Metropolitan News-Enterprise


Friday, April 21, 2017


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Juror’s Racially Charged ‘Experiment’ Results in Reversal

Effort to Compare Panelist’s and Defendant’s Reactions to Accusations Went Awry, Panel Says




A juror who used racially charged language as part of an experiment designed to demonstrate that the defendant’s reaction to being accused of child molestation was consistent with guilt rather than innocence committed fundamental misconduct, the Fourth District Court of Appeal ruled yesterday.

Div. One, in an opinion by Justice William Dato, said John Landis Wismer is entitled to a new trial on five counts involving sexual conduct with two girls, ages nine and 13. Dato said the experiment    in the jury room was “misconduct of a fundamental nature that requires reversal of the judgment.”

Wismer was charged with six offenses, including unlawful penetration of a child aged 10 or younger, and committing lewd acts on a child under the age of 14. Jurors found him guilty on five of the counts, and San Diego Superior Court Judge Kenneth So sentenced him to 50 years to life in prison.

The girls are the children of a friend and business associate of Wismer, who was a frequent dinner guest of the family. The charges relate primarily to incidents that occurred at their home when Wismer came over the night before Thanksgiving 2013.

Misconduct Allegations

The older child, identified as A.S., said Wismer stroked her thigh while they were out on the patio after dinner. The younger child, I.S., said that late that night, as she and Wismer were watching a television movie—while her father slept nearby—Wismer put his hand underneath her blanket and began touching her, causing her to get up and go to the bathroom.

She later returned to the couch, she said, and Wismer repeated the conduct.

The following night, I.S. told her parents what happened. They then questioned A.S., who told them about Wismer touching her the previous night, and about an earlier incident in which Wismer touched her underneath her shirt as she sat in his car.

The parents called the police, who began an investigation. As part of the probe, police arranged for the girls’ father to place a recorded phone call to Wismer and tell him what the girls said.

Wismer denied the claims, even after he was falsely told that he was recorded on a video camera.  At trial, he presented a defense based on good character, and presented impeachment witnesses who said the girls and their parents did not have a good reputation for honesty.

‘Natural’ Response

During deliberations, jurors argued as to whether Wismer had a “natural” response to being accused on the phone of having molested his friend’s children. The jury foreperson, identified in the opinion as being of Asian descent, conducted what she characterized as “an experiment” designed to show his reaction was not natural.

She later explained the experiment in an interview with defense counsel and a defense investigator. According to their declarations, she said she falsely accused a Hispanic male juror of having slapped her behind, and said she wanted to put his “Mexican burrito into her chicken fried rice.”

The juror’s own declaration confirmed what the defense reported, but So eventually denied the defense motion for a new trial, saying the discussion was not misconduct, but rather the jurors’ “attempt at a further critical examination of the evidence...that was produced at trial.”

Dato, writing for the Court of Appeal, disagreed. There is, he said, a distinction between scrutinizing evidence, including “by testing all reasonable inferences,” and going beyond the evidence to conduct a new investigation of the case.

The foreperson’s experiment, the justice said, introduced matters that were not part of the courtroom presentation and “became new evidence [jurors] were not entitled to consider.”

The remaining jurors, he explained, were asked to compare the Hispanic juror’s reaction to the foreperson’s accusation to Wismer’s reaction to his friend’s, even though the former was not in evidence and the defense had no opportunity to address it.

“It is really no different than if Juror No. 8 found a psychological study on the internet examining how people respond to false allegations of sexual misconduct and played a video clip of a test subject’s reaction for her fellow jurors,” Dato wrote.

In an unpublished portion of the opinion, Dato said the trial judge erred in excluding two items of impeachment evidence that may be offered at retrial. One is the proffered testimony of a teacher who claims I.S. falsely accused a boy at school of threatening to kill her in 2011, the other was the testimony of a school district employee that A.S. made an allegation of bullying that the district investigated and found false.

The case is People v. Wismer, 17 S.O.S. 2106.


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