Juror Misconduct May Lead to Dismissal of Murder Conviction in Orange County

An Orange County, California murder conviction may be thrown out because of juror misconduct. But the office of District Attorney Tony Rackauckas opposes the motion to dismiss, insisting the conviction is valid.

According to R. Scott Moxley at OC Weekly, a juror who helped to convict Eric Ortiz of the 2006 murder of Emeterio Adame earlier this year provided defense investigator Nicole Busse with startling new revelations about deliberations during that case. She claimed that several jurors assured those wavering about a conviction “not to worry” because an appeals court would correct any erroneous decisions made by the jury. Jurors are not allowed to factor in potential future appeal decisions when deliberating.

The individual, identified only as Juror 173, also admitted to conducting her own investigation into the credibility of a defense witness during the trial, another action forbidden by California law. However, this juror then refused to sign an affidavit admitting what she’d done. She asked Busse to rewrite the affidavit to state — falsely — she conducted her investigation post-trial.

Defense attorney Rudy Loewenstein has filed a motion to throw out Ortiz’ conviction, based on the juror’s behavior. According to that motion, the juror told Busse she would lie under oath if asked about her behavior. The motion reads, in part, “This indicates [the juror] is aware that her behavior compromised the integrity of the trial and the sanctity of the jury’s deliberations.”

The juror later took the stand and invoked the Fifth Amendment when asked whether Busse’s claims were true.

Despite these problems with the trial, Rackauckas has stood by the conviction, and aggressively opposed the motion to dismiss. According to Moxley’s article, prosecutors questioned Busse’s credibility, going so far as to interrogate her at her family’s vacation home and to pose personal questions unrelated to the case.

A judge has not yet ruled on the motion.

This was Ortiz’ second conviction, and third trial, for the murder. His case has been plagued with accusations of prosecutorial misconduct from the beginning. His first conviction, in 2014, was challenged after allegations emerged that police and prosecutors illegally placed him in a cell next to an informant in order to obtain incriminating statements. Four deputies refused to testify at a hearing, citing their Fifth Amendment right against self-incrimination, prompting the judge to overturn the verdict. A second trial, in 2016, resulted in a hung jury.

During a third trial in early 2017, Ortiz was convicted of second degree murder. However, he was acquitted of the murder charge of a second man, Benjamin Lopez. During the first trial, he had been convicted of this murder.

Ortiz is currently awaiting sentencing.

As In Justice Today previously reported, Rackauckas’ office has recently been beset by other scandals. Earlier this year, his office was removed from the death penalty prosecution of Scott Dekraai because it failed to turn over evidence to the defense. Several of his investigators have accused the District Attorney of planting snitches in the county jail, interfering in multiple investigations and engaging in cover ups of police misconduct.

A special committee that Rackauckas set up to investigate these charges cited a “win at all costs mentality” among some of the line prosecutors and an overall “failure of leadership.”

These accusations have damaged his standing with the public. Rackauckas already faces one declared challenger in his 2018 re-election bid.