Sunday, October 3, 2010

Juror's regret prompts re-trial bid
in controversial People v. Mercer

by Tom Nadeau

Sentencing of Timothy Brian Mercer was postponed at the last moment for one month because one of the 12 jurors who convicted him of lewd and lascivious conduct with a girl under 14 had expressed deep misgivings about her ‘guilty’ vote.

Defense attorney Chad Cameron Couchot asked for the delay to give him time to verify Juror #9’s misgivings and decide whether they provided sufficient reason to re-try the 43-year-old Mercer.

As it stands, Mercer, faces from a maximum of eight years in state prison to a minimum of five years on probation, depending on which option Yuba County Superior Court Judge Kathleen Rose O’Connor imposes in People v. Mercer, #09-281.

Whichever term O’Connor chooses, Mercer will have to register as a sex offender forever more.

Too late the phalarope?* ...

O’Connor initially objected to the sentencing delay request on the grounds that Juror #9’s letter of regret had been filed too late.

Deputy District Attorney Melanie Bendorf also scoffed at the notion of an 11th-hour temporary reprieve for Mercer, saying the reasons given were “inadequate why defense needs to investigate.”

However, Notable Trials has obtained a copy of Juror #9’s “To whom it may concern” letter to the court and the reasons cited appear to be substantial and straightforward.

After first noting that she did not know Mercer personally, Juror #9’s letter states:
As a juror in his trial, I felt very uncomfortable making a decision based on the “Evidence” provided against Mr. Mercer. Literally the only “evidence” provided against him was [a minor-aged girl’s] testimony. Also, the D.A. kept referring to an interview conducted by Mary Barr [the prosecution’s investigator] on [the minor-aged girl]. It discomforted me greatly that the interview conducted was never shown to the jury; I was very confused to say the least. We were a hung jury for about three days, and it was very difficult for us to make a decision based solely [the girl’s] interview. It wasn’t that we didn’t believe [her] but she was a child who appeared to be very confused.

The judge gave us, the jury, many rules to follow ager the trial for our deliberation. That is the only reason we came to the guilty verdict. We, the jury, had no evidence to discredit [the girl]. And the way we perceived the judges [sic] rules was that we had to believe her if she was not discredited. So in the end [the girl’s] testimony was the only “Evidence” that condemned Mr. Mercer.
During the Mercer trial Notable Trials reported:
The jury of six men and six women deliberated for three days. During that time they asked for five read-backs and declared themselves hung three times. At one point, it came out that the jurors were split, 8-4.

Each time they declared themselves unable to agree on a verdict, Judge Kathleen R. O’Connor ordered them back to the jury room and to continue deliberating.

The four outsiders were eventually persuaded to change their minds and Mercer was convicted as charged.
Juror #9’s notarized affidavit to the court continued:
I feel that [the girl] was not lying about being molested at some point in her life; [emphasis added] however, I do feel that she blamed Mr. Mercer of these crimes because she was comfortable with him and in his home, and also because she was finally ready to open up about these horrendous crimes committed against here.

I ask you [the judge] to reconsider his trial, or sentence him lightly. I am 100% positive in my heart that he is not guilty [emphasis added] accused against him.
The girl in question was a seven-year-old foster child who had previously resided in and been removed from other households before being received by the Mercers.

Juror #9’s doubts seem to be based on her concerns that the incriminating statements the prosecution investigator had wiggled out of the girl using play-toy props might just as well have been references to a prior molester, but transferred to Mercer because she felt safe with him.

Citing the late request for a delay and re-trial, O’Connor demanded Couchot make his request under oath and after questioning.

Under oath, Couchot explained that he needed the extra time in part because Juror #9’s letter came in at the last minute and the defense investigator was out sick that week and was unavailable.

However, once the investigator was recovered it would only take a few days for her to investigate and substantiate the juror’s doubts. Then it would take him another week to write the motion, Couchot told O’Connor.

An added minor complicating factor was that O’Connor was going on vacation the next day and she would be out for some time, in part because the walnut season is coming to a close and it is widely known that O’Connor, also an orchardist, likes to take part in the harvest.

After grilling Couchot, O’Connor rescheduled Mercer’s sentencing until 9 a.m. Nov. 8. She also ordered the defense to have its investigative report and motion in my Oct. 29 and the prosecution to respond by Nov. 5.

Juror regret is not uncommon. Here is another instructive example.

*Too late the phalarope reference explained.

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