When I first read Gideon’s post at A Public Defender, it had the wrong smell, the wrong feel. It was an awful story, about how a judge refused to remove a juror in a child rape case who made it as clear as possible that she was biased. The point of the story was the efforts put in to create the appearance of rehabilitation.
The prosecutor then asked the juror: “You haven’t heard any evidence. How would you vote?” Juror 112 responded, “I would have to vote guilty.
The judge asked if she could return a verdict of not guilty if the government couldn’t prove it’s case beyond a reasonable doubt.
“I don’t think I would be able to,” the juror replied.
The prosecutor tried again: “Let me ask you this flat-out. Let’s say the victim takes the stand [and] you flat-out don’t believe her. In fact, you think she’s lying. You look at her [and conclude] ‘I don’t believe a word coming out of her mouth.’ Are you going to convict this man anyway?”
Juror 112 responded before the first witness in the case had been called, “That depends. I still feel he was at fault.”
When Gideon wrote the post, it was based on an article in OC Weekly, and Gid’s post was faithful to the article. The article, unfortunately, wasn’t particularly faithful to the facts. There were clear indications of problems, conflicting assertions all over the place, confusing language that failed to reflect how things happen in the course of a trial, and glaring omissions about sequences, most notably that the case had already been through the appellate process and was not on the habe track in federal court, getting smacked by both the magistrate and district court judge.
How, one had to ponder, could so many people get something so brutally obvious and horrible, so terribly wrong?
It was very much a story that needed telling. At least, based on the OC Weekly article. Except that things didn’t happen quite the way the article told them. From the court of appeals opinion in the case, a different version of the story emerges:
The next morning, after opening statements but before the first witness took the stand, Juror No. 112 alerted the trial court she had worked with a teacher at a middle school “who is presently serving his sentence for the same thing that went on here. I did not remember until this morning.” The incident occurred after the juror no longer worked at the middle school; she could not recall the date exactly, but believed it was within the last 10 years. The juror’s daughter had gone to the middle school and had taken a class or classes taught by the offender, but the juror’s daughter had graduated from the school when the incident occurred, and there was never any question the daughter might have been a victim. The juror raised the prior incident with the trial court, wondering “I — I don’t know if that will, you know, make me not a valuable jury member or . . . .”
And the rehabilitation, following her admission:
The prosecutor asked the juror how she would vote if asked to do so “right now,” and the juror responded, “Knowing your opening statements, I would have to say guilty[,]” but clarified she would have to hear all of the evidence before reaching her decision. For example, in response to a hypothetical the prosecutor posed in which “I didn’t prove to you anything that I said in my opening statement” and “the girls come in” and admit “I made it all up[,]” the juror stated she would not find defendant guilty. She noted that in a health class for her special education students, a social worker had instructed the students that sex with a person five or more years younger constituted rape, but the juror agreed this did not constitute legal advice and it would be improper to apply the social worker’s standard if it differed from the court’s instructions. The juror explained she would scrutinize the evidence for duress, such as whether defendant unfairly used his position of authority. But she would not convict defendant of the charged offenses if the prosecutor did not prove beyond a reasonable doubt every element, which the trial court explained were “all the things the People are required to prove.”
After reading Gid’s post, and feeling that something was seriously awry with the OC Weekly article, I did a quick search for the direct appeal opinion and came up empty. A commenter to Gid’s post linked the opinion, from which the above quotes were taken, and challenged Gid’s response to the myriad questions left open by the OC Weekly article:
It wouldn’t have been a “mystery” if you bothered to research the case.
Doesn’t change my mind.
Nor does it change my mind as to the impropriety of leaving the juror on the panel. For the non-lawyers, when a jury of twelve is selected, alternates are also chosen in case a juror needs to be replaced. Juror 112 was clearly conflicted at best, and deeply prejudiced against the defendant at worst. There is no question she should have been removed, no matter how sincerely she appeared to the judge.
The problem is that the story presented by the OC Weekly appeared incredibly egregious. After reading the appellate opinion, it was not quite the shocker it first appeared to be. To accuse Gid of promoting the story without “bothering” to research is unfair. And it’s not like Gid was the only one who relied on the OC Weekly.
Gid had what appeared to be a reliable source, and he was faithful to it. Perhaps he had the same issue in trying to locate the actual appellate opinion I did. Sometimes, it just doesn’t come up easily, and the question for a blawger is how much effort must be expended to seek primary sources when there is a putatively credible secondary source at hand. Note that this is not how any lawyer does his research for court, but blawging ain’t court. Anyone who wants to conflate the two is just plain wrong.
There is no blame to be had for Gid’s faithful adherence to the story as presented in the OC Weekly, and Gid’s reaction to the decision, like mine, is that it doesn’t change the conclusion. But it’s a reminder that media reports of legal proceedings must always be taken with a grain of salt. The more egregious a story, the more likely they got something wrong. Maybe very wrong. And if it feels wrong, feels as if there are inexplicable gaps that make no sense, it may be worthwhile to walk away, no matter how good a story it otherwise appears.
Update: And the OC Weekly, via Gideon, after being slammed for not being faithful to the appellate opinion, goes to the transcript to make yet another critical point:
So it seems that the Weekly went and got copies of the transcripts, which record everything said in court and reviewed them. That’s where they found these quotes1 that somehow didn’t make it into the judicial opinion.
Why is that? Probably because the quotes omitted from the opinion, but included in the Weekly article are devastating to the logic that permits denial of Velasco’s argument. If you don’t acknowledge the flaws in your position, then your position has no flaws.
Appellate courts have long had a nasty habit of sanitizing the record of what happened below so their decisions seem above reproach. While this doesn’t cure the glaring omission in the OC Weekly’s recitation, it may well mean that it was far closer to truth than the appellate opinion.
Update 2: Attached is the Report and Recommendation of Magistrate Judge Alicia Rosenberg, that was adopted by Judge J. Spencer Letts, and includes the relevant portion of the trial transcript. The OC Weekly’s description is looking hard to dispute right about now, but at least we finally have the source material available before the California appellate court did its job as janitor and cleaned up the trial court’s mess.