†††††††††††††††††††††††††††††††††††††††††††††††† THE COUNSELORíS CORNER

In our society, the right to a fair trial is deemed so important that due to a mistake made by a judge, a convicted child molester may well go free.In this matter, Manuel Hernandez was on trial for multiple counts of child molestation.In October of 2000, he was found guilty of fifty-two different counts, covering sexual penetration by a foreign object, sexual abuse of a child younger than fourteen, and lewd acts on a child.So what went wrong?The Second District Court of Appeal overturned the guilty verdicts ruling that the judge trying the case committed reversible error when he dismissed a female juror during the trial.Why did the judge dismiss the juror?He did so after the juror indicated she thought both the judge and prosecutor were smirking at the defense during the trial.The Court of Appeal stated ďas a result, appellant was denied his federal and state constitutional right to a trial by a fair and impartial jury, and we see no choice but to reverse his conviction despite the heinousness of the crimes involved.Ē

I am with the Court of Appeal on this one.The Court concluded that the trial court judge did not act maliciously; however, the Court felt that it was clear this juror was sympathetic to the defense, and when the juror voiced her concerns about what she perceived to be inappropriate behavior on behalf of the judge and the prosecutor, she was then bounced from the jury.The removal of the juror took place after almost all of the evidence had been presented.

The successful argument on appeal was that of double jeopardy, which indicates that an individual cannot be twice tried for the same crime.Therefore if this ruling holds up there can be no retrial.

In this case, the juror called out the Judge and indicated she wanted to clarify a few matters.She then told the judge she did not like the prosecutorís tone while cross-examining a defense witness, and she believed that both the prosecutor and the judge were smirking and making faces, and that she was bothered by this.Judge Arnold responded that the juror was mistaken.The juror was then asked the question that always gets asked in this type of situation, which is whether or not the juror had formed an opinion about the outcome of the case and whether or not the juror could remain open-minded throughout the pendency of the case.The juror said that she could.

At that point, the juror was asked to leave the courtroom and both the judge and prosecutor indicated that the juror appeared frantic and tortured, and the judge concluded that the juror would no longer be able to remain impartial and do her job appropriately as a juror.The juror was then removed from the trial.

There have been decisions rendered in the past reversing trial court decisions such as this one which have not gone down the double jeopardy road.These decisions have overturned trial court convictions, however, they have NOT FOUND that the person cannot be retried.In this case, the Court of Appeal decided that the Courtís action ďtilted the jury toward the prosecution, thereby insuring the appellantís conviction.Ē

The Attorney Generalís Office is now considering what to do, and whether or not to appeal the Courtís ruling.One way or another, it appears clear that the conviction will remain overturned; however, the Attorney Generalís Office may attempt to overcome the double jeopardy part of the ruling and if successful be permitted to retry Mr. Hernandez.

After his convictions, Mr. Hernandez was sentenced to forty-three years in prison.As was stated earlier, these were clearly heinous crimes.

My hope from all this is that courts err to the side of caution when it comes to the removal of a prospective juror.There have been recent decisions permitting courts to remove jurors who are not deliberating with the other jurors, and, while I occasionally find those troubling, I do understand them.Perhaps Iím from the old school which feels that each juror has the right to his or her opinion, and as long as a juror is listening during deliberations, that is all that I would require of the juror.I would not make active participation a requirement if the juror has made up his or her mind relatively quickly.That aside, however, in a case such as this when you have a juror who is clearly pro-defense, it is not the role of the judge to remove that juror and leave eleven jurors on the panel who have not complained about the behavior of the judge and/or the prosecutor and then add an alternate juror who may well be pro-prosecution.

In my career as a psychotherapist, I have a patient who found himself in the criminal justice system , and at his first trial, the jury voted eleven to one to convict him of that with which he was charged.Eleven to one equals a hung jury, and the prosecution decided to re-try the case.At the re-trial, all twelve jurors voted not guilty, and my patient was acquitted.If the one pro-defense juror had been removed in trial number one, there never would have been a trial number two, and my patient would have been convicted.I am not offering an opinion on whether or not he did what he was accused of doing, or whether or not Mr. Hernandez was guilty of what he was accused of doing; letís assume for the moment that both were.It is absolutely crucial that if people are to be convicted, they are convicted the right way.What makes this state and country special is that we do things differently than anywhere else in the world.There are other systems similar to ours, such as the British; however, ours is unique.Unfortunately, every once in a while, in order to maintain our uniqueness, we are going to have to stomach and accept a difficult result so that the greater principle can be upheld.



Charlie Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Unger, Danis & Grover, and a psychotherapist at the Foothill Centre for Personal and Family Development.Mr. Unger writes a bimonthly column on legal and psychological issues.He can be reached at charlie@charlieunger.com or at (818) 244-8694