I struggled, picking the title for this article, briefly considering “Much Ado About Nothing.” Then I decided to play off a quote from the story itself.
But before I start, I want to offer a shout-out to a new blogger. So far as I know, he becomes the second law-focused blogger (after me) in Fresno. (If anyone knows others, drop me their info and I may add them to my list.) Terry stopped me on the way out of court today, although he got my name slightly wrong: he called me “Blogmeister.” He said he wanted to start a blog, but wasn’t sure what to write about. We talked awhile and I gave him a suggestion, saying I was planning to write about it also, and encouraged him to join the party. Here’s the post he wrote (5/2016 edit: link no longer exists) after we talked.
With that out of the way, what follows is my riff on the story.
The Fresno Bee today reported that “Emails from judge/juror cause stir.” The online version is here.
The front-page, top-of-the-fold, so-important-it-had-to-be-first story starts off with this:
Every juror knows the cardinal rule: Don’t discuss the case with anyone until deliberations.
Well, maybe. (As in, maybe every juror knows “the cardinal rule.” And, frankly, I’d rather “the cardinal rule” be “an accused person is innocent unless proven guilty, no matter what anyone tells you.”)
At any rate, the story goes on from there to talk about Judge Oppliger, a former chief homicide prosecutor who was inexplicably left sitting on the jury — along with a clerk for a federal judge and a forensic pathologist (2015 update: original link disappeared; 5/2016 update: the replacement link has now also disappeared)) — and provides reason to believe he probably did not break the purported cardinal rule.
As the Fresno Bee reports, Judge Oppliger was clearly having fun on the jury panel and, in addition to becoming their leader, he apparently forged some new friendships. That’s something every defense attorney hopes for when trying a case: to have a chief-homicide-prosecutor-turned-judge leading his pack of new friends to the verdict.
Which was, by the way, “guilty.”
At any rate, the judge appears to be not just having fun, but downright gleeful over his once-in-a-lifetime opportunity. His emails show him joking around about serving on the jury — “livin’ the dream,” as he called it — but don’t appear to indicate anything untoward. Frankly, I think any talk of a successful motion for new trial based solely on these emails may be a so-called “Hail Mary pass” and about as likely to succeed.
On the other hand, the PDF file containing the four emails raises more questions than it answers. The four emails are dated and time-stamped “March 15, 2010 12:09 PM,” “March 16, 2010 3:51 PM,” “April 07, 2010 11:46 AM” and “April 12, 2010 1:33 PM.”
The emails make it clear that there’s something missing.
The “first” email contains the following text:
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 the scope of common sense.
Aside from the fact that at the time he wrote this, Judge Oppliger apparently forgot that — to paraphrase Pogo — he is them, the question that comes to my mind is “what caused him to write these words?” The presence of “Re:” in the email subject line indicates that this is not really the “first” email in the chain. Furthermore, this paragraph — the only paragraph in the email — does not obviously have anything to do with lunch!
Clearly there’s more, but what was it? Who said it?
I’ll venture a guess: Someone — most likely some other judge in the long list of judges in the “To” line — chastised him for something he wrote previously, something that hasn’t been released. The “second” email, a part of which was quoted by the media, states:
Leave it to you guys to kill my dream of having come full circle. I suspect the path suggested by [someone with apparently a 4- letter name which is blacked out] will take me into my retirement years. But here I am livin’ the dream, jury duty with Mugridge and Jenkins!
What dream was killed? Who is the mysterious 4-letter-named-redacted individual? If it is one of the recipients of the emails, we appear to have 5 candidates, based on last names; two if the judges refer to one another by first names. What path did he suggest? Not sending emails while serving on juries? If so, it appears to be a suggestion that will be ignored: prior to the start of jury deliberations, apparently, Judge Oppliger asked his fellow judges for a copy of the “top ten reasons that you know you have been on a jury to [sic] long when:” for his “friends.”
As I said, that email alone should strike fear into the heart of every defense attorney.
So now inquiring minds with FOIA requests want to know: where are the “missing” emails? What information do they contain?
Why did the judge presiding over the trial, who was one of the recipients of the emails, not say anything about them until after the verdict?
And maybe two more: Does Judge Oppliger still feel that he’s “livin’ the dream”? Or will his dream, in fact, turn out to be one helluva nightmare?
5/2016 Edit: Judge Oppliger was found not to have committed misconduct. The only link I have for this is here.