SANTA MARIA, Calif. (CN) — An upcoming retrial of a misdemeanor sex-related case has raised a tricky issue concerning what the jury can be told about the first trial: Can a jury deciding whether a suspect is guilty of a criminal charge be told that a previous jury had found him not guilty of a closely related charge?
Prosecutors in this city in northern Santa Barbara County say that what the first jury found has no bearing on the second trial and should not be allowed to influence the second jury’s thinking.
The defendant’s attorneys say their client couldn’t have committed the pending charge if he did not commit the previous charge, so the jury must learn that he was acquitted of that one.
“It’s a novel legal issue,” said defense attorney Jeremy Lessem, of Lessem, Newstat & Tooson. “If you’re going to bring in evidence of a criminal act, and there was an acquittal, the jury has to be aware.”
Deputy District Attorney Jon Kawashima, the prosecutor, said he could not discuss a pending case.
Kawashima’s office alleges that in 2012 Derrick Allen Lee followed a 13-year-old boy, Eric, into the fitting room of a Kohl’s department store and exposed himself to the boy while they were in adjoining dressing rooms.
Prosecutors charged Lee with indecent exposure and with annoying or molesting a child under 18 for sexual purposes. Though both crimes are misdemeanors, convictions require lifetime registration as a sex offender.
At the first trial, Eric and Lee gave very different testimony about what happened in the fitting room, and the main question for the jury was whether the defendant actually exposed himself to the boy. Without that, there would be no sexual component left to support the annoyance charge, Lessem says.
Kawashimi made a similar argument to the first jury, according to an appellate ruling after that trial. “He argued that if the jury believed Eric, defendant was guilty of both counts, and if they did not, he was not guilty,” the opinion states.
Nonetheless, the jury acquitted Lee of indecent exposure but convicted him of child annoyance. The Superior Court Appellate Division held that the apparently inconsistent verdicts could stand, but it reversed the conviction on unrelated grounds.
It also ruled, however, that “the jury’s previous not-guilty verdict on the indecent exposure count will not preclude the introduction of evidence that defendant exposed his genitals to Eric in the dressing room.”
If that evidence is allowed, Lessem argued in a pretrial motion, evidence of the not-guilty verdict also should be allowed. He cited the 1967 California Supreme Court ruling in People v. Griffin, holding that proof of acquittal should be admitted, “to weaken and rebut the prosecution’s evidence of the other crime.”
That rule is “fair to both the prosecution and the defense,” the state supreme court said, because it helps the jury asses “the significance of the evidence of another crime with the knowledge that at another time and place a duly constituted tribunal charged with the very issue of determining defendant’s guilt or innocence of the other crime concluded that he was not guilty.”
When Santa Barbara Superior Court Judge James Voysey agreed, Kawashima turned to the appellate division.
“This ruling was in direct violation of the prohibition against allowing a jury to hear any reference to a previous verdict in a new trial,” he wrote in a petition for writ of mandate.
Kawashima would not discuss his reasoning, but Wendy Lascher, the well-known appellate attorney in Ventura who represented Lee previously, said the sticking point is California Penal Code Section 1180.
Section 1180 states that during a retrial, “the former verdict or finding cannot be used or referred to, either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the accusatory pleading.”
After all, said two experienced criminal defense attorneys who heard a brief description of the issue, a not-guilty verdict means only that the first jury decided the prosecution didn’t prove its case beyond a reasonable doubt. The jury did not decide that Lee was innocent.
The not-guilty finding is akin to hearsay, one of the defense attorneys said.
But Lascher said she believes the Legislature intended Section 1180 to benefit the defense, not the prosecution. Allowing in evidence of an earlier acquittal “is sort of a way of impeaching the evidence,” she said.
Lessem said he is puzzled and frustrated that the district attorney’s office is continuing to press the case against his client. Lee already has served a 90-jail sentence and time on probation while waiting for the appellate decision. He now lives in Arizona.
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