Metropolitan News-Enterprise


Friday, February 8, 2002


Page 1


Appeals Court Orders Convicted Sex Offender Freed Because Judge Improperly Removed Juror


By ROBERT GREENE, Staff Writer


A Los Angeles Superior Court judge’s mid-trial decision to oust a defense-leaning juror has resulted in a windfall for the defendant, who had his conviction and 43-year sentence for child sexual abuse thrown out and now cannot be retried because of the prohibition against double jeopardy.

Judge Mark S. Arnold may have had the right motives for removing a juror after she complained about the prosecutor’s tone during cross-examination of a defense witness and appeared agitated and misused words during her colloquy, Court of Appeal Justice Daniel A. Curry of this district’s Div. Four said.

But the record did not show that the juror was irrational, incapable of continuing her service, or unable to be impartial, Curry said. In removing the juror, Arnold abused his discretion, tainting the verdict that the remaining jurors and the alternate reached, the justice concluded.

“[T]he fact remains that by removing a juror who, having heard nearly all the evidence, was sympathetic to the defense, the court tilted the jury toward the prosecution thereby ensuring [the defendant’s] conviction,” Curry said.

“Since the constitutional prohibition against double jeopardy is intended to foreclose judicial attempts to garner advantage for the prosecution or afford it another more favorable opportunity to convict the accused, we are compelled to further hold that the bar of double jeopardy forecloses a new trial,” he said.

 The problem with Juror No. 8 in the trial of Manuel Hernandez came toward the end of the trial. The juror sent a note to the judge saying that some things had happened that “dropped [her] respect with this system.”

In the on-the-record colloquy, she told Arnold that she was troubled by the prosecutor’s tone during cross-examination of a defense witness and that she believed both the prosecutor and the judge were smirking or making faces.

The two situations “are making it difficult for me to remain open-minded,” the juror said.

The judge responded that there were no such expressions on his face.

After the juror was sent back to the jury room, the judge expressed concern about her emotional state, referring to her clenching and unclenching her fists and keeping her eyes tightly closed during the colloquy.

The judge also expressed concern about the juror’s use of words, worrying that they were evidence of her irrationality.

Curry said the record did not show any “legal necessity” or good cause to alter the composition of the jury mid-trial.

The court and the prosecutor may have sincerely believed that the juror was emotionally unable to continue, the justice said, but the “scanty record” raises “an opposing inference just as strong that the motivation was to replace a fully qualified juror in order to avoid a hung jury and a painful retrial.”

If retrial is to be permitted under such circumstances, he said, “the vital and fundamental right of every citizen to trial by a fair and impartial jury would be gravely undermined and the right to be free from double jeopardy would be rendered meaningless.”

The case is People v. Hernandez, B145238.


Copyright 2002, Metropolitan News Company