Metropolitan News-Enterprise


Friday, August 29, 2003


Page 1


S.C. Slams Judge’s Handling of Voir Dire, Overturns Death Sentence


By DAVID WATSON, Staff Writer


The state Supreme Court yesterday overturned a death sentence, saying a since-retired Los Angeles Superior Court judge mishandled voir dire and wrongly excused a potential juror based on his qualms about the death penalty.

Chief Justice Ronald M. George, writing for himself and three colleages, said Judge Richard P. Kalustian—who retired May 8, 2001—“conducted a seriously deficient examination” of a potential juror in the special circumstances murder trial of James Matthew Heard. But three other justices said Kalustian acted properly in excusing the unnamed juror.

Heard was convicted of murdering and sexually assaulting his girlfriend’s 11-year-old daughter after a cocaine and malt liquor binge. Prosecutors contended the excused juror expressed reservations about voting to execute a defendant on a jury questionnaire, but George noted the questionnaire had been lost and was not included in the appellate record.

Juror’s Response

He said the juror responded to Kalustian’s questions by asserting his ability to follow the law and the judge’s instructions. In order to justify excusing him, George explained, Kalustian would have had to examine him more closely and establish that his views would “prevent or substantially impair” his ability to perform his duties—the standard mandated by Wainwright v. Witt (1985) 469 U.S. 412, People v. Crittenden (1994) 9 Cal.4th 83, and People v. Mincey (1992) 2 Cal.4th 408.

Kalustian’s error was “reversible per se with regard to any ensuing death penalty judgment” under U.S. Supreme Court precedent, the chief justice declared.

He observed:

“If the trial court remained uncertain as to whether [the potential juror’s] views concerning the death penalty would impair his ability to follow the law or to otherwise perform his duties as a juror, the court was free, of course, to follow up with additional questions. The prosecutor similarly could have pursued the matter with further questions. Based upon the responses...set forth in the record, however, we conclude that there is not substantial evidence to support a determination that [he] harbored views that would prevent or substantially impair the performance of his duties so as to support his excusal for cause.”

‘Dismay’ Expressed

George expressed disappointment in the trial judge’s performance, noting his error would require a repetition of the penalty phase of Heard’s trial, unless prosecutors elect to settle for a term of life imprisonment.

He wrote:

“[W]e note our dismay regarding the adequacy of the trial court’s efforts to fulfill its responsibilities in selecting a jury in this case. Unlike other duties imposed by law upon a trial court that may call for the rendition of quick and difficult decisions under unexpected circumstances in the midst of trial, the conduct of voir dire in a death penalty case is an activity that is particularly susceptible to careful planning and successful completion. In California, numerous resources exist that assist trial courts in conducting voir dire in death penalty trials, and in preventing the type of readily avoidable error that was committed in this case. In view of the extremely serious consequence—an automatic reversal of any ensuing death penalty judgment—that results from a trial court’s error in improperly excluding a prospective juror for cause during the death-qualification stage of jury selection, we expect a trial court to make a special effort to be apprised of and to follow the well-established principles and protocols pertaining to the death-qualification of a capital jury. As the present case demonstrates, an inadequate or incomplete examination of potential jurors can have disastrous consequences as to the validity of a judgment. The error that occurred in this case—introducing a fatal flaw that tainted the outcome of the penalty phase even before the jury was sworn—underscores the need for trial courts to proceed with special care and clarity in

conducting voir dire in death penalty trials. The circumstance that the error in this case was committed by a trial judge with substantial experience in criminal law renders the voir dire examination at issue all the more inexplicable and disappointing.”

The chief justice’s opinion was joined by Justices Joyce L. Kennard, Kathryn M. Werdegar, and Carolos Moreno.

Justice Janice Rogers Brown dissented, joined by Justices Ming Chin and Marvin Baxter, writing that the chief justice’s comments “unfairly disparage” Kalustian, whom she described as a “conscientious bench officer.”

She added that the comments “highlight the majority’s own failure to impose the self-restraint required of a reviewing court in these circumstances.”

Brown said the record made by Kalustian supported his decision to excuse the juror.

“In my view,” she said, “it is entirely reasonable that, in light of the voir dire—including an evaluation of credibility and demeanor—the court could conclude [the prospective juror’s] view would substantially impair the discharge of his duties. On this record, that assessment is entitled to our deference.”

Kalustian, reached in Northern California where he said he now frequently sits on assignment in nearby superior courts, said he had not read the Supreme Court’s decision.

Overruling trial court judges is “what the Supreme Court does,” he commented, adding:

“It’s not my style to criticize somebody for disagreeing with me.”

Pasadena attorney Jonathan P. Milberg, who represented Heard on appeal, said the ruling marks the first time since 1980 the high court has overturned a death penalty based on excusal of a juror for death penalty views.

“I think things kind of got a little lax,” he commented, noting that he has great respect for Kalustian.

The record in the case, the attorney said, presented the “best facts I could have asked for on this issue.”

Milberg said he believes that court’s ruling will cause judges and prosecutors to “be more careful in jury selection in these cases.”

The case is People v. Heard, 03 S.O.S. 4752.


Copyright 2003, Metropolitan News Company