No, that’s not a typo in the title. I’m paying homage to the Fresno Bee’s latest story about “juror misconduct.”

Frankly, I’m grateful that Pablo Lopez is a Fresno Bee reporter, and not a judge, lawyer, or juror on any of the cases about which he reports.

(Update 2015: The Fresno Bee frequently “disappears” stories. Some can be found in the Wayback Machine. Most cannot. Some of the links from this story have failed, and have been removed.)

You may recall that yesterday, I blogged about the incidents involving Judge Oppliger, who, while serving as a jury foreman, “arguably” engaged in misconduct by sending emails to 22 of his colleagues on the bench, including the judge who was presiding over the very trial where Judge Oppliger served as foreman.

Today, the Fresno Bee heralds yet another story of “juror misconduct.” (2015 update: link disappeared) Apparently, Pablo Lopez has just discovered that trial juries are made up of individuals called “jurors” and is amazed to learn they sometimes stray from the straight and narrow while serving. Thus, for two days in a row “juror misconduct” hits the front pages of the Fresno Bee.

But something seems different….

As Lopez reports it,

This is the second case of suspected juror misconduct this month in Fresno County. (Pablo Lopez, “Fresno juror accused of stealing trial evidence” (2015 update: link disappeared) (April 16, 2010) The Fresno Bee, emphasis added.)

[Note: Since I link the online story, I use the online date; the print edition, which I normally read, came out today; likewise, Judge Oppliger’s story was in yesterday’s print edition.]

The phrase “juror misconduct” is misleading here, however. Truth is, it’s apples to oranges when comparing what Judge Oppliger is alleged to have done with what juror Elizabeth Acuna did. For two reasons.

First, Judge Oppliger, while sitting as the jury foreman on a case, told his colleagues that he was enjoying the experience; Acuna admitted to stealing evidence (a video game console).

In other words, Judge Oppliger’s “misconduct” has not even been shown to be misconduct. It may be, as I suggested yesterday when I pointed out that there appears to be “something missing” when one reads the email samples currently publicly available. This is why, above, I put “arguably” in “scare quotes.” Yet even if there is something missing, that something may itself just be “more of the same”; in other words, “not misconduct.”

It is thus entirely possible — in fact, more likely — that Judge Oppliger did not violate the rules pertaining to jurors. As one of the emails from Judge Oppliger (rather condescendingly and ungrammatically) notes,

As we tell all of “them[,]” the only thing that cannot be discussed is “the case, or any of the people[,] or any subject involved in the case.” So while it behooves us to be responsible and even to error [sic] on the side o [sic] caution, other subjects such as the process fall outside the admonishment[,] but more importantly fall outside to scope of common sense.

And while the judge apparently ignored his own suggestion concerning what was and was not behooved, he is right. The judge’s lapse of judgment regarding the appearance of impropriety makes me uncomfortable, but what is known does not rise to the level of a violation of the rule(s).

The second reason is related to the first. The stories differ because of the purpose of the rules relating to juror conduct.

The ultimate goal is ensuring a fair trial to the accused person. (It remains for another post to discuss the mis-apprehension that the prosecution is entitled to a fair trial.) The ultimate goal of the rules regarding juror conduct is a fair and impartial jury; the proximate goal is to limit communications about the case because they are believed to impact the potential for reaching the ultimate goal.

Regarding the cases reported in each of the last two days by the Bee, Acuna alleges that she felt pressured to vote a particular way with respect to the verdict and this is why she stole evidence. Thus juror Acuna’s story potentially involves unfairness; juror/Judge Oppliger’s does not — at least, there is not any evidence that it does.

Sure, the defense attorneys in the case for which Judge Oppliger sat as a juror want there to be misconduct: if there were misconduct, they get a mulligan; a do-over. But as the old saying goes,

If wishes were horses, beggars would ride.

If worms carried shotguns, robins wouldn’t eat them.

As for me, and several other defense attorneys with whom I’ve spoken, we worry about the appearance of impropriety here. But our worries do not mean Judge Oppliger is guilty — or, by us at least, even suspected — of juror misconduct.

Mr. Lopez’s position as one of the primary authors of news stories covering criminal cases in the Fresno County Superior Court demands a responsible approach to the job. Unfortunately, there appears to be a reportorial pandemic that encourages sensationalism over responsibility, or even accuracy, these days. (As my wife recently reminded me when we were discussing integrity in modern media: “Walter Cronkite is dead.”)

And there’s certainly more of an “oh, wow!” factor, however small it may be, if one reminds readers that this isn’t the first instance of Jurors Gone Wild in Fresno County.

If Mr. Lopez wanted to perhaps write a real story regarding juror misconduct, he might do a little research on the seriousness of the problem, and quit trying to stir up excitement over the possibility that a sitting judge engaged in misconduct just to sell a story.

Maybe tomorrow Mr. Lopez can blow our minds again by pointing out that sometimes jurors make up their minds about the verdict before the trial is over. In the midst of the story, he can remind us that this isn’t the first instance of juror misconduct, by pointing out that one juror stole evidence during a trial while another juror — a sitting judge, no less! — told his colleagues he was enjoying the experience of performing his public duty and asked them for a list of jokes.

Seriously, though, if Pablo Lopez is going to do a series of “juror misconduct” stories comparing apples to oranges, he should at least point out that before passing on the question of guilt, his targets are entitled to a jury of their pears.

Too often, the stories relating to cases before our local courts are distorted — sometimes beyond recognition, according to lawyers who were actually present at the hearings — and the public has no way of knowing. The inaccuracies are not obvious; the stories, as written, are plausible.

This time — I hope! — Bee readers can see for themselves the mis-characterization.

Seeing it, I hope potential jurors on future cases reported by the Bee will remember the old adage: Don’t believe everything you read in the newspaper.

2 comments

  1. Anyone who reads either of my blogs — this one, or my other blog at probablecause.us — will realize that I’m not afraid to complain about judges who behave improperly.

    Your email, however, is without a solid foundation. For one thing, you say that if any other juror attempted to contact the sitting judge during a trial, everyone would agree it is improper.

    I disagree. I think if there was a prior relationship, such as here, the purpose and content of the communication matters very much. Are those two judges supposed to pretend that the other doesn’t exist during the pendancy of the trial?

    Actually, the real mistake was in leaving the judge on the panel in the first place. If another potential juror was known to have a close or potentially close relationship with the judge, would they have been allowed to stay on the jury? For reasons that completely elude me (!), no one — not the sitting judge, nor either attorneys for the defense or prosecution — felt there was anything wrong with leaving someone on the jury who had (almost certainly) a close relationship with the sitting judge.

    Is his relationship supposed to go away during the trial? Is he supposed to forget he knows the judge? Do you know that he actually even intended to send email to that judge? (Some systems — mine included — have email addresses that automatically go to groups of people.) Did the sitting judge see the email prior to the end of the trial? Is it possible that he didn’t say anything sooner because he wasn’t aware of it sooner?

    You’re making a large number of assumptions in your comment.

    The one thing I’m not hearing is: “What in G-d’s name was the defense attorney thinking?”

  2. Oppliger’s misconduct is not in what he wrote in the emails but in who he wrote the emails to: the sitting trial judge (Judge Harrell) during a jury trial where he was a juror. If any other juror attempted to contact the trial judge during a jury trial, regardless of the content of the contact, everyone would agree that this would be improper. The trial judge should have immediately notified defense counsel and the prosecutor in open court of this juror’s attempted communication with the judge. This did not happen in this case. Here Judge Oppliger (the juror) wrote at least three emails to the trial judge during a murder trial (Judge Harrell) without the knowledge of the either opposing parties in trial. Judge Oppliger’s emails were improper, unbecoming of a judge, and at a minimum provide an appearance of impropriety. Judge Harrell’s decision not to timely disclose these emails to the parties in a trial provide reversible error. The prejudice is made more clear when one considers the nature of Oppliger and Harrell’s prior relationship: Harrell worked under Oppliger in the DA’s homocide division. Harrell therefore did not want to embarass Oppliger by having to disclose the emails and thereby subject Oppliger to being kicked off the jury for cause during the trial. Harrell did not disclose the emails until after the trial because the emails could not be buried as the emails were also sent to at ten other judges and their existence may be uncovered in some future appellate discovery (or maybe another judge actually reported the emails). Bottom line is that the real misconduct is Harrell’s decision not to timely disclose the juror misconduct which may have been motivated by Harrell’s desire not to embarass the juror with whom he had a long standing personal and professional relationship. Both judges should be investigated by the California Judicial Council for possible violations of the California Judicial Cannon.

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