes the jurors took. Instead, one juror, Sharae Bacon, reported that the jurors

who took notes shared their notes with one juror who reviewed them over the

weekend. See "Jurors Focused on Guandique Cellmate, Previous Attack Victims,"

By Keith Alexander, WASHINGTON POST, November 23,2010, Page A-6 (appended

hereto as Exhibit A).

7) The government's closing argument was replete with appeals to the jury's emotions,

and references to facts not in evidence.

2"Tr." refers to the 182-page transcript of the proceedings on November 16,2010, prepared by Susan G. Walker, Court Reporter.

3The Court further instructed the jury that it was its "duty to accept the law as [the Court] instruct [ ed] ... [and that it] should consider all the instructions as a whole ... [and not] ignore or refuse to follow any of them." D.C. Criminal Jury Instruction 2.101 Tr.146.

2

8) On November 22, 2010, the jury found Mr. Guandique guilty of felony murder and of attempted robbery. Sentencing was scheduled for February 11,2011.4

9) On November 23, 2010, the Court granted an extension of time within which to file a

motion for new trial, setting the deadline at February 1, 2011.

ARGUMENT

The Government's Improper Closing Argument Requires A New Trial

The government's closing argument was improper in three respects: it argued Mr.

Guandique's propensity to attack women, it elicited sympathy for the decedent, and it asked the

jury to speculate about facts outside the evidence with the sole object of inflaming the passions

of the jurors. The repeated occurrences of this misconduct, particularly the speculation on

matters outside the evidence and pleas for sympathy for the decedent, infected the entire closing.

Indeed, it was the theme of the government's closing that it hammered throughout its argument.

The government's closing argument began with an impermissible discussion of "other

crimes evidence" as propensity evidence intertwined with an appeal to the jury's sympathy for

the decedent. In the initial closing argument the prosecutor stated:

They will always see his face. They will always see his face. Stealthy as a cat, running up behind them, tackling them from behind, grabbing them from around the neck, using his wiry strength to take them down onto the ground. They will always see his face as they remember struggling and screaming, fighting with all their power, as he dragged them into the woods. For what purpose we can only imagine.

It's his face that Halle Shilling led her to tell you that she had never felt more afraid and alone in her entire life. And it's his face that made Christy Wiegand state, I would have struggled until I died, trying to get away from him. And it's his face that

4 On November 10,2010, the government had dismissed the other four counts of the indictment so the jury only returned verdicts on two of the counts.

3

Chandra Levy saw as she was dragged 180 feet into the woods. And it was his face that she looked up at and begged for mercy. And his face was the last face that she saw as she laid there naked and disabled, and he left her to die there in the woods.

Tr. at 40.

In addition to improperly arguing the Halle Shilling and Christy Wiegand incidents as

propensity evidence, there was no evidence regarding the end of Chandra Levy's life, her

begging for mercy, and her lying naked and disabled in the woods. Mills v. United States, 599

A.2d 775, 785 (D.C. 1991) (improper for the prosecutor to speculate, in the absence of any

evidence, how decedents were killed). Independently, that argument was an improper effort to

evoke sympathy for Ms. Levy and to inflame the jurors' passions about the offense. This proved

to be a theme of the prosecution's closing argument, and not simply an exercise of "flawed

judgment in the heat of battle." Id. at 785.

Thus, the prosecutor improperly referred to Ms. Levy, as a "beloved daughter, sister,

[and] an intern," Tr. at 40-41, and made repeated references to Ms. Levy having "only a week

[or five days, or a few hours] left to live." Tr. 41, 42, 46. See also Tr. at 58 ("[U]nless you think

that she wanted to be bound with her own tights and left in the woods, that she wanted to be

dragged off that trail and never see her family again ... ") (emphasis supplied).

Similarly, the prosecutor made repeated efforts to evoke sympathy for Ms. Levy by

imputing thoughts to her and invoking images of her:

Now we're in the woods. The woods. The woods is the second crime scene and it tells its own story. By the time Ms. Levy makes it to the woods, she's only got a few hours left to live. You can imagine her stepping out of her apartment in Dupont Circle, got her headphones on, listening to tunes, wearing her shades, beautiful day, feeling on top of the world. She's thinking her thoughts, she's in her zone, she's going home, she's graduating, she's looking for ajob. And what's happening in the woods?

4

Tr. at 46. It was as if the prosecutor were narrating a horror movie, with its tricks of

foreshadowing to whip up fear in the audience. But this was not a movie; it was

supposed to be a trial during which the jury clinically evaluated the facts.

Continuing to ask the jury to speculate but also to evoke sympathy for Ms. Levy the

prosecutor argued:

Well, what did happen to her? We don't know because there's no eye witnesses. All three crimes have that in common. But you've seen the crime scene. We know that something terrible happened to her. Maybe it's best not even to try to imagine. It certainly doesn't have to factor into your decision, into your verdict. But unless you think that Ms. Levy walked around with her shoes unlaced and untied and her clothes inside out, you know that what happened in those woods was ghastly. Because you know from all these pictures and the crime scene that you've heard so much about that she was chased off of that trail.

And when he got 180 feet into the woods, what happened.

She was either made to take her clothes off or he took them off for her. She was completely disrobed because all of those clothes are inside out. And then what did he do to her? Well, he tied her up. He tied her up with her own tights. Those are ligatures. We don't know how he did that. We don't know ifhe hogtied her. We don't know ifhe tied her hands behind her to a tree. We don't know. And it's best not to think about it. Because according to him, she didn't die immediately. We don't know if she had leaves and mud stuffed in her mouth as a gag, whether he used a sock to quiet her, whether she sprained an ankle, or whether she was just fine and regained consciousness bound and naked in the woods. If you believe Mr. Guandique, she lived. She lived for days potentially, knowing every minute what was happening to her, until she eventually died of starvation or dehydration or exposure, not being able to scream or scream loud enough, not being able to make it out of those woods because she was bound with her own ligatures. That's a potential. But we don't know for sure, and it's best not to think about that, because it doesn't have to factor into your decision. You just know that by the time Ms. Levy was no more, she had suffered."

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.:

..

Tr. at 56-57. These remarks by the prosecutor bore a striking resemblance to the closing argument deemed improper by the Court of Appeals in Tyree v. United States, 942 A.2d 629, 643 (D.C. 2008) (improper for prosecutor to argue '''[I]t is very difficult, as we sit here, to even imagine what this was like for [the decedent], the fear, the total shock of what was happening to him' ... 'end[ing] up .. .in a cold grave."') (citations omitted), cert. denied, 129 S.Ct. 1612 (2009). See also Hawthorne v. United States, 476 A.2d 164,171-172 (D.C. 1984) (despite lack of objection during closing argument, felony murder conviction reversed where accused suffered "substantial prejudice" when prosecutor's closing argument "inflame] d] the emotions of the jury" by, inter alia, "placing them[ ] in the victim's shoes.")

In Hawthorne, as in Mr. Guandique's case, the closing argument deemed improper by the Court of Appeals "expressed the prosecutor's personal thoughts about [the decedent's] thoughts, before and after his death, which were not, and as to the latter obviously could not be, evidence in the case." Hawthorne, supra, 476 A.2d at 171. In Mr. Guandique's case those improprieties are exemplified by the prosecutor's improper statements that Ms. Levy had her headphones on, was in her zone, on top of the world, thinking about going home, graduating and looking for a job, thereby putting the jurors in the shoes of the decedent. Similarly the statements regarding Ms. Levy's death, including, but not limited to, her having "potentially lived for days, knowing every minute what was happening to her until she eventually died of starvation or dehydration or exposure" were akin to those that occasioned reversal of the conviction in Hawthorne, and they warrant a new trial in Mr. Guandique's case. See also Hammill v. United States, 498 A.2d 551, 555 (D.C. 1985) ("prosecutor's comment about what the decedent was thinking necessarily involves an attempt to evoke sympathy.")

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In Mr. Guandique's case the prosecutor's statements in closing asked the jury to

speculate entirely by implying and suggesting that the decedent "lived for days potentially knowing every minute what was happening to her" and that she could have died of starvation, exposure or dehydration when no evidence was presented with respect to the cause of the decedent's death. Again, thinly veiled, by statements like, "it's best not to think about it," "it doesn't have to factor into your decision" and "we don't know if ... " the prosecutor did not

cure the prejudicial improprieties. Instead the prosecutor fully acknowledged that she was going beyond what the evidence at trial had established and asked the jury to follow her in this line of speculation, to feel sympathy for the decedent, to imagine the worst that could have happened to Ms. Levy and then to put themselves in her shoes. Hart v. United States, 538 A.2d 1146, 1150 (D.C. 1988) ("Prosecutoria1 remarks that seek to arouse the sympathy of the jurors for the victim are improper."), citing Powell v. United States, 455 A.2d 405, 410 (D.C. 1982). In Powell the Court of Appeals "condemn] ed]" emotional appeals to the jury that were "speculative, totally lacking support by the evidence, and irrelevant" and characterized them as "calculated to arouse the sympathy of the jurors for [the complainant]." 455 A.2d at 410. Similarly the prosecutor's emotional appeals to the jury in this case clearly evoked sympathy for the decedent. Accordingly Mr. Guandique is entitled to a new trial.

In addition, by suggesting that the decedent could have had leaves and mud put in her mouth, been gagged, or quieted with a sock, on the heels of having stated that "according to him" Ms. Levy had not died immediately, the prosecutor improperly highlighted Mr. Guandique's failure to testify and improperly suggested to the jury that the defense had some burden of proof to explain what had happened. U.S. CONST. AMEND. V "(No person ... shall be compelled in any criminal case to be a witness against himself.").

7

Throughout the prosecutor's closing argument an enlarged poster-sized in-life photo of Chandra Levy holding a flower and clothing that the government argued was Ms. Levy's -leggings, a tee shirt, and other items -- were prominently displayed. Indeed this was the backdrop for the prosecutor's entire closing argument and accordingly the jury sat and stared at that government-created diorama for the duration of the prosecutor's closing argument which lasted nearly an hour. In addition to these items remaining as the stage-set for the entire closing argument given by the prosecutor, she referred to them in her closing argument as a "room full of corroboration." Tr.69. Moreover, it is ineluctable that this dramatic presentation, displayed as a set in a theatrical production, affected the jury. That effect was apparent from the disclosure by one juror who said that the poster-size photograph of Chandra Levy -- the one that had been on display in the well of the court for the duration of the government's closing argument -- had hung on a wall of the jury room throughout the jury's three-and-a-half days of deliberations and "haunted her," See "Jurors Focused on Guandique Cel/mate, Previous Attack Victims," By Keith Alexander, WASHINGTON POST, November 23,2010, Page A-6 (appended hereto as

Exhibit A).

That same juror's statements made clear the prejudicial impact of the prosecutor's improper closing argument in which she evoked sympathy for the decedent and also made an only-thinly veiled effort to ask the jury to speculate about the end of the decedent's life. ("Maybe it's best not even to try to imagine. It certainly doesn't have to factor into your decision, your verdi ct.") The juror made clear how the prosecutor's improper comments in closing had a prejudicial impact when she stated that she "'wanted to know if she tried to fight him. Did she ever stop fighting? Did she ever see him or know what was happening .. I just can't imagine.'" See "Jurors Focused on Guandique Cel/mate, Previous Attack Victims," By Keith Alexander,

8

WASHINGTON POST, November 23,2010, Page A-6 (appended hereto as Exhibit A). Thus it is

clear that "the jury's ability to judge the evidence fairly" was effected by the prosecutor's

improper remarks in closing argument. United States v. Young, 470 U.S. 1, 12 (1985).

The culmination of the prosecutor evoking sympathy for the decedent came at the

conclusion of her closing argument when she argued:

... You've been tasked with doing justice, and that is an awesome responsibility. But justice is what needs to happen in this case. Justice is what needs to happen for this young girl. She's been waiting nine years for justice. And just because it's been nine years in coming, does not mean it should be denied ... [W]e're going to ask you to say the words that bring justice to this case ...

Tr. at 70. Jurors are not tasked with "doing justice." They are tasked with determining whether

the government has met its burden of proving guilt beyond a reasonable doubt; for the prosecutor

to have stated otherwise was a misstatement of the law as well as an improper suggestion that the

jury should be motivated by what was good "for this young girl."

While undersigned counsel did not object during any of the foregoing recited portions of

the government's closing, it bears mention that an objection undersigned counsel had lodged to

another portion of the government's closing had been overruled. See Tr. at 52 (overruling

objection to prosecutor's statement that "only one person can make sense of what these are.

That's Mr. Guandique."). In the eyes of the jury any additional objections by defense counsel

ran a serious risk of inaccurately, but dangerously for Mr. Guandique, suggesting that defense

counsel was unsympathetic to the loss of life at issue in the case. Having already been overruled

on another objection when the prosecutor improperly suggested that Mr. Guandique had some

obligation to "make sense of' prior robberies, thereby implying that he had an obligation to

testify and carried a burden of proof, consistent with their obligations to zealously represent Mr.

9

Guandique, undersigned counsel could not take such a risk and did not object to other improper

portions of the government's closing argument.

Moreover, even in the absence of an objection by defense counsel, trial courts have the

duty to correct improper comments made during closing argument sua sponte. United States v.

Young, supra, 470 U.S. at 10-11.5 See also id. at 9 (improper advocacy "has no place in the

administration of justice and should not be permitted nor rewarded; a trial judge should deal

promptly with a breach by either counsel.")

Even if, arguendo, each of the improprieties in the government's closing argument,

alone, do not suffice to warrant a new trial, when considered in aggregate, they surely do. See

Gardner v. United States, 898 A.2d 367, 375 (D.C. 2006) (''where ... there are multiple

instances of asserted improper comments" during the government's closing arguments, they are

reviewed to determine whether their "cumulative impact. .. substantially influenced the jury's

verdict."') citing Foreman v. United States, 792 A.2d 1043, 1058 (D.C. 2002). See also Diaz v.

United States, 716 A.2d 173, 181 (D.C. 1998) (finding that closing argument "as a whole" was

improper even if"in isolation" some of the prosecutor's statements were not improper).

When considering whether the improprieties in the government's closing argument merit

a new trial, the Court should consider that the government's evidence against Mr. Guandique

was weak --- lacking any eyewitnesses, and also lacking any physical or forensic evidence tying

him to the decedent's death --- the prosecutor's improper argument was substantially prejudicial

and accordingly a new trial is warranted. Compare Tyree, supra, 942 A.2d at 643 (prosecutor's

5 Unlike Young, in Mr. Guandique's case the improper comments by the prosecutor did not come in rebuttal closing in response to any arguments made by the defense, but instead came during the government's initial closing argument. Accordingly they cannot be characterized as an "invited response." Young, supra, 470 U.S. at 11. Moreover, in Young the Supreme Court decided only whether the prosecutor's misconduct was plain error, 470 U.S. at 6, but agreed that it was improper. 470 U.S. at 14.

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improper remarks in closing argument were "unlikely [to have] .. .influenced the jury's verdict given the strength of the government's evidence which included several witnesses' narratives that appellant shot [the decedent] at close range in the back in cold blood, in a feud between rival groups over drug turf') (citation omitted); Gardner v. United States, supra, 898 A.2d at 375 (characterizing government's evidence as "abundant" in determining that prosecutor's closing did not merit reversal). For that reason the government's improper closing argument cannot be glossed over and dismissed as not having been prejudicial to Mr. Guandique.

The Jury's Failure To Follow The Court's Instructions Requires A New Trial

Juror misconduct has been recognized as a basis for a new trial even in the absence of a motion for mistrial. United States v. Brown, 913 F. Supp. 1324 (D. Minn. 1996), ajJ'd, 108 F.3d 863 (8th Cir. 1997). In Brown the trial court granted a motion for new trial on two counts of which the accused was convicted "based on juror misconduct" in the form of jurors' exposure to extrinsic information. 913 F.Supp.2d at 1326.

While, absent evidence to the contrary, jurors are presumed to follow a trial court's instructions, the evidence in this case demonstrates that the jury did not follow the Court's instructions, and that at least one of the jurors relied on notes taken by other jurors during the trial. This reliance on extrinsic evidence is particularly worrisome given the fact that the prosecutor in closing was also actively asking the jury to speculate about matters outside the evidence at trial. In such a situation it appears that the line between what the jury could permissibly consider and other extrinsic information or mere speculation was effectively erased.

In addition, the jury's failure to follow the instruction from the Court regarding the use to be made of notes taken during the trial raises questions and causes concern about whether it

11

followed the Court's other instructions. That is of particular concern given the plethora of media

coverage about Chandra Levy's disappearance and death and about Mr. Guandique, much of

which was not admitted as evidence at trial.

The jurors who shared their notes with the other juror failed to heed the Court's

admonition that a juror's notes are solely for the use of the juror who took those notes. Likewise

the juror who reviewed the notes ofthe other jurors also failed to abide by the Court's

instruction. Although the Court is prohibited from inquiring into the mental processes behind the

jury's verdict," that does not preclude an examination of the externally verifiable fact that, in

contravention of the Court's instructions, the jury made improper use of the notes taken by those

jurors who took them.

To ascertain whether extrinsic information was provided to the non-note-taking juror an

evidentiary hearing is necessary to determine what was included in the notes of the jurors who

took them and that were reviewed by the non-note-taking juror. See Brown, supra, 913 F. Supp.

at 1329 (trial court conducted post-verdict hearing at which "all of the jurors. .. appear[ ed]

individually in chambers to answer a limited number of questions posed by the court after they

had returned a verdict.") See also Lee v. United States, 471 A.2d 683, 684 n.l (D.C. 1984) (trial

court ''privately interviewed each juror" in deciding motion for new trial). Moreover, given the

Court's clear directive not to consider notes taken by other jurors, beyond what the notes

themselves said, any inquiry of the jurors should also determine what the jurors' understanding

was of any limitations on information not obtained in the courtroom (which would encompass

not only notes taken by others, but other information the jurors obtained other than through the

6See Fed. R. Evid. 606(b) (precluding inquiry into "mental processes" but permitting testimony on "whether any outside influence was improperly brought to bear upon any juror"). See also Al-Mahdi v. United States, 867 A.2d 1011, 1019 (D.C. 2005), citing Khaalis v. United States, 408 A.2d 313, 359 (D.C. 1979), cert. denied Adams v. United States, 444 U.S. 1092 (1980).

12

.'

trial proceedings themselves). The information available thus far calls into question the jurors'

compliance more generally with the Court's orders regarding limiting themselves was to the

evidence they themselves heard in the courtroom.

That information indicates that "reasonable grounds for investigation" exist and therefore

a post-trial jury hearing is warranted. United States v. Moon, 718 F.2d 1210, 1234 (2nd Cir,

1987) (citation omitted), cert. denied, 466 U.S. 971 (1984). Those reasonable grounds exist

because there is "clear, substantial and uncontrovertible evidence that a specific, non-speculative

impropriety has occurred which could have prejudiced" Mr. Guandique's trial. Id. In Moon

evidence surfaced after the verdict regarding potential jury improprieties and the trial court

conducted a post-trial hearing at which four jurors were questioned. 718 F.2d at 1233-1234.

Applying the Moon procedure to Mr. Guandique's case requires, at the very least, that the Court

hold an initial post-verdict hearing to ascertain exactly that to which the non-note-takingjuror

was exposed in reading the notes of the other eleven jurors who took notes, and further, whether

others of the Court's instructions were not followed. Absent such a hearing there is no assurance

that extraneous information did not infect the jury's verdict.

WHEREFORE, for each of the foregoing reasons independently, as well as for the

combination of the two reasons, Ingmar Guandique, through undersigned counsel, respectfully

requests, that after an evidentiary hearing, the Court grant this motion and afford him a new trial.

Dated: February 1, 2011

Respectfully submitted,

Maria Hawilo (D.C. Bar. No. 490-084) On Behalf of Ingmar Guandique Public Defender Service

633 Indiana Avenue, N.W. Washington, D.C. 20004

(202) 824-2546

Santha Sonenberg (D.C. Bar No. 76-188) On Behalf of Ingmar Guandique

Public Defender Service

633 Indiana Avenue, NW

Washington, D.C. 20004

(202) 824-2308

13

"

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Motion for New Trial and the Incorporated Memorandum of Points And Authorities In Support Thereofhas been served by hand and also by electronic mail upon Fernando Campoamor-Sanchez and Amanda Haines, Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20530 and at Fernando.CampoamorSanchez@usdoi.gov and Amanda.Haines@usdoi.gov on this 1 st day of February, 2011.

Santha Sonenberg

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Jurors tocused on Guandique cellmate, previous attack victims

Page lof3

Il}t Wtlll}ington POlt

Jurors focused on Guandique cellmate, previous attack victims

By Keith L. Alexander Washington Post Staff Writer

Monday, November 22, 2010; 9:36 PM

Jurors in the Chandra Levy murder trial could have rendered a verdict as early as Friday, after just two days of deliberations. In fact, all but one of the jurors were convinced that Ingmar Guandique had accidentally killed the young government intern during a robbery.

But one juror wasn't sure, according to Sharae Bacon, one of the jurors who spoke about the deliberations after the verdict was delivered. She declined to identify the juror but said the juror had not taken notes during the more than two weeks of the trial and wasn't convinced that there was any proof that Guandique had tried to rob Levy.

"We had to share our notes [with the juror]. It was very frustrating. We said, 'Just think about it over the weekend and let us know what you think on Monday,' " Bacon said. By Monday morning, the hold-out had reviewed the other jurors' notes and agreed with the majority, she said.

It was the testimony of Armando Morales, Guandique's former cellmate, that convinced Bacon. Morales testified that Guandique confided in him that he had killed Levy. Bacon said she did not believe that Morales, who belonged to same gang as Guandique,

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had a reason to lie.

The testimony of Halle Shilling and Christy Wiegand, the two women Guandique had pleaded guilty to attacking in separate incidents in Rock Creek Park about the same time Levy disappeared, also figured in the jury's verdict. Both women described how, as they were jogging on separate evenings in the late spring or early summer of 200 1, Guandique jumped them from behind and dragged them into the woods, off the trail, and how they fought him off.

"It was hard not to be moved by their testimony," said juror Sue Kelly, 58. "It was very powerful."

Citing Morales's testimony, Bacon said she believed that Guandique tried to rob Levy but never meant to kill her. "He was just trying to

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Jurors tocused on Guandique cellmate, previous attack victims

Page 2 of3

Jurors focused on Guandique cellmate, previous attack victims

survive," said Bacon, who, along with other jurors, believed that Guandique was homeless at one point and was living in the park.

The jurors also noted that several witnesses had testified about Ouandique telling them about a "dead girl." Bacon, 38, recounted how Guandique's former girlfriend, Iris Portillo, and his former pen pal, Maria T. Mendez, both said Ouandique had told them he was

in jail because of a "dead girl."

The jurors dismissed the numerous mistakes made by police and authorities in handling the evidence. "They were trying to do their job and had no idea what kind of case it was at the beginning," Bacon said.

Bacon also dismissed the fact that Ouandique's DNA was not found at the scene. "[Levy's] DNA wasn't found either. Everything had eroded," she said.

Fonner California congressman Gary A. Condit, who refused to acknowledge whether he was having an affair with Levy, 24, at the time she disappeared, wasn't "credible" when he testified, Bacon said.

"He was useless. He wouldn't answer the questions," she said. Bacon said she believed it was merely a "coincidence" that Condit was having an affair with Levy at the time she disappeared.

Bacon said the jurors watched Susan Levy, Chandra's mother, closely as she sat in the courtroom. The jurors also saw her in the courthouse's halls and restrooms. Levy would never speak to them, but she would smile. "I wanted justice for the family," Bacon said. "We wanted to make sure he was the right person."

For more than three days, the jurors sat in a windowless conference room with exhibits and pictures taped to the wall. One picture, of Levy smiling and holding a red flower to her cheek, had been blown up to poster size and hung on a waIl at the far end of the room.

Bacon said she was haunted by Levy's photo during the deliberations. "I wanted to know if she tried to fight him. Did she ever stop fighting? Did she ever see him or know what was happening?" Bacon recalled. "I just can't

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Jurors focused on Guandique cellmate, previous attack victims

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Jurors focused on Guandique cellmate, previous attack victims

imagine."

The nine women and three men bonded during the trial. They celebrated birthdays and shared birthday cake in the jury room during lunch. They became friends and exchanged phone numbers.

"We had been together a month," Bacon said. "We took this very seriously."

View all comments that have been posted about this article.

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