Pubdate: Sun, 24 Dec 2000
Source: Los Angeles Times (CA)
Copyright: 2000 Los Angeles Times
Contact:  Times Mirror Square, Los Angeles, CA 90053
Fax: (213) 237-7679
Authors: Maura Dolan, Mitchell Landsberg, Times Staff Writers
Bookmark: (L.A. Rampart Scandal)


Only rarely does a judge in a criminal case overturn the verdict
reached by jurors in her own courtroom. Still rarer is the judge who
admits to committing an error so serious it taints a verdict.

Los Angeles County Superior Court Judge Jacqueline Connor did both
Friday night in an extraordinary ruling that overturned the
convictions of three Rampart Division police officers, impressing
legal scholars with both her tightly reasoned legal arguments and her
unusual candor.

At least one scholar, however, questioned whether the judge would ever
have issued such an order had the defendants not been police officers.

"I think it's an excellent thing for a judge to do," said Stan
Goldman, a former public defender who is a professor of law at Loyola
University Law School. "I'm just saying I can't recall another case in
which it was done."

Goldman and other scholars agreed that prosecutors would have a tough
time persuading an appeals court to reverse Connor's ruling. Even one
prosecutor familiar with the case agreed.

"It's a very well-written opinion, and it's going to be very difficult
to go in and say, 'This judge abused her discretion in this case,' "
the prosecutor said, speaking on the condition of anonymity. "And if
you can't prove that she abused it, then the Court of Appeals won't
reverse it."

Although he disagreed with the substance of the ruling, the prosecutor
conceded that Connor "understands the case law, and knows it well,"
and used it to "cover everything the Court of Appeals is likely to

Connor ruled just before midnight Friday in the case--the first to
arise from the scandal in the Los Angeles Police Department's Rampart
anti-gang unit. In her order, she wrote that the jury's verdict had
been compromised by the jurors' apparent misunderstanding of a common
phrase of police slang, and that she had committed a "fatal error" by
not recognizing the misunderstanding.

At the center of her reasoning was the notion that jurors had, in
effect, based their verdict on nonexistent evidence because of the way
they misinterpreted the phrase "with great bodily injury." The
officers were accused of framing suspected gang members by charging
them with committing assault "with force likely to produce great
bodily injury" when, in fact, prosecutors argued, no such assault had
taken place.

In testimony, police fell back on police shorthand--"cop speak," as
Connor called it--and spoke of "assault w/GBI," or "assault with great
bodily injury," even though the law does not require serious injuries
to actually occur.

In affidavits sought by defense lawyers after the verdict, several
jurors said they had been confused by the term and had assumed that,
because the officers were not seriously injured, they must have been
making up the charges against the suspected gang members. In effect,
the judge said, they were relying on "improper facts"--a faulty
understanding of the law.

"The court does conclude that there was jury misconduct, though
unintentional, misguided and inadvertent, in the consideration of
improper facts," she wrote.

Erwin Chemerinsky, a law professor at USC, said he expects Dist. Atty.
Steve Cooley to appeal the decision. But, he said, because the ruling
was so heavily based on the facts of the case, the appeal will be more

"The question on appeal is: Did the judge cross the line in
considering the mental processes of the jury?" Chemerinsky said.

Judge's Decision Likely to Be Questioned

At issue is a section of the state evidence code that bars a judge
from considering the mental processes of the jurors in determining
whether to overturn a verdict.

Connor said she was not violating that section because she was
weighing uncontested evidence that was contained in the jurors'
affidavits, in which some said they could not agree on whether the
ramming incident happened.

"Why they reached this conclusion one way or another deals with
impermissible mental processes," the judge wrote. "The fact that they
did not reach agreement is admissible."

Whether the judge improperly considered mental processes is a close
question, Chemerinsky said. But he noted that Connor made a strong
argument that she was only considering irrefutable facts, not the
jury's internal reasoning.

Connor decided the jury's actions rose to the level of misconduct.
Another judge could have decided that the jury was simply confused and
no misconduct occurred, the law professor said.

"On appeal, the prosecution is going to say that, at worst, this was a
deliberative error and that maybe the jury was confused but that is
not a basis for overturning a verdict. This wasn't

On the defense side, lawyers will argue that the jurors committed
misconduct because they disregarded the judge's instructions.

"I think it is a really close question that could go either way,"
Chemerinsky said.

University of Santa Clara law professor Gerald Uelmen said Connor "may
be right for the wrong reason."

He said he believes the judge violated the "mental processes" code
section. He said it was impossible for Connor to reach her conclusions
about the jury "without discerning their mental processes."

"What the judge is doing here is saying, because they didn't answer a
specific question in a specific way, they engaged in

Even though a Court of Appeal may find she overreached here, appellate
judges might still uphold the overturning of the verdicts on other
grounds, Uelmen said.

The legal scholar said Connor made a compelling case that the
defendants were deprived of notice--the prosecution should have
disclosed to them the theory of the case against them.

Also, he said, the defense may successfully argue that Connor failed
to instruct the jury properly.

It is significant that the judge relied on defense affidavits to reach
her conclusion, he said. Rarely do judges allow defense lawyers to
take affidavits from jurors, Uelmen said.

"I think this is going to be appealed, and then an appellate court
could very well agree with her conclusion but find that it was for the
wrong reasons."

Goldman, the Loyola professor, said he was surprised and impressed
that the judge admitted error. The jury in the case had asked for a
"read-back"--a rereading of testimony--regarding the issue of "great
bodily injury." She had denied the request because she thought the
issue was irrelevant. She later realized her mistake--but too late.
Just as she was about to authorize the rereading, the jury announced
that it had reached a verdict, she said.

Calling her decision a "fatal error," she wrote: "Certainly, had the
court been aware that the jury assumed there was such a charge as
Great Bodily Injury, the rulings as well as the instructions would
have been different," she wrote.

"That's very noble," Goldman said. "It doesn't occur very often.
Judges don't often admit their errors."

While he praised her ruling, he questioned whether the average
defendant could ever count on a judge's overturning a conviction on a
similar basis. His reaction to the ruling, he said, reminded him of
his reaction to the U.S. Supreme Court's ruling that ordered Florida
officials not to recount ballots in the recent presidential election
because it would violate the "equal protection" guarantees in the

He said he was cheered to see the court rely on "equal protection,"
but questioned whether the ruling would be "a precursor to a whole
series of equal-protection cases to be strongly issued by the U.S.
Supreme Court in the future dealing with election rights."

"Similarly," he said, "I find it unlikely that this will be the
precursor to a whole series of new approaches taken in examining jury
verdicts after the fact."

Connor also said the case had been tainted by the way in which the
prosecution handled the potential testimony of former police Officer
Rafael Perez, whose admissions of wrongdoing and allegations against
colleagues led to the investigation of Sgts. Edward Ortiz and Brian
Liddy and Officer Michael Buchanan. Prosecutors, concerned about
Perez's credibility, waited until near the end of the trial to
announce that they would not be calling him as a witness.

"This put the defense in the position of having to anticipate and set
forth the foundation for impeachment of the people's famous witness
and devote substantial trial currency, time and energy as well as
their credibility into their defense strategies," the judge wrote.
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