Legal Experts Believe Judge Erred in Dismissing Juror in Death Penalty Case

When Judge Richardson dismissed Juror No.11 on Monday morning, granting her request for dismissal based on what she claimed to be a language barrier, it created several red flags for the Vanguard, which questioned why she seemed able to understand sufficient English to render a guilty verdict, but not enough to participate in the deliberation on the penalty phase.

Juror No.11 sent the Court a hand-written note asking to be excused from further deliberation and replaced with an alternate juror.

Juror 11 wrote, “Your Honor: I was raised in foreign country and it is very difficult for me to make a dessision from point of view of this country. I tried my best, but now I see that I am dragging other juries down. I am asking you to replace me by alternative juror, please.”

Natasha Minsker told the Vanguard that this situation is highly unusual.

“I have never seen a death penalty case where a juror was removed from the second phase of the trial for ‘language barriers,’ ” she said.

“The Judge and the Prosecutor have made a huge mistake,” Ms. Minsker told the Vanguard.  “If the juror was not competent for the penalty phase, then she was not competent for the guilt phase.”

“They have made it very likely that the guilt [verdict] will be reversed,” she added.

“One of two things are happening here.  Either the juror in reality [should not] have been sat on the jury – in which case the guilty verdict will have to be reversed,” Ms. Minsker said.  “Or the Judge and the Prosecutors are so eager to get a death sentence that they have found this a convenient reason to excuse her from the jury and substitute another person so they can get their death sentence.”

“The result is the guilt conviction is now in doubt and likely to be reversed,” she concluded.  “It is highly likely that the conviction will be reversed because the judge has now declared that the juror for language reasons is not competent to serve on the jury, she should never have been there for the guilt verdict and the guilt verdict is no longer valid.”

During his argument, District Attorney Jeff Reisig argued, “Remorse is a very key concept for this jury to understand,” and he argued, “If you don’t understand the basic language, that should be dismissal for cause.”

But Natasha Minsker argued that the guilt phase of the trial actually has a lot more complicated legal concepts than the penalty phase.

“The guilt phase is where you’re dealing with complex legal issue like intent and reasonable doubt,” she said, if you don’t have the language skills to understand that, then you shouldn’t be on the jury.  If you do have the language skills to understand that, then you are competent to do the penalty phase.  It’s exactly the same standard.”

The other media outlets covering this case contacted other experts, almost all of whom agreed with Ms. Minsker’s legal opinion.

For instance, the Daily Democrat talked to Michael Vitiello, a criminal law professor at Sacramento’s McGeorge Law School who called it “really unusual” for a juror to be excused at this juncture.

“If someone has enough English ability to get through the guilt phase, it’s hard to believe she lacks the ability to get through the penalty phase,” he told the paper Monday afternoon.

Likewise, the Davis Enterprise spoke with Ruth Jones, a criminal law professor at McGeorge School of Law in Sacramento, who told the paper that the ruling by Judge Richardson, “raises a number of potential appellate issues,” including whether there was “sufficient evidence to support the release of a juror during the penalty phase.”

The paper reported, “Excusing jurors during a penalty phase is not unusual, Jones said, but often it is due to an issue that was not present in the guilt phase – an illness, for example – or because the juror demonstrates an unwillingness to apply the law.

In this case, “it has to be clear that it’s because of the language difficulty, and not because of disagreement with other jurors,” Professor Jones said.

The paper continued, “That, in turn, raises a second appellate issue – the juror’s participation in the guilt phase of the case despite the language barrier.”

“If she didn’t have enough command of English during the penalty phase, should she have been able to participate in the fact-finding phase?” Professor Jones told the Enterprise.

UC Davis law professor Jack Chin also spoke to the Enterprise.  He suggested that the dismissal of the juror made sense under the circumstance.  But he told the paper, “But do the reasons for the dismissal indicate there’s a problem with what the juror has already done?”

“Chin said it’s possible the juror found the guilt phase to be a more straightforward legal process, only to stumble upon more complex issues once the trial moved into the penalty phase,” the Enterprise reported.

“That may be what tripped her up,” he said. In any case, “it would have been better if this had happened before the guilt-phase verdict.”

Professor Jones also spoke to the Sacramento Bee, adding, “If the juror had problems understanding the facts during the guilt phase, the defendant could get a new trial.”

The Bee reported, “She questioned whether Richardson had done enough to determine if the woman truly had language problems or was simply at odds with her colleagues, and the jury was at an impasse.”

“You can’t just use this as an excuse,” she said. “You don’t have to have perfect English.”

The Bee also spoke with Standford criminal justice professor Robert Weisberg, who told the paper, “The judge may have a picked a smart way to negotiate the legal thicket,” but added, “if he were Topete’s lawyer, he would appeal the judge’s ruling ‘in a second.’ “

The Bee continued, “Still, Weisberg said the judge was probably smart to make his decision on the basis of language instead of dealing with the more difficult issue, expressed in the woman’s note, of cultural differences.”

“An appellate court would be less likely to reverse if a judge has a reasonable-sounding reason, even if it is a bit of a pretext,” Weisberg said. “The judge will probably be OK.”

On or off the record, every attorney we spoke with asked essentially the same thing, how she could render a guilty verdict but beg off for the penalty phase.  One can argue, as Jack Chin did, that the juror found the guilt phase more straightforward, and perhaps the evidence there was overwhelming. On the other hand, as Natasha Minsker argued, the concepts there are actually a lot more challenging.

It is therefore possible that, if the juror really was having difficulty with the language, perhaps she did not know what it was she should have understood.

In any case, we tend to believe that this was a convenient excuse or a “pretext” for what actually happened.  We believe that the real issue is that she was uncertain about the verdict to render in the penalty phase, the other jurors were ganging up on her, and she decided to withdraw rather than deal with that ordeal.

Natasha Minsker said, “It sounds like she wanted to get off the jury, it’s very stressful being on a death penalty case and its reasonable that somebody would not want to be forced to make that decision and [would want to] get off.”

In the questioning by Judge Richardson, the juror indicated that the language barrier was “partially” the issue and that sometimes she cannot understand the words because she said some words you cannot translate.

She seemed to get talked into taking that path, as if she quickly saw it as the easiest way to be dismissed.

Judge Richardson really did not probe her sufficiently on whether there were ideological issues that were causing the problems with her colleagues.  He tried to avoid substantive issues, but still needed to determine whether language was really the root cause or whether it was something else.

Finally, as we mentioned previously, while the woman spoke with an accent, her English was actually pretty good and she was easy to understand.  She had no problem discussing the issues with the judge.

This is speculative on our part, but a more solid foundation is laid that if she did not have sufficient grasp of the language to render a verdict in the penalty phase, then her decision in the guilt phase should at least be in doubt.

—David M. Greenwald reporting

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