Comments on: A Jury of His Pears http://fresnocriminaldefense.com/jurors/a-jury-of-his-pears/ The Law Office of Fresno Criminal Defense Lawyer Rick Horowitz Mon, 02 Jan 2012 19:38:15 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: RickH http://fresnocriminaldefense.com/jurors/a-jury-of-his-pears/comment-page-1/#comment-5233 RickH Tue, 20 Apr 2010 00:41:20 +0000 http://fresnocriminaldefense.com/?p=972#comment-5233 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 <em>see</em> 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?" 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?”

]]> By: john pederson http://fresnocriminaldefense.com/jurors/a-jury-of-his-pears/comment-page-1/#comment-5222 john pederson Sun, 18 Apr 2010 20:43:15 +0000 http://fresnocriminaldefense.com/?p=972#comment-5222 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. 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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