Hagins jury pick enters 2nd week; panel short 1 member to proceed

Attorneys this week depleted the first full panel of potential jurors without finding enough acceptable jurors to try the government’s case against Marcus Charles Hagins, a 19-year-old Elverta man accused of committing sex offenses during a burglary.

Deputy District Attorney Jennifer R. Dupré-Tokos and Sacramento-based defense attorney Michael G. Bowman accepted 11 of the needed 12 from a panel of roughly 110 potential jurors.

In People v. Hagins, CRF-09-283 Hagins is accused of threatening a 19-year-old woman with a knife in May, 2009 after sneaking into her Plumas Lake home in the pre-dawn hours.

Plumas Lake is a bedroom subdivision located in south Yuba County near the juncture of the Feather and Bear rivers.

Hagins allegedly used a so-called “ball gag” in the commission of the crime.

Ball gags are usually associated with role-playing in bondage games. The use of a gag apparently provides some sort of erotic pleasure during the sexual act, according to Wikipedia.

“The person who wears the gag is regarded as the submissive partner, while the one not wearing one is regarded as the dominant one,” Wikipedia noted.

The use of the ball gag was reportedly a factor in charging Hagins with assault with intent to commit rape.

Use of a knife in the alleged crime means Hagins also faces a possible sentencing enhancement – i.e., more years in prison – if he is convicted.

Yuba County Superior Court Judge Kathleen Rose O’Connor called for another full panel of about 110 people.

The new juror-candidates showed up Wednesday afternoon. They viewed a video about the jury process and filled out questionnaires which O’Connor and the lawyers will review. Former Yuba County Supervisor Joan Saunders was among those summoned.

Voir dire will resume Tuesday. Voir dire is a Latin legal term which literally means “to see and to say.”

The attorneys get “to see” and question the juror-candidates face-to-face. The candidates get “to say” what they think when quizzed about their personal circumstances and if they can render a fair and honest verdict.

As defined by Gordon P. Cleary: "Voir Dire is the process by which attorneys select, or perhaps more appropriately reject, certain jurors to hear a case."

Cleary is a well-regarded Rhode Island attorney whose name popped up in appeals proceedings stemming from a notorious federal RICO racketeering case popularly called "Operation Plunder Dome."

Witnesses – in particular, expert witnesses – can sometimes be examined voir dire regarding their professional qualifications and fitness to speak.

by Tom Nadeau

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Mistrial declared in Archer case; hung juries unusual, but do occur

A Yuba County jury declared itself hung, 7-5, Tuesday in the alleged child molestation case against Earnest Rex Archer, news reports indicated.

The bare majority favored a guilty verdict, the jury foreperson told Yuba County Superior Court Judge Julia Scrogin. Scrogin declared a mistrial.

The jury of 10 women and two men debated behind closed doors for four days. That was longer than the trial itself lasted, the Appeal-Democrat newspaper reported.

A former reserve deputy with the Yuba County Sheriff’s Department and narrowly unsuccessful candidate for Yuba County supervisor, Archer faced seven criminal charges altogether. The jury split different ways on the various charges, but the vote reportedly ran 7-5 on the most serious charges.

Archer is accused of molesting two foster children -- minor girls aged 11 and 10 – who lived in his Linda home.

Jurors reportedly voiced concerns that little hard evidence had been presented in the case. The jury heard no expert witness testimony and was left to balance the courtroom assertions made by the two girls and the adoptive mother of one of them and supportive good-character claims defendant’s relatives.

He waived his right to be re-tried within 60 and prosecution statements indicated that a retrial is not likely until sometime in September.

Archer told the judge he was waiving his right to a retrial within 60 days. A further hearing was tentatively set for September. At this time it is unclear whether the District Attorney will seek a re-trial.

According to several legal dictionaries a “mistrial” can be declared in two possible circumstances: 1) if the trial is conducted unfairly, “for example, because not all of the evidence is considered” or, 2) when a trial ends with no verdict is reached.
Hung juries and mistrials are rare, but they do occur.

The very same day a hung jury mistrial was declared in People v. Archer, a hung jury mistrial was declared in the Brooklyn (New York) Supreme Court murder trial of one Keith Phoenix, a 30-year-old man accused of beating an Ecuadorian man to death.

[Note: A "supreme court" in New York is the functional equivalent of a "superior court" in California.]

That jury hung on an 11-1 majority vote favoring a guilty verdict, the New York Daily News reported.

.When a jury split is that narrow, retrials are often sought. In cases such as Archer’s in which the margin is so wide, 7-5, the district attorney’s decision on whether and how to proceed is not as simple.

While hung juries are generally uncommon, for some defendants, they can be frequent. Take the multiple hung juries of the prosecutions against John A Gotti Jr., son of New York crime lord John A. Gotti.

In December, 2009, only five months ago, the New York Daily News reported that a fourth hung jury had been declared in the same case against the junior Gotti.

It's become John A. (Junior) Gotti’s favorite word in the whole world: Mistrial.

The second-generation Gambino boss heard it Tuesday for the fourth time in five years, beating yet another federal racketeering rap before heading home for a rollicking family reunion.

"It feels wonderful," said an emotional Gotti, who celebrated with hugs, kisses, tears and Chinese food after his release on $2 million bail. "I want to go home and see my children."

Gotti, who started his day in a cell at the Manhattan federal lockup, climbed into a white BMW hours later for the triumphant ride back to his $1.7million oyster Bay, L.I., mansion.

Fifty yellow balloons were tethered to the front gate of the home, where a catering truck pulled up shortly after the 3 p.m. mistrial delivered another stinging rebuke to prosecutors.

His wife, Kim, and their six kids waited inside.

Gotti junior had faced multiple federal racketeering charges. This mistrial puts him one mistrial ahead of his famed father, John “Dapper Don” Gotti.

The mistrial boosted Junior - who spent six years in prison on an earlier conviction - past his dad in courtroom successes.

John (Dapper Don) Gotti beat three cases before he was convicted and jailed for life on murder and racketeering charges.

The son said he felt his father was looking down in the days before the mistrial.
"How else can you explain it?" Gotti asked. "How rare is it for someone to fight a trial, a federal trial at that, and come out okay?"

While jurors said a fifth trial would be overkill, prosecutors wouldn't commit to giving up their relentless pursuit of the reputedly retired mobster.

by Tom Nadeau

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DA may examine Leary’s personnel file, judge rules;
Ex-sheriff’s honcho’s fraud trial set for June 29

Prosecutors may inspect former Sacramento County sheriff’s lieutenant Michael P. Leary’s personnel file the defense told a superior court judge Monday in a lightning-quick hearing Monday.

With that detail out of the way, prosecutor Michael Blazina and defense attorney William Portanova told Sacramento County Superior Court Judge Gary E. Ransom they were set to go for a trial readiness conference scheduled for June 8.

Leary was present at the hearing, but made no statements.

His trial on multiple felony counts arising from a disputed property transfer is scheduled to begin June 29. Both Blazina and Portanova avoided making any predictions whether a pre-trial settlement might be in the works.

Leary, who is also a former Elk Grove City Council member, faces four criminal allegations stemming from a disputed transfer of title for a house at 3301 Marina Cove Circle, Elk Grove, which was purchased for $610,000.

Leary, 49, was arrested and arraigned in October 2009 on charges of grand theft fraud and forgery stemming from the troubled property transfer between himself and his former live-in girlfriend Alyc K. Maselli in 2006.

Leary pleaded not guilty to all charges. If convicted, he faces up to 12 years in state prison and a fine of $75,000. He remains free on bail.

The case – People v. Leary, #09F07685 – has been tied up for six months with hearings on various pre-trial motions.

After his arrest, Leary left the Sheriff’s Department where he served for 27 years. His last rank and post was as a lieutenant serving as the jail watch commander.

Leary had served on the Elk Grove City Council for 10 years before losing a re-election bid. Prior to that, he had served as Elk Grove’s community services director.

Leary’s current situation has been described by his attorney, Portanova, as the sort of misunderstanding that can occur when a non-lawyer tries to manage his own division of property during a marital break-up.

This is not the first time Leary has been embroiled in an Elk Grove controversy in recent years.

He and sheriff’s Capt. Jim Cooper – who is now running for county sheriff – were chastised by the 2004-2005 Sacramento County Grand Jury for allegedly abusing of their official positions.

The two were sworn peace officers with the sheriff’s department and elected officials on the Elk Grove City Council at the time.

The grand jury concluded they had acted improperly when they both voted on a contract for the county sheriff’s department to provide police services for the city.

The grand jury also publicly criticized the pair for allegedly bullying the city manager and the police chief of Elk Grove.

Leary’s current woes trace back to 2005 when he and Maselli together purchased the property in question, according to statements asserted in a court affidavit.

On the initial purchase documents only Leary’s name appeared on the deed, but some five months later the deed was changed to add Maselli’s name and the two described as “joint tenants.”

Things later became complicated when Leary allegedly altered the deed by doctoring the deed with handwritten notes to indicate he owned 90 percent of the home, allegedly without telling Maselli about the changes.

Maselli lived alone in the home alone, made her portion of the mortgage payments, paid her half the property taxes and wrote off half the interest on her taxes, the court documents state.

Maselli made her payment by check, the court affidavit further stated, while Leary allegedly paid his portion in cash to avoid a paper trail that could force him to pay increased additional child support payments to an ex-wife.

Leary and Maselli were slated to marry, but they broke up in early 2008, court documents indicated.

Maselli subsequently missed mortgage payments and the dispute about their home ownership deal deteriorated into acrimony, with Leary eventually seeking to evict her from the property.

Legal actions ensued.

by Tom Nadeau for the Elk Grove News

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