Monday, September 10, 2007
Page 3
C.A. Pans Judge’s Off-Record Conversations With Jury in Murder Trial
By a MetNews Staff Writer
A San Diego Superior Court judge’s conversations with jurors in a murder trial, with no attorneys or court reporter present, constitute prejudicial error, the Fourth District Court of Appeal ruled Friday.
“We conclude that [Judge John M.Thompson’s] act of engaging in private, unrecorded discussions with the jurors while the jury was deliberating was highly improper and requires reversal of [Matthew Ray] Bradford’s conviction,” Justice Cynthia Aaron wrote for Div. One.
Bradford is serving a 40-year-to-life sentence for the 2003 murder of Pedro Lopez. Witnesses testified that Bradford, a member of the Up in Smoke gang, shot Lopez, who was with the Sherman gang, after another Sherman gang member struck Bradford in the front yard of a home where members of both gangs had been attending a party.
Bradford testified that he pointed and shot in the direction of some Sherman gang members, trying to scare them away after the altercation, but that he did not intend to kill anyone and did not see anyone hit.
The problems with the jury, Aaron explained for the Court of Appeal, began on the second day of deliberations, when jurors reported being deadlocked 6 to 6 on the charge of first degree murder and that they were having difficulty with the definition of intent, “particularly express intent,” as well as with the “reasonable person” standard.
After conferring with counsel, the judge went into the jury room and had the first of what would eventually be six unreported conversations with the jurors, after telling counsel he intended to give the jury an example of express malice that counsel had agreed upon.
The judge subsequently recessed the courtroom, and went back into the jury room. The record, including a settled statement, indicates that he went into the jury room twice more that day; and then twice the next day.
A short time after the judge’s last visit with the jury, which apparently again involved a discussion of express malice, the jury returned a verdict finding the defendant not guilty of first degree murder, but guilty of second degree murder, with a finding that the defendant personally and intentionally discharged a firearm, causing death or great bodily injury.
The defendant’s unreported interactions with the jury were “unorthodox,” Aaron wrote, adding that the judge’s inability to precisely reconstruct his comments for the record left the court with no choice but to reverse the conviction.
The justice rejected the argument that defense counsel was aware of what the judge was doing and thus waived the defendant’s right to object on appeal.
There was no evidence of a waiver of the right to have counsel present during jury instructions, the justice said, explaining:
“Despite the fact that Judge Thompson told counsel that he intended only to provide the jury with ‘an example of express malice,’ before his first unreported exchange with the jury, once in the jury room, the judge admittedly did more than simply give the jury an example of express malice. Additionally, apart from acquiescing in the judge’s plan to provide the jury with an example of express malice, the record does not demonstrate that counsel affirmatively authorized the judge to engage in other unreported communications with the jury, and the judge never requested additional authorization or consent from counsel to enter the jury room. Rather, the judge appears to have made a unilateral decision to go into the jury room multiple times to respond to the jury’s questions.”
The case is People v. Bradford, 07 S.O.S. 5627.
Copyright 2007, Metropolitan News Company