Disorder in the Court : Jury Alters Verdict After Defendant's 'Three Strikes' Outburst; Prosecutors Say Guilty Finding Should Stand

By ALAN ABRAHAMSON

May 15, 1996 12 AM PT

TIMES STAFF WRITER

When the jury came back with a verdict that he was guilty of possessing 0.07 of a gram of cocaine, Henry Jackson Jr. let loose with an emotional outburst that apparently shocked jurors into changing their minds.

As the word “guilty” resounded through the wood-paneled courtroom, Jackson stood and picked up the heavy table in front of him. As it crashed back down to the floor, he cried out to jurors: “I want you all to know you put me away for 25 to life.”

A Los Angeles Superior Court judge tried to shush him. But Jackson continued. “On some dope the police set me up with,” he said. “This ain’t right!” he yelled. Bailiffs had to carry him away.

A few minutes later, jurors were asked again if indeed the verdict was guilty--asked this time not as a group, but individually. Apparently shaken by Jackson’s outcry, two changed their minds and said no--including the foreman. The judge sent them back to the jury room to resume deliberations.

The next day, what had appeared to be a conviction under the state’s “three strikes” law ended in a mistrial, provoking concern that others facing the 25-years-to-life prison term the law mandates also might try to undo a conviction by acting up in court and playing to jurors’ emotions.

The case, which ended last week at the Criminal Courts Building, has prompted a boycott of the judge’s courtroom by some prosecutors. And it has stirred debate over a simple, but highly technical, legal issue: When is a conviction truly a conviction?

Defense attorneys say there never was any conviction. State law--written in 1872 and in stilted style--says jurors may be asked individually about a verdict, and if “anyone answer in the negative, the jury must be sent out for further deliberation.”

“It happens that when individually required to speak from their heart . . . [jurors’] uncertainties come out apart from what happened in this courtroom,” Deputy Public Defender Leslie Ringold said in court, according to a transcript.

Prosecutors maintain that Jackson was properly convicted after the foreman handed over the forms to the court clerk and the clerk read the guilty verdicts aloud.

“So say you one, so say you all?” the clerk inquired of jurors before Jackson’s outburst. All answered yes.

Prosecutors intend to ask an appellate court to declare that Jackson was, at that point, properly convicted. Otherwise, several deputy district attorneys said, word quickly will get around that an outburst in court can produce a mistrial.

Problems already have surfaced in “three strikes” cases in other Criminal Courts Building courtrooms.

In Judge Carolyn Kuhl’s court, a defendant facing a third strike tried to throw a table late last week after the judge issued a ruling he didn’t like.

And in Judge William Pounders’ court, a juror deciding a “three strikes” case said last Friday--after a partial verdict had been returned--that he no longer was comfortable with his vote. The defendant apparently whispered a comment to the juror that made him edgy. Ultimately, however, the juror stayed on the case.

“These guys are crafty over in the jail,” said Deputy Dist. Atty. Bill Hodgman, who supervises the prosecution of cases at the Criminal Courts Building. “They’re going to hear about this. They’re going to hear that a guy is going down the tubes on three strikes and yet the case ends up getting scuttled. This creates a very ominous precedent.”

In the meantime, 45 prosecutors have opted to boycott the courtroom of Commissioner Timothy Murphy, a former veteran public defender now sitting as a temporary judge.

Deputy Dist. Atty. Peter Berman, who heads the group of 45, said Tuesday he was uncertain how long the boycott would last.

“I think the judge made a big mistake in not clamping down on what the defendant had done,” Berman said. “And then he rewarded him for his outburst.”

Defense lawyers said the boycott is inappropriate.

“The problem is, D.A.s are so used to getting their way on everything now that when they get an adverse ruling, they feel compelled to take this kind of action,” said Assistant Public Defender Robert Kalunian.

Murphy, who took the bench in 1993 after 15 years as a public defender, stressed that he could not comment specifically on Jackson or on his case. But he denied any suggestion that he was biased in favor of defendants.

“I’m not aware of anyone who had [a case] here who doesn’t think they got a fair shot,” he said. “I’ve got my detractors on both sides.”

The Jackson outburst took place May 8. Jackson, who also goes by the name Kenny Smith, was charged with a felony count of possessing a rock of cocaine and a lesser misdemeanor count of possessing a pipe typically used to smoke the drug.

Jackson, 27, has several prior convictions, according to Deputy Dist. Atty. Teri Hutchison.

He was convicted in 1986 of two counts of robbery and a count of kidnapping. In 1988 he was convicted of grand theft, and in 1990 of attempted robbery.

And in 1993 he was convicted of selling “bunk,” a substance--typically soap--that looks like crack cocaine but isn’t. The law calls that “sale in lieu of a controlled substance.”

Jackson was arrested again last Nov. 20. Police alleged that they found the pipe and a rock of cocaine--0.07 of a gram--inside.

Jurors were not told during the trial that the case was a three-strikes matter. Jackson did not testify in his own defense.

Just after the verdicts were read aloud, Jackson stood up and began yelling. Before being hauled away, his last comment was: “Twenty-five to life for some punk-ass dope.”

Murphy called a short recess. When court resumed, he polled the jurors. The vote was 10 to 2 for guilt on both counts.

Murphy excused jurors for lunch. When they came back, he polled them again. This time--though there had been no further deliberations--the vote was 8 to 4 for guilt on the first count, 9 to 3 on the second.

Over Hutchison’s objection, Murphy ordered further deliberations.

The next day, the jury returned with a verdict of guilty on the misdemeanor charge. But the foreman announced that jurors were deadlocked on the felony count, now by 10 to 2.

“I think [two jurors] refuse to look at the law and what the evidence was” another juror told Murphy.

The judge declared a mistrial on the felony count, sent Jackson back to County Jail and ordered a hearing on May 28.

Murphy also said: “I feel bad by the way this happened, and it’s something that I don’t think any of us will be proud about.”

He added: “Maybe it’s what Mr. Jackson wants in terms of result. But I don’t think any of us look good or can feel good about somebody doing something that’s outside the bounds and not fair.”