Online Extra: Juror's Online Research Forces New Trial

Jurors who improperly search the Internet for information about the trial they're hearing are a growing problem for lawyers and judges.

Last month, the California Court of Appeal tackled a worst-case scenario ' a juror who located a prior appellate opinion about a case, chock-full of inadmissible evidence ' while challenging the California Supreme Court to tighten standards for prejudice from extraneous materials.

The Fifth District on May 21 reluctantly threw out the conviction of Michael Pizarro in the 1989 sexual assault and murder of his 13-year-old half-sister, Amber. Pizarro was prejudiced because a juror discovered that he'd been convicted on all counts at a previous trial, had given testimony at that trial that contradicted his statements to police, and that the appellate court had labeled it a 'strong circumstantial case.'

People v. Pizarro marks the third time the appellate court has ordered a new trial in the case.

'We sympathize with the trial judge who, having presided over two jury trials and a prolonged Kelly hearing amid two appeals, was called upon to make the difficult decision of whether to grant yet another new trial in a case that was then almost 20 years old,' Justice Stephen Kane wrote for a unanimous panel. But 'the juror's misconduct in disobeying the court's repeated admonitions and in investigating the case on his own made a mockery of the trial process and prejudiced defendant.'

Madera County Superior Court Judge Edward Moffat II had found the juror committed 'gross misconduct,' but held it harmless under In re Carpenter, the leading California Supreme Court decision on jurors accessing extraneous materials.

Kane wrote that the Carpenter decision is 'deeply troubling on many levels' and urged the California Supreme Court to revisit it.

'When jurors receive information about the case outside of the courtroom, all of the work of the court and parties to comply with the law is potentially undone,' Kane wrote. When that information is likely to have biased the juror, it's wrong 'to uphold the verdict simply because a reviewing court thinks the defendant would have been convicted anyway.'

Pizarro had been drinking at a party near North Fork on the night of June 10, 1989, when he got into an argument with his wife and began walking home. His wife enlisted Amber to help persuade Pizarro to get into their pickup truck, but she disappeared with Pizarro off the side of the highway, then turned up dead the next morning. DNA evidence indicated sexual contact between her and Pizarro within 72 hours of her death. Pizarro said he had walked away from the women and then fallen asleep in a field.

Pizarro was sentenced to life in prison in 1990, but the appellate court reversed, twice, due to problems with the DNA evidence. 'This was an awful case on many levels,' Kane wrote, 'an abominable crime with complicated DNA evidence, two jury trials and a lengthy Kelly hearing in between.'

Pizarro was convicted a second time in 2008, but following that trial a juror, identified only as Juror No. 9, admitted researching one of the previous appellate opinions on the Internet during trial. The juror had felt 'lost' during testimony, and referred repeatedly to the appellate opinion to help him understand the timeline of events.

'I was looking at everything,' the juror testified. 'I was looking at what people were saying, who said what. I was looking at who was where. I mean, that's timelines, that's what a timeline is. Where everybody was at. What they were saying. Who was involved.'

The opinion recounted Pizarro's testimony at his first trial, which included the admission that alcohol made him violent. Pizarro did not testify at his second trial.

The attorney general's office argued that the misconduct was harmless under In re Carpenter. That 1995 decision by Justice Armand Arabian upheld the convictions and death sentence of 'Trailside Killer' David Carpenter despite a juror reading extensively about the case in the local newspaper. Evidence of Carpenter's guilt was 'truly overwhelming,' Arabian reasoned, and 'it is virtually inevitable that in a trial such as this some secrets cannot be kept.'

Kane criticized the Carpenter ruling, adding he was not the first appellate judge to do so.

'We respectfully urge our Supreme Court to reconsider its Carpenter opinion,' Kane wrote, with Justices Charles Poochigian and Donald Hanson concurring. 'It should be sufficient to show juror bias if the extraneous material is substantially likely to have caused the juror to lower the prosecutor's burden, shift the burden to the defense, become skeptical of defense evidence or theories, or deprive the defendant of thorough consideration of his case.'

Berkeley criminal appeals specialist Clifford Gardner argued the case for Pizarro. Deputy Attorney General Rachelle Newcomb represented the state.

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Scott Graham writes for The Recorder, the San Francisco-based ALM affiliate of Internet Law & Strategy. He can be reached at [email protected].

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