Tuesday, March 27, 2007
Prosecutor’s 9/11 Reference in Closing Argument Held Misconduct
By TINA BAY, Staff Writer
A prosecutor committed misconduct when he argued to the jury that the plight of home invasion robbery victims was analogous to that of 9/11 hostages, this district’s Court of Appeal ruled yesterday.
Disagreeing with Los Angeles Superior Court Judge Robert O’Neill, Div. Six concluded Los Angeles Deputy District Attorney Theodore Lamb “crossed the line” when he used the events of 9/11 to make his point in closing argument in the robbery trial of Marcos A. Zurinaga and Jared M. Villery. The panel affirmed O’Neill’s order denying the defendants’ motions for a new trial, however, on the ground that they were not prejudiced by the misconduct.
Zurinaga and Villery were tried in March 2005 in connection with the September 2002 break-in at a Playa Del Rey duplex where a number of Loyola Marymount University students resided at the time.
The prosecution contended that Zurinaga, wielding a samurai sword, and Villery, armed with a semiautomatic pistol with a silencer attached to the barrel, broke into both units of the duplex, threatened the occupants they encountered with their weapons, and ultimately drove away from the residence with numerous bags full of stolen electronics and personal valuables.
The incident allegedly began with their entry into one of the units through an unlocked front door. Upon encountering the unit’s residents—then-LMU students Randall Marsh, Robb Monkman, Peter Wells and Jonathan Hughes—and their acquaintances Kris Maddox, Dave Manzur and Chris Ryden, Zurinaga and Villery locked the door, ordered the occupants to sit on one of the couches in the living room, and told them to hand over any valuables on their person.
Villery then ordered Wells gunpoint to accompany him upstairs, where he went through the three bedrooms and filled his duffel bag with various items, including two laptop computers, a DVD player and a game console. After bringing Wells back downstairs, Villery took Monkman upstairs for about five minutes and then brought him back to the living room.
The defendant then led Marsh to the next door unit at gunpoint and ordered him to punch out a window adjacent to the sliding glass door, which was locked. Villery then returned Marsh to the first unit, exchanged weapons with Zurinaga, grabbed Hughes and took him to the adjacent unit, where he ordered him to fill a bag with numerous items.
Villery filled several additional bags with items the unit’s four bedrooms, and then forced Hughes and the adjacent unit’s occupant, Stuart Purdy, to go to the first unit and sit with the others in the living room.
While Villery was in the adjacent unit, Zurinaga had ordered the occupants of the first unit to put various consumer electronic items in a duffel bag.
An hour after the burglary and robbery first began, two of Hughes’ friends, Julie Maggio and Peter Hoffman, stopped by Hughes’ unit to pick him up. They were met by Villery and Zurinaga, who ordered them—Hoffman at gunpoint—to join the other occupants in the living room.
A similar fate was met by another friend, Thomas McGuire, who had walked over to the first unit to visit its residents.
Before leaving, the defendants allegedly took the victims’ drivers’ licenses from their wallets and told them to write down their personal information. They told them they had a bullet for each of the male victims, and that the victims would be killed if they called the police.
Contrary to the prosecution’s case, Villery testified that he and Zurinaga went to the duplex in order to sell fake marijuana to a “Pete,” who had arranged for the defendants to deliver marijuana to him and his friends and roommates. The defendant allegedly gave “Pete” what appeared to be a pound of marijuana in a sealed bag in exchange for $4,000, then remained in the unit for about half an hour while the buyers smoked some real marijuana that Villery had brought with him.
At that point, Villery claimed, he and Zurinaga left with the money.
In closing argument, the defense lawyers characterized the prosecution’s case as untenable on the ground that none of the so-called victims of the burglary/robbery resisted during the two-hour span of the encounter, even though they outnumbered and outsized the alleged invaders.
The defense asserted that the alleged incident should only have taken 15 to 20 minutes, and also noted that no one was hurt and “nothing of significance” was taken.
Reference to 9/11
Lamb responded in his closing argument by referencing the 9/11 terrorist attacks—he showed the jury a chart listing the airlines, flight numbers, departure time, and number of passengers and crew on each of the four planes involved—and stating that one of the flights “only had four men” attacking it.
At that point, the parties approached the bench and the defense lawyers—Peter Knecht for Villery and Jason K. Feldman for Zurinaga—moved for a mistrial on the basis that Lamb’s detailed and prolonged reference to 9/11 facts was improper.
O’Neill denied the motion, ruling that Lamb’s 9/11 reference was a “proper analogy” and “appropriate illustration” because the event was a matter of common knowledge and addressed the question, implied by the defense, of why the victims did not start a takeover since they outmanned the defendants.
After the mistrial motion was denied, Lamb resumed his description of the “terror” experienced by the 9/11 victims, and pointed out:
“[O]f these four airliners on only one of them did the passengers rise up, and that was the last one when they had apparently been calling their loved ones, calling emergency numbers, and learned what happened to the other planes.”
The jury found the defendants guilty as charged and, after denying their motions for a new trial on the ground of prosecutorial misconduct, O’Neill sentenced both of them to over 20 years in state prison.
In an opinion joined by Div. Six Presiding Justice Arthur Gilbert and Justice Paul H. Coffee, Justice Steven Z. Perren wrote that Lamb’s closing argument was “unseemly” and “inflammatory” and should have been prevented by O’Neill. Instead, he said, the trial judge “emboldened” Lamb to continue his 9/11 reference.
The specific data Lamb presented to the jury about the 9/11 flight numbers and passengers and crew were not a matter of common knowledge, Perren reasoned, and the 9/11 analogy was “inapt” because none of the 9/11 victims had any opportunity to escape their captors.
“We also consider it naive at best—and disingenuous at worst—to suggest, as the prosecutor did, that the mere mention of 9/11 does not continue to invoke fear, dread and anger in the listener,” he wrote.
The jurist continued:
“Given the ongoing sensitivity of the subject matter, prosecutors who undertake to inject those facts into a case must use caution. The tactics employed by the prosecutor in this case, which included a visual aid, accompanied by an argument that is impossible to imagine the ‘terror’ that the victims in this case suffered as a result of appellants’ crimes, were simply beyond the pale.”
But Perren said that because evidence of the defendants’ guilt was “overwhelming,” they were not prejudiced by Lamb’s misconduct and their new trial motions were properly denied.
In an unpublished portion of the opinion, Div. Six upheld other rulings by O’Neill and affirmed the defendant’s convictions.
Lamb told the MetNews he “accept[s]” the Court of Appeals ruling that he committed misconduct, but explained:
“It had been about three and a half years since the events [of 9/11]…Given the lapse of time and the number of times we’d seen the thing played back on television I didn’t believe that it was inflammatory at the time.”
Feldman, who represented both defendants on appeal, told the MetNews he felt the court’s opinion sends a “mixed message” to prosecutors.
“It defines prosecutorial misconduct and points out an example of when it occurred, but yet it allows the conviction to go forward,” he said. “I think that the deterrence is unclear.”
The finding of serious prosecutorial misconduct should have been enough to entitle the defendants to a new trial, Feldman asserted, adding he wanted to appeal the ruling.
The case is People v. Zurinaga, B184288.
Copyright 2007, Metropolitan News Company