The petty theft trial of Deputy Dist. Atty. Wayne Mayer ended in a hung jury Monday, the jurors hopelessly deadlocked over whether Mayer was so drunk when he took a workman's tools that he was stripped of criminal intent.
After more than six hours of deliberations Friday and Monday, the jury was divided, 9-3, in favor of a guilty verdict, when San Diego Municipal Judge Robert Stahl declared a mistrial in the misdemeanor case.
Mayer, a 10-year veteran of the district attorney's office, was accused of stealing a power saw and a drill from the back of a pickup truck parked at DeAnza Cove on June 14. He testified that stress from his participation in the retrial of Sagon Penn had driven him to drink heavily and that he could not recall taking the tools.
Deputy Atty. Gen. John Swan, who prosecuted Mayer after the district attorney's office disqualified itself from the case, said it had not been decided by the end of the business day Monday whether Mayer would be retried. A decision was to be made, however, before an early-morning court appearance scheduled today by Stahl.
Foreman Harold Williams, a U.S. Border Patrol agent, said the jury was in agreement that Mayer had taken the tools--a fact that defense attorney Peter Hughes did not contest. But the jury was split over the question of whether Mayer's mental function was so impaired by alcohol that he could not have formed the intent to commit a crime, Williams explained.
"Was that alcohol enough to influence his thinking factors at the time? There were three who felt it did," Williams said. "Some of us felt he did what he did because of the stress. We've all done foolish things."
Mayer testified that he drank five or six gulps of gin, three or four large glasses of wine and half a bottle of bourbon in the hours before eyewitnesses observed him removing the power tools from a pickup truck owned by Robert Pospisil, a San Diego plumber.
Mayer said he had become a heavy drinker to relieve the accumulated stress of a decade as a prosecutor, including several years prosecuting child molestation cases--and especially the stress created by the pressures of the Penn trial.
A psychiatrist who testified for the defense said Mayer's stress was accentuated by "doubts" he had about San Diego Police Agent Donovan Jacobs, who was wounded by Penn and was a key prosecution witness in the Southeast San Diego man's trials. The psychiatrist said Mayer was "loaded with conflict" about the case, in part because his wife, Gayle, was a friend of Jacobs.
In closing arguments Friday, Swan argued that eyewitness accounts of Mayer's furtive conduct in the parking lot--casing a number of trucks and looking from side to side, as if he were afraid of being seen, when he took the tools--was proof that he knew he was doing something wrong.
But Hughes--contending that Mayer's heavy drinking had caused a blackout that left him with no memory of taking the tools--said Mayer's conduct was clearly irrational for a person in his position.
"What those witnesses described is not something consistent with somebody who is functioning, whose wheels are turning," Hughes said. "You talk about inviting trouble, inviting grief. What more could you do?"
Swan dismissed Mayer's testimony as "unbelievable" and termed the supposed alcohol blackout "the ultimate, convenient memory gap."
"He's taken the tragedies of children and other people and police officers' families and thrown them out here, basically, I submit, to use those as an excuse for what he did," Swan said. "A verdict of not guilty is saying when things get tough . . . then if you go out and take something of somebody else's, it's not stealing."
Mayer is on paid administrative leave from his $65,000-a-year job pending the outcome of the case.