Metropolitan News-Enterprise


Monday, March 1, 2010


Page 3


C.A. Overturns Conviction Because of Juror’s Talks Outside Court




A juror’s repeated conversations with a friend about the child molestation case he was hearing prejudiced the defendant, requiring a new trial, the Fourth District Court of Appeal ruled Friday.

Div. One ordered a new trial for Robert Cissna. The panel said the San Diego Superior Court judge who sentenced him to six years in prison for continuous sexual abuse of his granddaughter erred in ruling that the presumption of prejudice arising from juror misconduct had been rebutted.

“Because the conversations with the nonjuror were pervasive, focused on deliberative matters concerning the merits of the case, and included discussions of the defendant’s decision not to testify, the misconduct was prejudicial,” Justice Judith Haller wrote for the court.

“The conversations interfered with the deliberative process and the right to have the case decided by twelve impartial jurors,” the justice continued. “When even one juror lacks impartiality, the defendant has not received a fair trial.”

2006 Arrest

Cissna was arrested in 2006, after his granddaughter told her parents that he had molested her on several occasions, beginning in 1998 when she was 7 years old. Prosecutors filed an eight-count information charging the defendant with continuous sexual abuse between August 1998 and June 2001, and with seven specific offenses alleged to have occurred between July 2001 and December 2002.

The granddaughter testified at trial that the defendant molested her, both at his home in another county and at the grandparents’ home. She said she did not tell anyone at the time, although she later told two friends.

She only told her parents what happened, she said, after her mother found an account of the molestations that she had written in her diary. The diary entry was admitted over the objections of defense counsel, who argued that if the single entry was to be admitted, the entire diary should be discoverable.

The judge denied discovery after reviewing the diary in camera and determining that it included nothing else relevant to the case.

Jurors found Cissna guilty of continuous sexual abuse, which requires proof the defendant molested the victim on three or more occasions over a period of not less than three months, but deadlocked on the other counts. Judge Michael D. Wellington dismissed the deadlocked counts and sentenced Cissna to the low term.

Counsel for the defendant later moved for a new trial, offering declarations by a juror and the juror’s friends in which the two acknowledged that they talked every day about the case during the testimony; that they discussed what motives the girl might have to accuse her grandfather; and that when the juror told his friend the defendant might not testify, the friend reminded him of high profile defendants who “got off the hook” after not testifying.

Comments Acknowledged

The juror’s friend further acknowledged making the comment that “guilty people do not testify” and expressing the opinion that if Cissna were not guilty, he would testify, and said he had discussed much of the evidence in the case with the juror.

Wellington ruled that while the juror had engaged in misconduct, it was normal to engage in speculation as to the defendant’s motive for not testifying, and that the juror had not been swayed by his friend’s comments, so the verdict was not affected.

Haller, noting that the burden of refuting the presumption of prejudice resulting from juror misconduct is a heavy one, said the prosecution did not meet it in this case.

“This is not a case where a juror inadvertently or briefly mentioned something about the case to an outsider,” Haller wrote. “...Juror D.’s intentional and persistent disregard of the court’s instruction not to discuss the case—and in particular not to discuss the case with a nonjuror—creates a substantial likelihood that he also gave short shrift to his duty to follow the court’s other instructions.”

‘Substantial Probability’

The tenor of the conversations revealed by the declarations, Haller added, suggested “a substantial probability that Juror D.’s impartiality towards the defendant was compromised.” The state Supreme Court, she noted, has held that the accused “is entitled to be tried by 12, not 11, impartial and unprejudiced jurors.”

The justice went on to say that the trial court erred in denying discovery of the contents of the alleged victim’s diary.

The prosecution’s introduction of an entry from the diary constituted a sufficient waiver of the victim’s privacy to permit review of the entire diary by the defense, Haller said.

The justice wrote:

“The People have not identified any compelling interest in shielding the diary from examination by the defense. Notably, the defense is not seeking a ‘fishing expedition’ in documents in the government’s possession, but is merely seeking access to materials used by the prosecution at trial. The courts recognize that a trial court’s in camera review is not a full substitute for review by an advocate; thus, there must be some justification to foreclose the latter. No such justification has been presented here. The appropriate balancing of the parties’ respective interests warrants providing the defense with access to the diary for purposes of reviewing it for material relevant to the defense, subject to appropriate protective orders fashioned by the trial court to maintain S.’s privacy.”

The case is People v. Cissna, 10 S.O.S. 1011.


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