Metropolitan News-Enterprise


Tuesday, January 15, 2019


Page 1


Court of Appeal:

Jurors’ Conversation Outside Chambers Should Have Triggered Inquiry


By a MetNews Staff Writer


A man’s murder conviction for the killing of his brother has been overturned by the Third District Court of Appeal based on the judge’s failure to look into a report of a conversation by four jurors in a courthouse hallway.

“[T]he trial court did not adequately address jury misconduct,” Justice Elena J. Duarte said in an opinion filed Friday, adding:

“As a matter of law, this raises a presumption of prejudice.”

The opinion reverses the conviction of Andy Hem, who was found guilty of voluntary manslaughter in the killing of his brother. Hem contended the incident, which occurred while the siblings were intoxicated, had been justifiable self-defense; the prosecution argued it was first degree murder.

Duarte said that “did not adequately address jury misconduct,” which raised the presumption of prejudice as a matter of law.

Nature of Misconduct

During deliberations, the jury asked several questions of the court. It inquired about several factual issues and also asked:

“If you believe its 2nd degree murder does that mean its automatic man-slaughter?”

 San Joaquin Superior Court Judge George J. Abdallah replied, in a written answer: “No.”

The jury then indicated it was partially deadlocked, checking a box on a form note that it had “agreed upon a verdict” but writing in that it “cannot reach a further agreement.”

Before addressing the note, defense counsel recounted on the record, outside the presence of the jury, an incident related by another San Joaquin public defender, Elvira Lua.

Lua had overheard four jurors in Hem’s case talking in the hallway, outside the presence of the rest of the jury. The four men mentioned being “worried about letting him out so he could kill someone else’s kid, but that they could otherwise live with the manslaughter if the answer from the court is yes.”

Motion for Mistrial

Hem’s lawyer moved for a mistrial, noting the court had instructed the jury to “deliberate inside the presence of the jury room….”

The prosecutor ultimately accepted Lua’s summary of what she heard, but opposed the motion for mistrial.

Abdallah, denying the mistrial motion, said the conversation “is the type of misconduct which could be cured by admonition.” He instructed the jury:

“Also, ladies and gentlemen, I want to remind you, you cannot discuss the case with anyone, including fellow jurors, except when all of you are together in the jury deliberation room. That means even if one of your number wishes to use one of the restrooms provided in the jury room, then you must stop your deliberations until all twelve are together again. Please keep my admonishment in mind.”

The defense renewed its motion the following day, noting that Abdallah had employed the remedy of admonition, but had not undertaken the necessary investigation before doing so. The judge again denied the motion.

‘Demanded an Inquiry’

Duarte said:

“The trial court already knew a full third of the jury had—in violation of their oath—discussed the case by themselves, and further knew that one or more had expressed worry about ‘letting [defendant] out so he could kill someone else’s kid’ and that one or more had been willing to settle on manslaughter, which defense counsel partly (and plausibly) construed as improper consideration of punishment. It was quite likely, not just theoretically possible, that at least these four jurors were discussing what amounted to a compromise verdict in order to assuage a holdout’s concerns. This demanded an inquiry—albeit a careful one, respecting the jurors’ deliberative processes.”

She added:

“Here, it is not clear from the record we have whether any of the jurors did anything that would have disqualified them from further service….[D]efense counsel in this case pressed the trial court to ascertain exactly how far the misconduct extended, but the court refused to inquire. That did not satisfy the court’s duty to ensure the deliberations were proceeding properly, to preserve defendant’s fundamental right to a fair jury determination of the question of his guilt or innocence.”

Presumption Unrebutted

The jurist rejected the government’s argument that the record didn’t show “a substantial likelihood…of prejudice.” She noted that, “as a matter of settled law, defendant established a presumption of prejudice.”

She went on to say:

“The Attorney General primarily relies on the rule that we must presume jurors follow instructions and obey admonitions. That is indeed the normal presumption applied on appeal….But that presumption was already dispelled by the fact that four jurors were violating their instruction not to discuss the case without all jurors being present.”

The case is People v. Hem, 2019 S.O.S. 226.


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