"We expect a prosecutor to know the law." comment about former DA Paul Gallegos on the Timothy Littlefield case currently before the Court of Appeals

I have been following every court hearing and development in the Timothy Littlefield case since it was sent to the Court of Appeals. Mr. Allan Dollison has often given feedback on the developments and he has been correct every time.

I contacted him to ask him what his prediction was since there have been several disposition and rest hearings to schedule the third trial.

This is a response from Mr. Dollison. He is a private attorney. He often comments on my blog. And writes Dollison on the Docket for Lost Coast Outpost.

"It appears that the incredibly long People v. Timothy Littlefield case is finally near conclusion. The matter stands submitted at the 1st District Court of Appeals after oral arguments on November 3. The Justices have 90 days to issue their decision. I ordered the oral recordings of the argument and listened to them intently to see if through their questioning, I could guess what is going to happen.

This was the case, where a man was convicted of Multiple Lewd Acts on a Child. Over 9 months later he brought a Motion for New Trial with an affidavit from a juror attached who expressed an opinion that the "defense didn't prove their case." Purportedly the declaration was written by a defense investigator after a discussion with the juror. In our system of justice, the defense does not have to prove anything of course. The legal dispute will center around the admissibility of that declaration.

Here is my prediction, and we will officially know what actually happens when the opinion is released. I believe the Justices are going to reverse the trial Court's decision granting a new trial as a result of juror misconduct. They will remand to the trial Court with instructions to offer the Defendant the opportunity to present legally admissible evidence in support of their claim for a new trial. They are going to rule that the trial Court should not have allowed the Affidavit or Declaration from a juror, as it violated California Evidence Code section 1150. That section says in its pertinent part as follows: "...No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined..."

I believe the opinion could be critical of the prosecutor who handled the hearing (and the trial), Paul Gallegos, as he did not object to the admissibility of this declaration. In fact most of the oral argument centered on whether or not the people waived this argument by failing to object. Yet, the Court of Appeals in the argument were noticeably troubled by inadmissible evidence being considered to overturn a jury verdict in a very serious case. The key distinction is whether or not this juror communicated this improper opinion to other jurors. Having done 35+ trials, my experience is when a juror voices an opinion to others contrary to the law or suggests something inappropriate, the other jurors will report such conduct to the judge. That never happened in this case. The argument pointed out that the juror did not back up his declaration while testifying on this motion.

The key point is the finality of this process, and attorneys being able to march into court with juror declarations. The law does not allow for that, and thus the process should be reversed.

Both Appellate lawyers agreed to the suggestion of the Court of Appeals that a remand with a final opportunity to present admissible evidence should be afforded, which is why it is certain that is the track they are taking. I think it is a fair decision. There is always the possibility they could rule against the people because of the waiver or failure to object argument. It is an important principle of the law that evidentiary objections must be made at the trial court level and not wait for an appeals court to straighten it out. One reason is the delay an appeal can take, and now any future hearing, the evidence will really be from a long time ago. They did note that the defense took about 8-9 months post-conviction to file that motion, so it is my prediction that they will not be persuaded by the waiver argument. Oral arguments are typically used by the justices to test theories that they have, as they already have an inkling of what they intend to do. They reviewed long legal briefs on the issues before the argument. Most of their questioning was testing this remand with another opportunity theory.

On the waiver and admissibility of the evidence, at one point, one of the Justices said, "We expect a prosecutor to know the law." Shortly when the opinion is issued we shall find out what the law is. One thing is clear and it went unsaid in the oral argument hearing. It is not the job of a judge to make the objections for the prosecutor, or even the defense attorney if the shoe was on the other foot.

This will be an interesting opinion in a case, where a man who had stood convicted faces 150+ years in prison. There has already been two trials, the first hung 11-1 in favor of guilt. The second was a unanimous guilty verdict. The justices were mindful of how difficult it would be for a minor victim to have to testify in a 3rd trial."