Crime & Safety

Judge to Question Jury in Del Toro Trial

Jurors to be asked whether discussions of penalty and media reports tainted their verdict.

Los Angeles Superior Court Judge Lance Ito said Tuesday he would write all 12 members of the jury that convicted veteran LAFD Capt. David Del Toro of the second-degree murder of Jennifer Flores and ask them whether or not their verdict in March was based on comments made by other jurors who disregarded court guidelines and brought up issues of penalty during their deliberations.

Ito’s decision followed a nearly 45-minute plea by defense attorney Joseph Gutierrez to allow him to interview members of the jury because, as he put it, their ability to deliver a fair verdict was tainted. One of the jurors (who was soon excused) not only discussed punishment but suggested that convicting Del Toro of manslaughter would mean that he would be out in two years, Gutierrez said.

Such a short sentence would arise from a fact that jurors were presumed to be either unaware of or strictly forbidden from considering in their deliberations: That Del Toro has already spent nearly five years in custody, which would be deducted from the maximum sentence of seven years that a manslaughter charge attracts. (Del Toro has been in custody since November 2006, about three months after he was arrested on suspicion of killing Flores, an acquaintance of his.)

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Gutierrez introduced a new wrinkle in his attempt to discredit the manner in which the jury convicted Del Toro. Referring to court transcripts of an inquiry that Judge Ito conducted of jury deliberations, Gutierrez said that one of the jurors, identified only as “juror No. 11,” thought that he had heard “juror No. 7” comment on penalties related to a manslaughter charge.

Given that the jury had heard one of its members commenting on manslaughter—and the fact that the juror was not excused from the deliberations—is significant, said Gutierrez, adding: “The tone of the deliberations changed after the issue of penalty was introduced.”

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But Judge Ito countered that the comment by juror No. 7 were essentially brief and did not constitute a discussion. “Some jurors described it [the comment] as short as 15 to 20 seconds, others as much as five minutes,” Ito told Gutierrez. However, the jurors who volunteered the information also said that as soon as that comment was made, someone brought up the appropriate jury instructions, which specify that “penalty and punishment should not in any way influence the verdict,” the judge said.

Further, said Deputy District Attorney Bobby Grace, the prosecutor in the case, except for juror No. 11, no other juror mentioned that juror No. 7 made any comments regarding penalties. In fact, the only juror who had unequivocally commented on penalties, Grace pointed out, had been excused shortly before the verdict, along with another juror who said she did not think she could reach a fair decision after having heard the comments.

“So what additional information can be obtained?” Grace asked. “The people’s position is that everything that [the defense] needs to glean is already there in the record.”

Besides comments regarding penalties, which could have tainted the verdict, Gutierrez also brought up the possibility that jurors were influenced by media coverage of the case, some of which, he said, also mentioned a seven-year maximum sentence for manslaughter.

“If you enter the words ‘murder trial David Del Toro’ the Google box indicates over a million hits,” Gutierrez said, adding that the former fire captain’s name alone generates as many as 350,000 hits. (When Eagle Rock Patch cross-checked the number of hits, the words "murder trial David Del Toro" generated about 82,000 hits, while the fireman's name prompted 1.1 million.)

Asked by Ito which media articles might have influenced jurors, Gutierrez specifically mentioned Eagle Rock Patch. Gutierrez read an excerpt from one Eagle Rock Patch article, which said that “Del Toro faces a panoply of possible charges, ranging from involuntary manslaughter, which carries a maximum sentence of seven years, to first-degree murder, which carries a sentence of 25 years to life.”

The same article also alludes to the prosecution’s contention that Del Toro was perceived by the LAFD Credit Union as a flight risk while he was on bail following the August 2006 murder of Flores inside his Eagle Rock home on Vincent Avenue.

Judge Ito said he would write the jurors during the week of July 4 and ask them to respond within 10 days of receiving his letter. “I'd rather deal with this issue today rather than two years from now on a writ of habeas corpus,” he said, adding that he would take up the issue next on the morning of July 29.


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