Prosecutor Fails to Unseat Juror

Judge Golden began by saying that the usual way to deal with such a matter was to raise the issue in the judge's chambers, out of the public view, instead of filing a motion placed in the public file where it was discovered by this reporter. Chastened, Williams said he had no objection to having the hearing in chambers.

Defense co-counsel Philip DeJong rose to his feet and said that since the prosecution had made its challenge publicly -- and in keeping with the defense's consistent position that they want an open and public trial -- he wanted the hearing in open court. Judge Golden ordered a short recess while he read an extensive brief written by a member of Bear Lincoln's defense team.

Said Williams, "At the time, that set off alarm bells in my head, but I left it alone at that point. Since then, she has exhibited emotional reactions in the jury box that none of the other jurors have, and that are just not called for. The most obvious was ... when [Bear Lincoln's 61-year-old mother] testified that she was pushed around by an officer, and the juror broke into tears."

Judge Golden asked if Williams was stating his own observations or repeating those of Officer Nalini Gupta. Williams said he had not made any personal observations, but was relying on the sworn declaration of Gupta's that he had seen the juror's reactions in court. Gupta said the juror cried when the photo of Acorn Peters' body lying in the roadway was shown to the jury, and that she had been "teary eyed" during part of the defense opening statement. He said the juror had laughed along with defense counsel and witness Lucille Lincoln when the subject of the testimony was a shoot-to-kill order. Gupta also said no other jurors reacted in this way.

Williams summarized his argument by saying that she was the only juror who was upset by outside events, the only juror exhibiting inappropriate emotional reactions to testimony, and the only juror who seemed not to focus on the witness giving testimony, but allowed her eyes to wander around the courtroom, sometimes staring at the widow of Deputy Davis. He said he was not asking the judge to disqualify the juror based on Gupta's declaration alone, but that it should provide enough of a justification to call the juror in and question her.

DeJong said that what the prosecutor was really suggesting was "for the court to go on a fishing expedition," hoping the court will find a reason to excuse the juror. Williams is basing the request on the observation of a jail transportation officer with doubtful qualifications to make any judgments about the jurors. DeJong said he was offended at this kind of behavior, both of the prosecutor and of the transportation department, and said it reminded him of previous problems with the department -- referring to alleged jury tampering by transportation officer Brandon VanCamp, which is still under investigation. "In my view this is nothing more than an attempt to tamper with the jury yet again."

"Their complaints are absurd. They complain that the juror got teary eyed when told that 90 percent of the Native Americans living in Round Valley were killed in a ten-year period. Does an emotional reaction like that disqualify someone from serving on a jury?" Does an emotional reaction to Leonard Peters lying dead in the roadway disqualify a juror? She had an emotional reaction to being told that Lucille Lincoln, an arthritic older woman, was pushed to the ground. Does that disqualify a juror?"

As for the juror laughing when the shoot-to-kill order was discussed, DeJong said, "I was sitting at the defense table and I can tell your honor that no one was laughing. That's an absurd allegation! It didn't happen." About her being upset by the person outside court, DeJong said he too would be upset if the incident happened to him, and she was the only juror exposed to that behavior, so it was nonsensical to say she was the only one who reacted to it. He argued that there are no grounds to call the juror in for questioning, and to do so would have a heavy impact on her.

DeJong concluded: "My own sense of fair play is offended by this motion, this procedure, even the fact that this motion was made in this way. We picked the jury; we did it fair and square. The prosecutor is trying to exercise yet another peremptory challenge under the guise of this motion."

Williams argued there would be no harm in finding out if the juror pays attention to the evidence or not, and there was evidence that she did not. He agreed that the emotional reactions of the juror did not of themselves disqualify her. His point was that she had reactions that none of the other jurors did, and he argued that it was cause enough for the court to investigate whether she could dispassionately weigh the evidence. He also was concerned whether she was "tuning out the evidence."

The judge also questioned Gupta's competence to make a comparative judgment of the emotional reactions among the jurors, pointing out that he himself would be unwilling to do that because he lacks the competence and would be overwhelmed at the idea of questioning 17 jurors about their reactions to particular evidence. The judge knows of no law requiring any uniformity of emotional reaction among the jurors, and said that on the contrary a jury is supposed to represent a cross-section of society. He said he's very reluctant to bring the juror into the courtroom and ask her to explain her emotional reaction to specific bits of evidence -- that a "Pandora's box" would be opened if he did, and her usefulness as a juror would be destroyed.

He concluded by denying the motion unless new and persuasive evidence is brought before him.