Court of Appeal:
Doctor’s Minimal Aid to Alternate Juror Didn’t Require Declaring Mistrial
Hoch Says It Matters That Doctor Was Expert Witness, Not Defendant in Malpractice Case
By a MetNews Staff Writer
A judge did not abuse her discretion in declining to declare a mistrial after a medical doctor, testifying as an expert witness for the prosecution, rushed over to an alternate witness who appeared to be asleep but did not awake after the judge called her name four times.
The defendant, Donte Latraille Revels, was on trial for child abuse leading to death and child abuse when Dr. Bennet Omalu, who had performed the autopsy, left the witness box to test the alternate juror’s pulse and might have helped her sit up. He did not perform CPR or any other form of medical treatment.
San Joaquin Superior Court Judge Charlotte J. Orcutt questioned the jurors. Each said the incident would not affect an assessment of Omala’s credibility.
A motion was made by the defense lawyer for a mistrial on the grounds that the testimony would, in fact, be accorded undue weight by jurors in light of his assistance to one of them. The motion was denied, and Revels appealed his convictions on the basis of that denial.
“The jurors’ ability to remain impartial is the issue at the heart of this case; whether the jury could remain impartial in the face of an expert forensic witness providing some aid to an unconscious juror and how to review their assurances they could remain so,” Justice Andrea L. Hoch said in yesterday’s opinion.
She noted three out-of-state cases in which it was held that a mistrial should have been granted where a doctor aided an ailing juror. Hoch wrote:
“We do not disagree with the conclusion of those cases that medical assistance furnished by a doctor, who is a party in a medical malpractice case, to a juror in the presence of the jury compromises the integrity of the trial. However, Dr. Omalu was not a defendant in a civil malpractice case; he was testifying as a forensic expert witness as to both the cause of death and likely timing of the injuries inflicted. Given his role in this case, as opposed to that of a defendant doctor in a medical malpractice case, taking the pulse of an unconscious juror does not implicate the same concerns of inevitable bias noted in those cases.”
Discretion Not Abused
The jurist went on to say:
“Based on the fact that Dr. Omalu’s conduct as a doctor was expected of him as a doctor, the treatment provided was minimal, and all of the jurors assured the court under oath that the incident would not affect their ability to be impartial or evaluate Dr. Omalu’s testimony, the trial court denied the motion. Based on the trial court’s findings, supported by substantial evidence in the record, and the deference they are entitled to, we conclude there was no abuse of discretion in denying the motion for mistrial.”
The case is People v. Revels, 2021 S.O.S. 6074.
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