Metropolitan News-Enterprise


Tuesday, April 9, 2002


Page 1


C.A. Orders New Trial Because Judge Told Potential Jurors to Lie


By KENNETH OFGANG, Staff Writer/Appellate Courts


A trial judge who told potential jurors in the trial of a black defendant to make up excuses for getting off the panel, rather than admit to racial bias in open court, committed error requiring reversal, the Third District Court of Appeal.

Placer Superior Court Judge Joseph O’Flaherty’s well-meaning effort to keep discussion of prejudice out of his courtroom “resulted in voir dire so inadequate as to render the trial fundamentally unfair,” Presiding Justice Arthur Scotland wrote for the court.

The justices ordered a new trial for Joy Ann Mello, convicted of aiding and abetting the robbery and false imprisonment of a gas station attendant, and of being armed with a firearm in the commission of those offenses. Mello, who admitted a prior serous felony conviction, was sentenced to state prison.

On appeal, Mello challenged O’Flaherty’s attempt to deal with the “touchy subject,” as the trial judge described it, of race. Noting that the defendant was African American and “[a]lmost everybody in this courtroom” Caucasian, the judge suggested that anyone who “might not, for racial reasons, be able to give this defendant a fair trial…come up with something so that you can get out of sitting here.”

Mistrial Sought

Mello’s counsel moved for a mistrial at the recess, saying the judge’s remarks had tainted the panel. O’Flaherty denied the motion, and after the recess elaborated on his remarks.

The judge said he wanted it made clear that “bigotry cannot have any place in this courtroom.” He also said he didn’t want to embarrass anyone who might possess bigoted feelings, so that if someone had any such views, “in this very narrow area, you can lie.”

The judge added that “[i]t doesn’t take a rocket scientist to figure out how to get excused” and that he would “rather have you do that than sit on the jury if there’s a genuine problem in this area” of race.

Those instructions were “astonishing,” Scotland wrote.

The presiding justice rejected the attorney general’s contention that the instructions, while improper, were harmless. O’Flaherty’s comments, Scotland said, “had practical, deleterious consequences” and rendered the jury selection process so unreliable as to constitute structural error.

Defendant’s Right

“Where racial bias is concerned, the judge’s duty to inquire comes from California law as well as from the Sixth and Fourteenth Amendments to the United States Constitution,” the jurist explained. “…If the judge fails so abjectly in this duty that prospective jurors can conceal racial bias with impunity, the judge’s failure violates the defendant’s right to a fair and impartial jury and renders the ensuing trial fundamentally unfair.”

The Judicial Council, Scotland noted, has adopted guidelines as part of the Standards of Judicial Administration on how to inquire about racial bias among prospective jurors. Those guidelines call for a neutrally stated inquiry as to whether a juror’s judgment might be affected by the fact that a lawyer, party, or witness is of a different race or religion, or has a different lifestyle, the presiding justice noted, not for telling venire members to lie.

By telling potential jurors to lie about their biases, Scotland elaborated, the trial judge “irremediably tainted the trial by making it impossible for the parties to know whether a fair and impartial jury had been seated.”

Once jurors were told they could lie, the jurist said, there was guarantee they “would tell only the kind of lie Judge O’Flaherty wanted, i.e., a false excuse not to serve as a juror.” A panelist might have, for example, felt it was okay to conceal bias in order to serve, Scotland reasoned.

Another with telling jurors to lie, Scotland went on to say, is that it “could deprive the parties of information necessary to make informed tactical decisions.” Lawyers, he reasoned, need to know the true attitudes of prospective jurors in order to properly evaluate whether to move for a change of venue or to quash the venire, who to exercise peremptory challenges against, whether to advise a client to negotiate a plea, who to call as witnesses, and what topics to cover in asking questions.

Beyond practical considerations, the jurist said, “the instructions to lie during voir dire infected the entire trial process with the unacceptable notion that lying under oath may be appropriate.”

The case is People v. Mello, 02 S.O.S. 1683.


Copyright 2002, Metropolitan News Company