Get Informed

Subscribe to our newsletters for regular updates, analysis and context straight to your email.

Close Newsletter Signup

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

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.

Commentary: Cy Vance was Re-Elected. Here are Some Ways You Can Hold him Accountable.

Wikimedia Commons user Saffie 55

Commentary: Cy Vance was Re-Elected. Here are Some Ways You Can Hold him Accountable.

Manhattan District Attorney Cy Vance was re-elected last week, an unsurprising twist given that his was the only name on the ballot. In fact, given the lack of official options, Vance’s victory was not so impressive. He still managed to garner only 90% of the vote — almost 20,000 people decided to write-in a candidate rather than vote for him. (Many of the write-ins were for last-minute progressive candidate Marc Fleidner.)

Vance has been roundly criticized lately for not prosecuting Ivanka Trump and Donald Trump, Jr., for fraud in 2012. He’s also been criticized for not prosecuting Harvey Weinstein for sexual assault when given the opportunity. But, as I wrote recently in the New York Times, the real problem with Cy Vance is not what he fails to prosecute, but what he does.

Now that he’s officially in office another four years, voters, organizers, and grassroots groups have the opportunity to hold Vance’s feet to the fire. He has quite a well-resourced office, and in 2015 received $808 million from forfeited assets of international banks he prosecuted, giving him the potential to do some major things. Here are just three of the reforms he could focus on.

Reduce Rikers’ Manhattan Population

Manhattan is ranked first in Rikers’ admissions compared to other boroughs, but only third in population. Although Manhattan has approximately 1.6 million residents compared to Brooklyn’s 2.6 million, Brooklyn manages to send 23% less people to Rikers. Most of Manhattan’s disproportionate admissions are because Vance’s office sends significantly more people to jail for non-violent felonies and misdemeanors. About 80% of the defendants incarcerated at Rikers, which has been referred to as “torture island,” have not been convicted of a crime at all.

Vance’s total admits have decreased since last year, which is an improvement. But more can be done, and he should make it his goal to rely less on arrests and imprisonment and more on alternative solutions to incarceration.

Reform the Gravity Knife Law

Vance has been a staunch advocate for maintaining the gravity knife law. The statute, which is outdated and poorly worded, has often been used to arrest people, including carpenters and artisans, for common folding knives that can be purchased at a local store.

Many agree the law should be reformed. Cy Vance is not one of them.

His office has been particularly aggressive in prosecuting this “crime.” According to the Legal Aid Society, during a six-month period in 2015, his office prosecuted four-and-a-half times as many of its clients for gravity knives as did all the other boroughs District Attorneys combined. Of those prosecutions, only four defendants were accused of using the knife unlawfully; the rest were charged with simple possession.

A reform bill was introduced and passed the Assembly and Senate last year before being vetoed. Vance lobbied the state legislature against reform, and has “gone so far as to hold a confidential conference call with senate Republicans to argue against gravity knife reform.”

Many organizing groups have already pushed Vance to end these prosecutions, but the issue hasn’t garnered as much attention as it should. Ordinary citizens should demand that Vance stop prosecuting residents under this antiquated provision.

Address Racial Disparities

In 2014, the Vera Institute of Justice found that there are significant racial disparities in outcomes between white defendants and defendants of color in Vance’s office. Vance promised to try to address those disparities, but has not released significant follow-up data, so it’s impossible to know whether those disparities have improved significantly or not. But the data we do have doesn’t look good — for example, last year, 51 percent of marijuana cases involving black defendants in Manhattan ended in conviction, while only 23 percent involving whites did. (This September, Vance agreed to make some changes to how his office prosecutes marijuana possession.)

Vance has repeatedly lamented racial disparity in the criminal justice system. But his laments are not enough. It’s hard to know the extent of racial disparity in Vance’s office, and the public is entitled to robust and detailed data regarding prosecutions and convictions. But a solution must go beyond data. As more racial disparity comes to light, Vance should be held accountable for rectifying those injustices.

These are just some of the issues that Vance should turn his attention to as he starts his third term as District Attorney. But without outside pressure, he’s unlikely to reform these practices willingly. That’s why ordinary residents should continue to demand action on these issues.

Cy Vance is the head prosecutor in one of the most progressive cities in the country. It is time he acts like it.

More in Explainers

Controversial District Attorney Charges California Officer For Stolen Handgun

The prosecutor rarely holds officers accountable.

Wikimedia Commons

Controversial District Attorney Charges California Officer For Stolen Handgun

The prosecutor rarely holds officers accountable.

A member of the Bakersfield Police Department in California is being prosecuted by a district attorney who typically refuses to hold cops accountable. Kern County District Attorney Lisa Green charged Officer Kevin Schindler with embezzlement, possession of stolen property, and possession of illegal steroids early this month, after a stolen shotgun and injectable testosterone were found in his home.

The property was discovered in Schindler’s house in October, when his colleagues followed up on reports of a verbal dispute. There, responding officers found the testosterone, a BPD shotgun that was not registered to Schindler, as well as a firearm locking rack that belonged to the department. Green’s office launched an investigation, and Schindler was immediately placed on administrative leave. Misdemeanor criminal charges were filed on November 3.

The decision to prosecute Schindler is a rare one. Time and time again, prosecutors have demonstrated a reluctance to charge police for wrongdoing, and Green is notorious for letting officers get away with misconduct and criminal behavior.

According to the Guardian, there are more officer and deputy-involved shootings in Kern County per capita than every other U.S. county. In light of accusations that BPD officers and Kern County Sheriff’s Office deputies use excessive force and commit other forms of “serious misconduct,” the Department of Justice launched an investigation of both agencies last year. The ACLU of Southern California recently slammed BPD and KCSO for “a disturbing pattern of shootings, beatings and canine attacks.” Despite these allegations of excessive force and rampant use of firearms, no BPD officer has been charged for a police shooting by the district attorney.

Last year, Green also refused to prosecute corrupt detectives who admittedly stole and sold drugs, stole evidence from BPD, and took bribes.

The district attorney’s reluctance to hold officers accountable has continued this year. After a deputy from the KCSO shot an unarmed man in the abdomen, the Sheriff’s Office opened an investigation and concluded that the deputy broke protocol. Despite this conclusion, the district attorney decided the deputy’s decision to shoot was “objectively reasonable” in July. Green also declined to charge BPD officers who illegally stopped and arrested two black college students — even though she acknowledged that the officers’ actions were unlawful.

“Sometimes officers can make good faith mistakes and there’s exceptions built into the law that allows them to conduct a search. In this case there’s no exception that allows them to,” she said. “They didn’t have any reason to contact them.”

Within this context, Schindler’s case is an anomaly.

More in Podcasts