Defense Asks Judge for Permission to Interview Jury in LAFD Captain Murder Case

A defense attorney representing a former Los Angeles Fire Department captain convicted of murdering a San Gabriel woman asked a judge Friday for permission to interview members of the jury on the grounds that their verdict might have been prejudiced by media reports about the case as well as by the misconduct of a juror who was dismissed for violating court instructions not to discuss any penalties or punishment for the accused.

Defense attorney Joseph Gutierrez argued in the court of Los Angeles Superior Court Judge Lance Ito on May 6 that speculation in the media revolving around the 2006 killing of Jennifer Flores may have unfairly influenced the 12-member jury that convicted Del Toro of Flores’ second-degree murder on March 17.

Gutierrez also said that the verdict may have been influenced by a juror who was dismissed because she told her fellow jurors she had trouble deciding that Del Toro may have been guilty of manslaughter because of the relatively light penalty for the charge.

Judge Ito instructed Gutierrez to produce media reports to substantiate his argument. “Although I read the Los Angeles Times, the Daily News, the Wall Street Journal and blah blah blah,” Ito told the defense lawyer, “I didn’t see a whole lot of coverage of this case.”

Gutierrez responded that “there were probably hundreds of articles in newspapers—the Pasadena Star-News and other newspapers”—about the case, but he admitted that “I didn’t actively read them.”

The defense attorney, who had warned immediately after Del Toro’s guilty verdict that he would seek a mistrial on grounds of jury misconduct, said he would explore the Internet for media reports about the case and present them to the court by Tuesday. Ito said he would decide on the matter on May 20.

Deputy District Attorney Bobby Grace, the prosecutor in the case, told the court that there is no evidence that “further misconduct” occurred beyond the transgression for which one juror was dismissed (and immediately replaced by another juror who had witnessed the entire proceedings but was not part of the original 12-member jury).

“In fact, the defense counsel cannot point to anything in the record to suggest that further misconduct occurred—nor can [the] defense point to anything that suggest that the jurors’ verdict was based on anything but their fair and impartial deliberations,” Grace argued.

Gutierrez pointed to the fact that not only does the court know “there was evidence of misconduct” but that a second juror, whom he referred to as “juror number 11,” was also replaced because she told the judge she believed she could not reach a fair verdict because of the dismissed juror’s comments.

“Juror number 11 said that at least four jurors discussed punishment,” Gutierrez told Ito, implying that the issue of misconduct by the jury panel may have run deeper.

Presenting the prosecution’s point of view, Grace countered that because the dismissed juror had no special knowledge of the law, it’s illogical for the defense to suggest that other jurors would have relied on her concerns about how to reach a verdict.

“Even if every juror heard the conversation about possible punishment, the court ordered each juror to ignore punishment and to follow the court’s instruction regarding deliberations,” Grace told Judge Ito. “There is no evidence to suggest that the jurors did not follow the court’s admonishment and instructions.” The defense attorney’s request, added Grace, is “little more than a fishing expedition.”

Besides, said Grace, “the fact that the jurors did not speak with either counsel shows they did not intend to speak to anyone about their verdicts—if there had been any jurors who were troubled by their verdicts regarding possible sentences, they would have contacted the defense counsel. That has not happened.”

Judge Ito reminded Gutierrez that the entire jury panel was carefully selected after a prolonged process involving scores of potential jurors. “Since we conducted an extensive examination of each of the jurors, what more can we gain?” Ito said.

Del Toro, who lived in Eagle Rock and has been in jail since November 2006, was handcuffed in court and dressed in an orange-colored L.A. County Jail uniform. Also present in the court was one of Del Toro’s brothers and several members of Flores’ family.