Thursday, July 31, 2003
Retrial Barred After Judge Dismissed Juror for Bias, C.A. Rules
By DAVID WATSON, Staff Writer
Retrial of a criminal defendant is barred by double jeopardy where the trial judge, after seating all alternates, removed a juror for bias over the objections of both parties, the Fourth District Court of Appeal ruled yesterday.
The judge’s action did not meet the test of “legal necessity” adopted by the Supreme Court in People v. Hernandez (2003) 30 Cal.4th 1 and Curry v. Superior Court (1970) 2 Cal.3d 707, Justice Patricia Benke wrote for the court’s Div. One.
“While the court’s determination of bias might support removal during voir dire, once the alternates were exhausted during trial, the trial court’s unilateral determination of bias is not a proper basis for removing a juror and a trial judge acts at his or her peril in doing so,” Benke said, adding:
“If the defendant wishes to proceed with the biased juror, he or she is entitled to do so.”
San Diego Superior Court Judge Frank A. Brown had already seated both of the alternate jurors during Amar Naim Evans’ robbery trial when he received a note during deliberations from one juror questioning the impartiality of another. Brown spoke with the challenged juror, who admitted she had been a suspect in a similar case 35 years earlier and had forgotten to mention it during voir dire.
The juror contended she could still be impartial, but Brown excused her on his own motion despite objections from both the prosecutors and Evans. When neither side would stipulate to continuing with an 11-member jury, he declared a mistrial.
Evans sought a writ of mandate after his motion to dismiss was denied. The appellate court granted the writ, issued a stay, and yesterday directed that the charges be dismissed.
Benke pointed out that in Curry the Supreme Court held that a “mere error of law or procedure...does not constitute legal necessity.”
The court in Curry explained:
“[E]ven when a palpably prejudicial error has been committed a defendant may have valid personal reasons to prefer going ahead with the trial rather than beginning the entire process anew, such as a desire to minimize the embarrassment, expense, and anxiety....These considerations are peculiarly within the knowledge of the defendant, not the judge, and the latter must avoid depriving the defendant of his constitutionally protected freedom of choice.”
Benke noted that the Supreme Court had barred retrial under similar circumstances in Larios v. Superior Court (1979) 24 Cal.3d 324. In that case, the justice observed, a juror who had conducted outside research about the case was excused after the alternates had been exhausted.
While a juror’s inability to perform his or her duties is a factual question to be decided by the trial judge, Benke said, in this case “no juror suffered from an inability to serve and there was no showing that the jury was unable to agree.”
She rejected the prosecution’s attempt to distinguish Larios on the basis that the bias there favored the prosecution, while in Evans’ case it favored the defendant.
“This is a distinction without a difference under either federal or California law,” the justice declared, pointing out that California double jeopardy protections are stronger than those provided by the U.S. Constitution
“The mistrial here, because it was based on a bias in favor of the defendant, helped the prosecution, not the defense. Thus, even under the more limited double-jeopardy rules available under federal law, petitioner, unlike the petitioner in Larios, would be entitled to an order dismissing the complaint.”
Justices Gilbert Nares and Alex C. McDonald concurred.
The case is Evans v. Superior Court (People), 03 S.O.S. 4017.
Copyright 2003, Metropolitan News Company