Cameron Brown Retrial: Aftermath

Monday, October 5th, 2009 This is an unedited, draft entry.

I almost didn't make it to court on time this morning. Mr. Sprocket had jury duty at the Metropolitan courthouse so we car-pooled. Whenever he drives we are always getting out the door many minutes later than we originally planned. The goal was to get me in front of the Criminal Court Building at 8:15 am and he would then have time to get to the other courthouse on South Hill Street.

More than two-thirds of the way downtown, I come to find out that Mr. Sprocket forgot to bring his jury summons. This is what gets him into the parking lot for free as well as speed through signing in. He's thinking he needs to drop me off at the nearest train station and go back and get the form. I told him it's better to show up without it (serve) verses spending an hour or more going back to get the form and being late for service. He did tell me later that he had a drama with the parking lot attendant because he didn't have the form to get his free parking. Fortunately, everything worked out for him, and for me too.

When I arrive around 8:35 am in Department 107, the hearing hasn't started. Dr. Adams is there and he tells me that the sheriff's are short staffed. They need two people to get Brown transferred, and one of them has to be a supervisor to film the defendant being transported with the camcorder. So we wait, and wait. When I arrived, DDA Craig Hum was at the prosecution table. Pat Harris and Lara Yeretsian as well as their clerk were in the courtroom. Mavis is the court reporter up. At 8:47 am, Brown is finally brought into the courtroom. Patty is in the second row, sitting in the aisle. She's wearing a nice gray jacket and matching pants with an orange scoop neck top.

Brown comes out, smiling but he's not wearing his jacket or tie. Judge Pastor addresses him. "Mr. Brown, take a moment to put on your coat and tie and then we'll begin."

As Judge Pastor begins to voir dire Juror #1, Brown's parents enter the courtroom and sit beside Patty Brown. Judge Pastor asks Juror #1 about the situation that prevented him from coming to court on Friday.

There was a bar fight and a shooting on his street and LE closed off several streets declaring it a crime scene. The street ended up being closed until 6:00 pm that evening. With the first question about the paper being brought into the courtroom the juror states he has no idea who brought in the paper. He states that since he was the one holding the door for everyone, he was the last one inside 108's jury room and it was already out and on the table by then.

Juror #1 states that he thinks it was read out loud by the jury foreman.

JP: You saw it?

J#1: Yes.

JP: Did you see it highlighted by anyone?

J#1: No.

JP: Did you see it passed around?

J#1: I believe so. [...] I think it was dropped (the issue of malice) after that. [...] I think one of the jurors said we shouldn't be bringing in (things) from the outside.

Judge Pastor then in very strong terms asks the juror that if he was instructed to disregard anything he heard, may have heard or read, could he disregard. The juror replies, "Of course."

JP: The court does admonish you in the strongest terms... [...] Do you understand and accept that?

J#1: Yes I do.

He orders him not to discuss what they talked about with the other jurors.

I believe at this point Judge Pastor talks about about what he believes happened. He believes there was clear jury misconduct.

JP: I'd like counsel's thoughts.

CH: I don't think there's necessity for any more inquiry. I think the court has admonished the jurors in the strongest terms. [...] I think any prejudice that may have risen from that was successfully cured of that. [...] Except for extremely [?]... I think we need to bring them in a s a group and admonish them again.

JP: Mr. Harris?

Harris states he agrees with the prosecutor that there was jury misconduct and that he doesn't believe further investigation is necessary. However, he states that he doesn't believe that it's been cured. I believe Harris states, "I feel like a mistrial is warranted." (I think this is just proforma to secure the appellate record.)

Judge Pastor then goes into a lengthy description as to all that had happened since last Thursday. He describes the jury misconduct in detail and reads what was done to investigate it.

JP: The court finds (the following?) [...] Juror #9 did in fact conduct misconduct. He violated repeated admonishments of this court.

Judge Pastor then clearly states for the record that the definition that was brought into the jury room from the Columbia University Dictionary is a ".....complex intermingling of civil and criminal (law) definitions of malice. [...] Quite frankly, it's wrong. [...] It does not reflect the law (or) CALJIC, 8.10 or 8.11. [...] Juror #9 committed misconduct. [...] Juror #7 committed misconduct by reading it out loud.

Judge Pastor then reads the numbers of the jurors who read the paper on their own.

JP: Number one said they heard it. Number three said they "turned it off." [...] There's some ambiguity as to who may have highlighted the document. It may have been (number 6? or number 5.?) [...] Number 2 did not hear it. Number 8 did not read it but heard it. [...] Number twelve was the juror who was the one who instigated the inquiry. [...] The (?) is, what to do. [...] There is a presumption of prejudice. [...] I do not believe the exposure was lengthy or extensive to this (? incorrect ? definition). [...] There wasn't much deliberation at all. [...] It appears that after the material was read, the discussion was cut off at an (earliest time?) [...] And that's significant. [...] I do believe all the jurors that spoke to us. [...] I found them to be candid and honest as I observed them. [...] Was exposure to the online printout inherently prejudicial? [...] I do not find that that exposure was so prejudicial that it will prejudice the case. [...] I do not find that.... [...] I do not find that it is substantially likely that any juror is biased from the insertion of this information. [...] I am satisfied at this point. [...] If the individual jurors are prepared to continue, [...] if there isn't [....] then I will..... (I missed the rest of the sentence.)

JP: Mr. Harris and Ms. Yeretsian requested several times [the jurors be told the information is incorrect] and I am prepared to say that it is absolutely incorrect and inaccurate and wrong. [...] I'm totally prepared to do that. [...] I will strongly instruct the jury to disregard...

Judge Pastor then brings in a case to cite for his rulings. People V. Barton, 37 Cal Ap. 4.....

CH: I think that's the appropriate response.

I believe I have a note that says (Harris no additional...)

JP: Motion for mistrial is denied.

Judge Pastor then references other cases he had mentioned last week. Harper, Barten (sp?) vs Vasques, Harris.

The jurors are brought back in.

Judge Pastor addresses the jurors in the strongest terms.

JP: There was misconduct in this case. No one should have brought in information from the Internet into this case. [...] From the onset, I admonished you not to access the Internet. I admonished you not to utilize a dictionary. [...] We talked to all of you. [...] I believe what you told me. [...] Not only was there a violation, but a significant number of jurors didn't think it was significant enough to bring it to my attention. [...] The bottom line ladies and gentlemen, whatever you may have read from that is wrong, and that is precisely why we tell you not to consult (information off the Internet). It's garbage. It's full of inaccurate information. [...] When a person needs surgery, you don't do it on yourself.

Judge Pastor admonishes the jurors very forcefully that the information is wrong.

JP: The only law that is applicable is the law I have given you. [...] I am no admonishing you in the strongest possible terms you must not consider anything you read, may have read or heard, from this document.

The jurors are excused to go deliberate again. As I was leaving the courtroom, I ask DDA Hum if there were any specially worded instructions like there was in the first Spector trial. He said there were a few word changes, but they were minor and they did not have anything to do with malice. The instructions for malice were the standard instructions. I decide to take the train home. Once I get off my stop on the Orange Line I decide to get in some exercise and walk home, about a mile and a half. As soon as I got home and got into comfortable clothes, I received a call that a verdict had been reached. I immediately got dressed again and started searching for people that could give me a ride. I was lucky, I was able to arrange a ride into downtown from a friend about fifteen minutes later. When I get back downtown, I run into Dr. Carroll Adams in the cafeteria and he kindly bought me a salad since I forgot and left my lunch back home in the fridge.

At 1:25 pm, I get into 107 and sit in the front row beside Carroll. The room quickly fills up with the accredited press. Denise Nix is here along with Greg Risling from the Associated Press. I see Claudia from KFWB and Terri Keith from City News. There are several camera operators and still photographers here that I've never seen before. Brown's parents are here sitting with Patty in the second row, aisle seat. They look solemn.

It's now that I notice for the first time, these exquisite figurines on top of the court reporter's desk. Normally, there is a computer there but this time, it's just Mavis and her reporting machine and that's how I noticed them. There's a metal elephant, and two interesting pieces out of carved wood, a second elephant and the other looks like a rhino. There's also a uniquely painted wood monkey head finished with a fabric dress. Carroll tells me that Judge Pastor brings his staff various items from the trips he takes.

Vania Stuelp from the courts Public Information Office (PIO) arrives and so does Jack Leonard from the Los Angeles Times. PIO Department Head Alan Parachini's here also. Lots more reporters and cameramen. Doug Kriegel from local NBC Channel 4 is sitting in the front row next to the gentleman sitting next to me.

Harris and Yeretsian come out from the holding cell area. More and more press show up. Hum paces in the well, something I've seen him do often. Jane Robison, the press secretary for the DA's office is here sitting next to Kriegel. Alan Parachini comes out of the Judge's chambers and right afterwords, Vania makes an announcement to the press that there will be no texting during the hearing. All cell phones and blackberries must be completely turned off.

I then ask the man next to me what's his name and what news agency is he with. He's with the local Channel 11, (FOX) and his name is Chris. He states that his station covered the first trial. I introduce myself and tell him I covered most of this case until I got sick during the defense case. I also mention my coverage of the second Spector trial. Doug Kreigel then says he's heard of me and asks if I would be willing to talk about the case after the verdict. I tell him that I'm not interested in appearing on camera. He tries to cajole me into doing an interview but I stand firm. The courtroom is now almost completely filled with reporters.

At 1:40 pm, Ms. Benson says, "Ms Theodora (Mavis, the court reporter) and counsel, we need you to come in chambers please."

For the next ten minutes a buzz goes around the courtroom. The camera men are told to leave. I don't see this; Carroll tells me. I look back a few rows at Katie and Lisa (my trial watching friends I met during Spector 2). Katie tell me that it's going to be a hung jury. Katie saw that DDA Hum came over to Sarah and overheard him give her the news. Sarah and her supporters, (her husband Greg and other friends) appear to be in shock. And the tone among the defense attorneys is changed. Yeretsian is smiling. Harris is quite happy, too. I'm in shock too and confused because the message was clear that there were three buzzes by the jury in courtroom 108.

At 1:50 pm we are on the record. Judge Pastor starts out by explaining what happened. Late in the morning he was notified by the bailiff in 108 that the jury had buzzed three times. That's the signal that they had reached a verdict. The bailiff inquired if they had reached a verdict and the response was "Yes."

The jury had regrouped and #7 sent a note to the judge. The note said (this is not exact) We feel that further deliberations will not be (fruitful?). We feel there [...] that the jury is deadlocked. Judge Pastor asks which alternates are here. Alternate #2 and #5. Alternate #4 is not here. It's officially a hung jury. The defense team looks joyful. Sarah is on the verge of tears. I have no idea why she isn't bawling her eyes out by now. Now I get the full note.

We the jury unanimously feel that further deliberation will not sway us from a ununanimous verdict.

When the jury is brought in, Judge Pastor questions the foreman, Juror #7.

JP: NO unanimous verdict?

J#7: No sir.

JP: Do you feel anything further by the court ....

J#7: No sir.

JP: Is this jury hopelessly deadlocked?

J#7: Yes.

One by one, Judge Pastor addresses each juror and asks them a series of questions.

JP: Is there anything the court could do, further reading of testimony, further jury instructions or further argument by the attorneys?

He goes onto to ask them if they are deadlocked and one by one they all agree.

Juror #7, when asked why they buzzed three times, states that since they couldn't reach a verdict, that "was" a verdict. (I'm visibly shaking my head at this answer when he gives that explanation.)

Judge Pastor then tries to ask the foreman what was the split. After a few questions, the juror still doesn't understand what Judge Pastor is asking him. The accredited press beside me is astounded that this juror doesn't get it. Judge Pastor resorts to telling the juror that there were four options. First degree, Second degree, Involuntary and not guilty. I'm having a hard time not laughing because this is a serious matter but the juror is quite slow. I tell Chris beside me that this juror is a medical doctor.

We then learn that the split is six to six. Six for second degree and six for involuntary. I'm in major shock. They all thought he was guilty, but could not agree on what charge.

Judge Pastor finds that there is nothing further that the court could do.

JP: Court further finds the jury is hopelessly deadlocked. There is no unanimous decision to any crime that is [alleged?] or lesser crime. [...] ... good cause to call a mistrial.

Judge Pastor asks the foreman about the first degree charge. The juror states the jury was not deadlocked on first degree, but they did not fill out the jury forms and sign that as a verdict.

Judge Pastor asks to see the attorneys. Afterwords, Judge Pastor addresses the jurors and their right to talk to anyone they want to or not talk to anyone from the prosecution, defense or media. It was there call.

The jury is excused. Judge Pastor tells Brown that he's entitled to a retrial in 60 days. That clock starts now. There will be a hearing in 15 days for motions. Judge Pastor and the attorneys go over their calendar for motion dates. He tells the defense that they need to file their motion (to dismiss I believe) by 4:00 pm on October 13th. The People have until 4:00 pm on October 26th to file their reply to the defense motion. The defense then has two more days after that to respond to the People's motion. They are looking at October 29th, to hear motions, and that day would be day 24 of 60. (Denise Nix of the Daily Breeze in her report of the hearing states it will be on October 28th.)

Outside on the Temple Street plaza, Juror #7 speaks to the press and tells the press that at one point, there was a single juror who voted for first degree. He also stated that it wasn't so much "how" Lauren ended up at the bottom of the cliff, but they could not agree on intent. Afterwords, Pat Harris speaks to the press.

Several jurors met with Sarah to apologize to her that they could not reach a verdict. Juror #9 was crying and hugging Sarah and Sarah's friend. I heard him state that it was the younger jurors that did not get it, that they did not have the life experience (to see this case as murder). Juror #4 also spoke to Sarah. I saw Juror #2 come over and it appeared he had tears in his eyes also. Juror #8 came over to speak to Sarah and I also saw this juror speak to the defense attorneys after that.

By the time this was all over, it was 3:00 pm. Mr. Sprocket was still on jury duty and I thought I would get in another walk and head down to the fabric district at 9th and Wall Street, since I need to price out a 60 yard roll of fleece for my upcoming fleece and flannel blanket sale. I got some good price offers from several different wholesalers. Around 4:30 pm, Mr. Sprocket picks me up and I tell him everything that happened. We are both very sad for everyone involved in this nine year old case.

When I got home, I realized that Judge Pastor may have used the old jury instructions (CALJIC) instead of the new, CALCRIM, because he referred to "8.10 and 8.11" during the morning hearing.

A comparison of CALJIC to CALCRIM at this link, text copied below with the added commentary from the link.

CALJIC 8.10 MURDER--DEFINED (previous instruction; alternatives relating to felony murder and killing of fetus have been omitted for clarity of presentation)

[Defendant is accused [in Count[s] _______] of having committed the crime of murder, a violation of Penal Code section 187.]

Every person who unlawfully kills a human being with malice aforethought is guilty of the crime of murder in violation of section 187 of the Penal Code.

A killing is unlawful, if it is neither justifiable nor excusable.

In order to prove this crime, each of the following elements must be proved:
1. A human being was killed;
2. The killing was unlawful; and
3. The killing was done with malice aforethought.

CALJIC 8.11 "MALICE AFORETHOUGHT"--DEFINED

"Malice" may be either express or implied.

[Malice is express when there is manifested an intention unlawfully to kill a human being.]

[Malice is implied when:
1. The killing resulted from an intentional act,
2. The natural consequences of the act are dangerous to human life, and
3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.]

[When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.]

The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed.

The word "aforethought" does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act.

CALCRIM 520. Murder With Malice Aforethought (new instruction)

The defendant is charged [in Count __] with murder.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant committed an act that caused the death of (another person/ [or] a fetus);

[AND]

2. When the defendant acted, (he/she) had a state of mind called malice aforethought(;/.)

[AND

3. (He/She) killed without lawful excuse or justification.]

There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.

The defendant acted with express malice if (he/she) unlawfully intended to kill.

The defendant acted with implied malice if:

1. (He/She) intentionally committed an act;

2. The natural consequences of the act were dangerous to human life;

3. At the time (he/she) acted, (he/she) knew (his/her) act was dangerous to human life;

AND

4. (He/She) deliberately acted with conscious disregard for (human/ [or] fetal) life.

Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.

COMMENTS: Note the very impersonal phrasing (and passive construction) in the CALJIC instruction: "Malice is express when there is manifested an intention unlawfully to kill a human being." In other words, the defendant must have intended to kill the victim. I suppose that this is becoming my mantra: if that is what you mean, why not just say so?
Also, observe again the abstact quality of the CALJIC instruction. It requires the jury to decide whether "a human being" was killed, and that the killing was done with malice aforethought. Of course, what the jury has to decide is whether the defendant killed a human being, and whether the defendant killed with malice aforethought.
The new instruction continues to use the distinction between express and implied malice, even though it seems to me that this is burdening the jury with unnecessary terminology. I can see no reason for the jury to decide whether malice was express or implied--this unnecessarily complicates their task. All they have to decide is whether the defendant killed intentionally, or intentionally did an act that he knew was dangerous, etc. But the distinction is so ingrained that--after receiving public comment--the committee decided to retain it.

LA Times article by Jack Leonard

Associated Press article by Greg Risling

CBS 2 News Video Report

KABC Video Story