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1/13/2009 The Judge's Decision - Los Angeles …

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The Judge’s Decision

December 24, 2000 in print edition A-25

Excerpts from ruling of Los Angeles Superior Court Judge Jacqueline Connor

Explanation of relevant

section of law:

Penal Code 1181 provides a number of grounds for consideration, the relevant sections being
as follows:

1181.3 Any misconduct by which a fair and due consideration of the case has been prevented;

1181.5 Whether the court has misdirected the jury in a matter of law or has erred in the discussion of
any question of law arising during the trial, or any prejudicial misconduct by the prosecution;

1181.6 and .7 The sufficiency of the evidence, whether the verdicts are contrary to the law or
the evidence.

Grounds for

overturning verdict:

In this case, the alleged impropriety is the improper reliance by the jury on an issue never proffered
by the prosecution nor articulated as a theory underlying the charges of conspiracy, false reports
or perjury.

The failure to decide whether or not there was an accident is fatal to the conviction of Mr. Buchanan
under these counts alleging perjury.

Misconduct, whether simply inadvertent, misguided or deliberate, still deprives defendants of their
right to a fair trial.

Penal Code section 1181.5 permits the granting of a new trial when the court has misdirected the jury
in a matter of law, or has erred in the decision of any question of law arising during the courts of the
trial or whether the prosecution has engaged in prejudicial misconduct.

Evidence available to the court suggests that in fact the jurors were misdirected in the law, that the
law was misapplied and that the misapplication resulted in the denial of a fair trial on the merits.

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of affidavits:

The people correctly argue that statements made, conduct, condition or events can be considered
but evidence of the mental processes of the jurors is strictly forbidden. However, this restriction
does not, contrary to the prosecution’s argument, prohibit advocates from “piercing the veil”
of deliberations.

The key consideration in determining whether affidavits or other evidence of juror misconduct are
admissible relate to the corroborative nature of the evidence, whether the statements or evidence
are open to corroboration by sight, hearing or the other senses.

Where there are objectively verifiable portions of the statements, it is only logical that the court may
consider them while disregarding the inadmissible portions … the court is allowed to take
the declarations into consideration as a whole in order to determine whether or not jury
misconduct occurred.

The argument offered by the prosecution that they did not seek any affidavits because this would be
improper in some way is not compelling. The state of the evidence therefore leaves the
statements undisputed.

The jurors did not agree that there was or was not an accident. Why they reached this conclusion
one way or another deals with impermissible mental processes. The fact that they did not reach an
agreement is admissible.

Significance of

great bodily injury:

The trial record consistently shows that this first scenario, that no officer was hit, was the only theory
pursued by the prosecution throughout the trial.

The defense and the jury were presented with a single theory which the prosecution now claims
could have arisen from any number of different acts… . It was not contemplated by any of the parties
nor the court that there was more than one act upon which the people were relying.

The court is aware, as is any neophyte to the criminal justice system, that we have our own language
that must be learned and learned well by any practitioners… .

Certainly had the court been aware that the jury assumed there was such a charge as great bodily
injury, the rulings as well as the instructions would have been different.

The court does not suggest that the people deliberately exploited the misstatement or deliberately
deceived the jury into believing that there is such a crime as a “GBI charge” or “ADW with GBI.”
However, the fact remains that the shorthand referrals that are accepted on a daily basis in police
stations, on police reports, in district attorney offices and defense attorney offices were not corrected
in their presentation to an uninformed lay jury. The misconduct by the jury in proceeding on the
improper basis that there was such a crime is not at all unreasonable in light of the circumstances
presented to them… .


The court does conclude that there was jury misconduct, though unintentional, misguided and
inadvertent, in the consideration of improper facts.

While recognizing the enormous pressure on the community, on the police force, on the district
attorney’s office and on the courts to “fix” the Rampart scandal, this court is only interested
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in evaluating the fairness of the proceedings in this court and determining whether justice was done
in this case. This court cannot and should not consider the political ramifications of future lawsuits or
future prosecutions. The defense in this case has presented compelling arguments to support their
argument that the defendants did not receive a fair trial.

The court cannot simply look the other way and ignore the improprieties, innocent or not, intentional
or unintentional, that served to deny a fair trial in this case.

While the court cannot and will not presume to guess whether a correction of the errors would result
in any different verdict, it most certainly concludes that the verdicts in this case cannot stand.

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