I have never been afforded the privilege of serving on a jury – which I think is a bit unfortunate – and as long as I am in this line of work, I probably never will. So on Monday, when I was called to jury duty, it would be only the second time I have ever gotten as far as the courthouse and, on Monday, I would get to experience what probably very few ever have.
I have been critical of the funding mechanism to build the new courthouse but, as someone who spent many many hours in the old courthouse, it’s an important step up. The old courthouse was antiquated, it was small, they had to transport in-custody inmates through the halls, ingloriously chained together in some ultimate chain-gang indignity.
This courthouse is modern, big and sterile. But it is at least functional. The waiting room for jurors looks like you are in an airport terminal – without the over-priced restaurants. They ask you to be there at 8 am. I ended up explaining to the potential jurors around me why the process was taking so long, and when we were likely to get called into court.
Finally, just after 9:30 or so, my group was called into Department 7, and Samuel T. McAdam was the judge. The case was Bryan Silva, a meth-for-sale case. The prosecuting attorney was Robin Johnson and the defense attorney was Deputy Public Defender Peter Borruso.
I had considered asking for a hardship waiver. Less than three weeks before our big fundraiser, the sole full-time employee of the Vanguard – plus I have children that I have to transport to and from school throughout the day. My wife had to drop the kids off and pick them up on Monday, causing her to miss portions of work.
However, after listening to the requirements for a hardship, and realizing there was zero chance I would be selected to actually sit on the jury, I figured I could wait an extra hour or two because this was as close I would get to the process.
The key question was going to be, would I be part of the 24 people out of 61 (reduced to 58) prospective jurors to get called to the box. If I were called to the box, the game would be on, and the Deputy DA would be forced to get me out of the box.
So sure enough, I was one of 14 people called to actually sit inside the jury box. The first round of questions were introductions. We were asked if we knew either of the attorneys – I knew Robin Johnson a little from covering a lot of her trials. I knew Peter Borruso casually, as well. He had started off as an intern in the public defender’s office, and we used to chat when I was covering cases.
He then came back as a full-time public defender, and I covered a few of his cases. As I put it, we didn’t socially hang out, but I knew him in a professional capacity. The judge had me briefly explain for the record what I did, and I kept it vague.
There was also an active police officer among the prospective jurors, who was very familiar with Robin Johnson and aware of Mr. Silva’s case. It also turned out there were a number of people who either themselves or their spouses had had criminal charges against them – it seemed like a lot of people just among the 24. One guy had a whole string of pending cases against him, and I’m guessing he didn’t last much longer than I did in the jury box.
Where things got interesting was after the first round of questions. The attorneys gathered with Judge McAdam and I could kind of sense what was going on. Sure enough, the judge announced that all of the jurors would be sent to the hallway for a break, and they would privately question the police officer and myself.
I went first. I felt I could be fair on a meth case. They were fairly straightforward. The question really would come down to whether the meth he possessed was really for sale or if it was just for personal use. I’d love to see statistics on it, but since Prop. 47 makes possession a misdemeanor, it seems like we have seen a number of rather sketchy possession for sale cases.
Anyway, among the DAs I could have gotten for my jury duty, Robin Johnson was probably number two on the list of DAs who would want me off as quickly as possible. She quickly started questioning me about articles I had written critical of the DA’s office and, in particular, her.
She brought up about five or six, all of them from 2010 or 2011. I have to admit, I was very foggy on some of them, especially about the details of the cases. In several cases, I had to respond with “may” and “it’s possible.”
One question stood out: she said I wrote that she was unethical in a case where one of the witnesses asked where the shooter was, because she did not see him in the room, and the DA had continued to prosecute the case, which was pretty clearly directed toward the wrong person. I’ll get back to this in a moment.
Peter Borruso asked if I felt I could be fair in this particular case, and again, I felt I could be. I also tried to explain that, in the course of reporting on these cases, my job is to be critical and to scrutinize the case. As a juror, my job would be very different.
But look, let’s be honest, if I were Robin Johnson, I would not want David Greenwald on my jury. So I get it.
I was sent out of the room, and we were called back in ten minutes, and Judge McAdam excused both the police officer and me.
After leaving and having lunch with my wife and daughter, I started to get curious about some of the questions Ms. Johnson asked. In particular, she said I wrote she was unethical in two of the cases. So I googled “robin Johnson unethical site:davisvanguard.org.”
While I pulled up a number of cases, most of them said underneath “missing: unethical” – that means that the word “unethical” never appeared in the text. There were two articles that did have “unethical.”
One said that “the DA’s actions are not just questionable they are unethical and immoral.” One problem, I did not write those words, an anonymous poster did. Did Robin Johnson actually read these articles?
According to what I know about the jury selection process, she would not have had a lot of time to research. She might have found out the jury pool in the morning and flagged my name. Or it is perhaps more likely that she simply googled her name and the Vanguard on the spot and saw what I found when I googled.
I found it interesting that every case she pulled up was an older case. The Vanguard was definitely more in the DA’s face early on than I had realized.
But still, the implication of bias implies that we were wrong.
So, take the case of Jesus Solis, which she brought up. Mr. Solis in 2010 stood accused of shooting and killing an individual named Jesus Cortez Heredia last September outside Ortega’s West, a bar in West Sacramento. At one point, he faced the death penalty, but ultimately Mr. Solis had a mistrial, as the jurors ended up hanging 7-5.
According to all witnesses who testified, it was at closing time at the popular bar on a Saturday night in September of 2009 when a fight broke out in the parking lot between two groups of drunk people. But when the authorities began to reconstruct the event, the image became murky. The biggest problem is that no one who testified actually saw the shooter or the gun.
The most dramatic moment came when the key witness, after testifying, asked Robin Johnson if she could ask a question. For reasons not clear, Robin Johnson said yes, and the witness, translated through the Spanish interpreter, asked where the shooter was, because she couldn’t see him in the courtroom.
In the end, the case ended up being dismissed after Mr. Solis was deported to Mexico. Defense Attorney Dean Johansson always maintained during trial that they had the wrong shooter and there really was no evidence tying Mr. Solis to the crime. A key witness in the taped interview with police seemed to implicate two other people, not the defendant.
We were actually surprised the trial hung rather than resulting in acquittal, but in the end, charges were dismissed against Mr. Solis. If our critical analysis of the DA’s handling of this case is evidence of bias, then so be it. But nowhere did I call Ms. Johnson unethical.
One of the first cases we covered involving Robin Johnson was Rudy Ornelas, who was convicted of unpremeditated attempted murder, use and possession of a firearm and assault with the firearm – and was sentenced to 45 years in prison in August 2010.
As the Vanguard reported on July 20, 2010, Mr. Ornelas had been accused of chasing and firing at Abel Trevino, a man he had known for many years, with a loaded 9mm handgun belonging to another acquaintance, Claudio Magobet. The prosecution’s position, with some of the testimony and most of the police reports in support, was that Mr. Ornelas and Mr. Trevino had a dispute over drugs and money.
The defense, however, argued an alternative scenario, supported by witness testimony, including some witnesses who contradicted what they had previously told the police. In that fact pattern, Mr. Ornelas was really just tagging along while Mr. Magobet, owner of the gun, was looking for Mr. Trevino, who had been involved the night before with Mr. Magobet’s then-girlfriend.
We believed that Ms. Johnson had the wrong shooter in the case. Defense Attorney Rod Beede told the Vanguard at the time that the verdict was difficult to take. It looked like the key witness – the potential other suspect – cut a deal to testify against Mr. Ornelas in exchange for leniency in a plea bargain.
“My most intensive grounds for appeal are that the courts are permitting people to testify under plea bargains and under intense pressure to say what the prosecution needs them to say,” said Mr. Beede during the sentencing hearing.
He would add, “Mr. Magobet’s attorney advised him that if he had nothing to offer the prosecution he would sit where Rudy [Ornelas] was. Meaning that Rudy would be blaming Claudio, Claudio would be blaming Rudy, and the jury has a very long history of saying we don’t like either one of these people.”
But while the two articles linked above are critical of the case, neither one accused Ms. Johnson of being unethical, and issues we raised were raised in open court.
There was also the “Taliban case,” which I don’t think she brought up. I did write, “Once again it appears that Deputy DA Robin Johnson has prosecuted the wrong individual. This is the third case we have seen her try before Judge Mock, and the third time we believe that the DA’s Office pressed charges against the wrong individual while the guilty party was let go.” Again, the jury acquitted the defendants of all charges except for a punch thrown by one of the brothers (hit the link above for more details on the bizarre case).
The bottom line, at least for me, is that, while I certainly have no problem if the DA didn’t want me on the jury, I would even have no problem with the judge dismissing me for cause – but I do take exception to the DA putting on the record misrepresentations of things that I have written. I was blindsided by the DDA’s accusations and had no opportunity at the time to look up our articles on these cases, so was not able to respond as completely as I have here.
I don’t believe Ms. Johnson was unethical in those cases, but I do think those cases deserved to be questioned.
—David M. Greenwald reporting
If the deputy district attorney didn’t want you as a juror, all she had to do was dismiss you. She doesn’t even need a reason. She can dismiss without cause.
It seems to me that Robin Johnson was using her position to intimidate you or to discredit you.
Of course, when Robin Johnson uses examples that have not been checked for accuracy, she ended up discrediting herself. Robin just illustrated that she does not do her investigations very thoroughly which seemed to be exactly the problems you wrote about in the articles she cited where she was prosecuting the wrong person.
Maybe one of the attorneys out there can confirm, but I thought the attorneys have only a few “pre-emptory challenges (no need to say why a potential juror is dismissed), but a nearly inexhaustible # if “for cause”. Why give up a freebie if you think you have a lock on “for cause”?
Simple answer is yes. Realistically in a two day trial, probably wouldn’t have made a big difference. But my objection wasn’t that I was dismissed for cause – I would have tried to get me dismissed for cause – it was the mischaracterization of what I wrote.
hpierce
“Why give up a freebie if you think you have a lock on “for cause”?”
I could not possibly have come up with a better illustration of the “gamesmanship” in the winner take all version of our “justice” system. It is clear that none of this is about getting to the truth and a just solution. It is all about the win.
So it is her competence, not her ethics, that you challenge?
;>)/
If I was DA I sure as heck wouldn’t want you sitting on my jury.
I acknowledged that
something to consider: jury duty is a problem for the legal system. getting good and quality jurors is difficult. as a lawyer your case hangs on a jury at least be willing to look at the facts objectively. the da doesn’t want to put someone on there that they believe will not be fair for sure. but the other side of this is that here you have a guy who probably didn’t hae the time to really serve, went through the process, gave up three or four hours of his day, and instead of thanking him for his service, he was treated a criminal would have been with full on embellishments and misrepresentations of the truth. is that really how a citizen should be treated who just volunteered his time?
DP – don’t generally disagree about needing quality jurors, but jury duty is not voluntary. Note that even David thought about the hardship out, but decided there was no way he could qualify. I would also suggest that David is not an ordinary citizen in the eyes of the criminal justice system in Yolo County – he is a citizen that has been a long term critic of the Yolo DA’s office.
my only point is so many people try to avoid service and it is always a huge disruption to people’s lives, families, and careers.
i agree david is not an ordinary citizen and he has been a long term critic of the da’s office. i think his only complaint is the misrepresentation of his views – it probably is more sloppy than malicious, but still…
Adam Smith
“ he is a citizen that has been a long term critic of the Yolo DA’s office.”
In my mind that does not render him capable of addressing the presentation of a case objectively. This is not supposedly about whom the DA does of doesn’t like. It is supposed to be about someone who will listen to the information presented with an open mind and objective perspective.
If I had been one of the attorneys, witha decently strong case, I would have probably had you on the jury. You are a fair person, and trained to look at evidence. I think your conclusions and verdict would be supportable.
If I were the prosecutor, with a weak case, I would have had the deputies send you to China on a boat.
the da’s office probably would love nothing better than to send david to china
“You are a fair person, and trained to look at evidence.” Yeah, right. I have found that both defense and prosecution attorneys almost always find either “for cause” (usually based on employer) or pre-empts, ways to make sure that engineers and scientists are NOT empanelled. Attorneys, generally, particularly in a jury trial (as opposed to a bench trial) appear to want to rely on their persuasion/drama skills rather than facts. Makes engineers (applied scientists) and other scientists a “threat”.
That being said, not sure of the full curricula vitae of David, but “poly sci” is seldom based on looking at and weighing evidence.
Which gets to Mr H’s point, tempered with mine, except for the “fair” point (in the eye of the beholder), he’d be a good juror in many attornies’ view.
I take issue with this comment: “That being said, not sure of the full curricula vitae of David, but “poly sci” is seldom based on looking at and weighing evidence.” That’s exactly what a graduate student in the UC Davis Political Science PhD program does – we collect data, construct models to explain that data, and run the models whether they be regression, econometric, or game theoretical.
hpierce
“both defense and prosecution attorneys almost always find either “for cause” (usually based on employer) or pre-empts, ways to make sure that engineers and scientists are NOT empanelled.”
This I can vouch for. Doctors seem to be assigned to this category as well. I have made it “into the box” twice and been dismissed twice.
David,
How long did the deputy district attorney question you? Was it longer than the policeman?
I think she could have explained the judge why she wanted you excused in a sentence or two. I still think she was either trying to discredit you or intimidate you.
Also, what did the judge do?
I am glad you wrote an article about this incident.
David,
How long did the deputy DA question you? Was it longer than the policeman?
She could have disqualified you with a couple of sentences instead of pulling up articles. I think she was trying to intimidate you are discredit you.
What did the judge do?
I am glad you wrote the article.
I wasn’t in there for the questioning of the police officer, it seemed a comparable time. I think I was questioning for five minutes or so. Whatever the judge ruled, I was not in the courtroom when he did.
, none of prosecutors or defense lawyers are in the compassion business. I think the ministry is in the compassion business. We’re in the legal business.
I hope a few are in the “Justice” business, but the hoping hand seldom fills first.
;>)/
Jerry: agree. My Momma in Memphis used to say: “If you can’t stand the heat, get out of the kitchen.”
You or your proxies have written or implied that the DA’s office is unethical on numerous occasions. Then you try to get all technical as to whether the word “unethical” appeared in an article on Ms. Johnson. Amazing. Did she mention the number of opinion pieces by the SF Public Defender that you have published. Just the upcoming wrongful conviction seminar would seem sufficient to have a judge remove you. Once again you are claiming a DA is unethical in how Ms. Johnson acted in attacking your impartiality.
I’d have no problem if Ms. Johnson had gone the route that you did to show I was partial. But again, my objection here was she misrepresented what I wrote. People posting on here are not my “proxies” anymore than you are the proxy for the DA’s office.
David,
I am not referring to the posters as your “proxies”. I am however referring to the authors of the articles that you post here. You determine what articles are put on the vanguard.
Your article does not include your answer during jury selection concerning her allegation that you alleged that she was unethical. What was your answer to her question? Was it yes, no, maybe, don’t know or something else?
My answer to her was that I couldn’t remember for sure – it was possible. If I were a witness, I would have been allowed to read the article to refresh my memory. I wasn’t afforded this luxury in voir dire and I had a hard enough time remembering details from some of the cases, let alone what I had written about them.
David
Have you ever turned down an article submitted for publication on the Vanguard in which the author was known to you. ?
I can think of twice when the article was over-the-top, personally attacking, and inappropriate. But my general rule is any locally generated article that is submitted will be published as long as the material is acceptable.
“The key question was going to be, would I be part of the 24 people out of 61 (reduced to 58) prospective jurors to get called to the box. If I were called to the box, the game would be on, and the Deputy DA would be forced to get me out of the box.”
Sounds like, in your mind, it was adversarial from the start. You v the DA. Our justice system is not a game.
“I went first. I felt I could be fair on a meth case”
I find this doubtful, based on your own tone.