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Federal Judiciary

: California Appellate Report

People v. Alexander (Cal. Supreme Ct. - July 15, 2010)

By Shaun Martin

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There's virtually no physical evidence at all. The eyewitness identifications are shaky. The crime was unsolved for over a decade. It was a random shooting for inexplicable reasons.

But the person shot and killed was a Secret Service agent. On duty. And a woman. When you're convicted, you're going to be sentenced to death. And the California Supreme Court will affirm in a unanimous (and 130-page) opinion.

The discussion on pages 98 to 106 seems the most troubling issue to me. A juror says during jury deliberations that s/he's not willing to vote guilty because there's no positive identification of the defendant or physical evidence at the scene. But the other 11 jurors want a guilty verdict.

So the foreman writes the court a note, and tells the judge that the one juror said: "If we could positively identify him, I would fry his ass just like the rest of you. But without a positive i.d., I . . . cannot vote for guilty." The court then pulls the jury back in expressly instructs them about circumstantial evidence being okay and the like -- instructions clearly targeted at the holdout juror.

Those are proper instructions, of course. But the process used seems a pretty powerful way to deliver a specific message. So a specific juror who's vote you know and want to change.

Oh, yeah. When, at the penalty phase, you do the exact same thing again -- albeit in a different context -- it seems only worse. There, the foreman writes another note: "We have a split eleven to one + the holdout will not listen to any reason. Please let us know how to continue. The holdout is based on the children." So the judge calls the jury in and tells them that their decision can't be based on sympathy for a third party; e.g., the defendant's children. Thirty-five minutes of deliberations later, the jury unanimously comes back with a verdict of death.

At some point the judge risks becoming a participant in an interactive process with the jurors during deliberations. That's not right. Or at least it's not our system. Even though what the judge told the jurors was totally correct as a matter of law, the process employed here seems troubling to me.

Something that I'm sure will hear more about -- in another decade or so -- when the federal habeas proceedings reach the Ninth Circuit.

(At which point Alexander will be around 40 years older than when he committed the offense. If he lives that long.)

P.S. - For a sharp contrast to Alexander, take a look at Solomon, decided the same morning by the same court and with the same unanimous result. Solomon's unquestionably guilty, and the trial's not infected with any error. The result in Solomon is easy. The two cases are night and day.

Full post as published by California Appellate Report on July 15, 2010 (boomark / email).