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Jurors Get New Option in Verdict for Dally

Trial: Judge allows consideration of a lesser charge. He will also investigate possible misconduct by panel members.

March 24, 1998|TRACY WILSON | TIMES STAFF WRITER

Over the objections of the prosecution, a judge decided Monday that jurors in Michael Dally's murder trial may consider a lesser charge when deliberations begin later this week.

The ruling means the jury can weigh verdicts ranging from premeditated first-degree murder--which carries a possible death sentence--to accessory after the fact, punishable by as little as 16 months in County Jail.

After granting the defense's request to include the lesser charge, Superior Court Judge Charles W. Campbell Jr. turned to another hot-button issue--possible jury misconduct.

Last week, a member of the jury passed a note to the judge asking if several jurors could use laptop computers to organize evidence during deliberations.

The request, which legal experts say is novel on its face, has raised questions about whether members of the jury have been improperly discussing the case.

Campbell told attorneys Monday that he plans to question jurors about the issue when they return to Ventura County Superior Court today. The jury received a four-day weekend beginning last Thursday when the defense wrapped up its case.

"I don't know what we are going to find out," the judge said, referring to the question about using computers. "This is a new one to me."

Prosecutors say they don't have a problem with the request, but Dally's attorneys object to jurors bringing their personal computers into the deliberation room.

Dally, 37, is facing murder, kidnapping and conspiracy charges. He is accused of planning to kill his wife, Sherri, with his longtime lover, Diana Haun, who was convicted of the murder last fall and sentenced to life in prison.

At issue in Dally's trial is whether he conspired with Haun before the murder or simply helped her cover up evidence afterward.

Defense attorneys want the jury to consider the latter as an option, and asked Campbell to provide an instruction on what it means to be an accessory after the fact.

Although prosecutors opposed such a move, Campbell ruled that it could be included in the numerous instructions read to the jury before deliberations begin.

Legal experts said the judge's ruling could hurt the prosecution's case.

"I think that it is a benefit to the defense," said Loyola Law School associate dean Laurie Levenson. "It gives the jurors a compromise position. They can find him responsible without subjecting him to the most severe punishment."

According to the California Penal Code, an accessory is someone who is not involved with a crime before it is committed, but who knowingly conceals the offense afterward.

A classic accessory after the fact is someone who helps cover up a crime by destroying evidence or providing false information to law enforcement to send police down a cold trail, Levenson said.

The punishment for such a crime ranges from 16 months in jail to as many as three years in prison. Dally, who has been jailed since November 1996, has already served the minimum time.

If he were convicted as an accessory and the judge imposed the maximum sentence, Levenson noted: "He'd be out fairly soon."

After his ruling on jury instructions, Campbell turned to the issue of possible jury misconduct and the request to bring in personal computers.

Last week, a juror sent a note to the judge that said "several jurors" were interested in bringing their laptop computers to court. Because the note suggested that jurors had discussed the idea, attorneys became concerned about whether the group had discussed other issues.

Jurors are strictly admonished not to discuss a case until it is given to them for deliberations.

While saying he doubted the jury had engaged in any kind of improper discussions of the case, Campbell said he needed to launch an inquiry.

"We need to take care of this issue and find out what is going on," he said.

Provided no misconduct has taken place, Campbell asked the lawyers whether they opposed the request to use computers. Defense attorney James M. Farley said he did.

"I strongly object to them bringing in their own computers," he said, explaining that there was no way to safeguard against jurors bringing inappropriate information into deliberations through their computer files.

But Deputy Dist. Atty. Lela Henke-Dobroth told the judge that she sees nothing wrong with the request.

"The fact that they want to bring in a personal computer in this day and age is not surprising," she said.

In all trials, jurors are instructed not to conduct their own investigations. Henke-Dobroth said courts trust jurors not to violate that instruction by bringing outside information into deliberations--whether it is contained in a computer, a purse or a briefcase.

In all court cases, jurors are given blank notebooks at the start of trial, which remain in the courtroom until the verdict is reached. The jurors' notes are kept by the court.

Loyola's Levenson said that she had never heard of such an issue being raised before.

"I'm not sure what's wrong with it," she said. "If we are going to give them pen and paper, why not the modern-day version?"

The jurors' request raises a new and interesting issue, possibly one never addressed in a court statewide. But given the high stakes involved in this particular case, Levenson said the judge will probably proceed cautiously.

"You don't generally experiment in capital murder trials," she said.

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