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The Winning Brief

How'd ya like to have this peer on your jury?

Jose Mose Caudillo was on trial for a gang-related shooting.  His lawyer had just used his last peremptory challenge when in walked Prospective Juror No. 13.

No. 13 was an attorney with City Attorney’s Office.  (In California, the City Attorney's Office prosecutes crimes and defends the city against lawsuits.)  His area of expertise?  Gang-related activity.  Indeed, he wrote the brief in the definitive anti-gang case in California (People ex rel. Gallo v. Acuna).  He and other people in her office regularly litgated against Caudill’s lawyer.

During jury selection, Caudillo's lawyer and the trial court had the following colloqy with No. 13:

Judge: Is there anything about that acquaintanceship that would prevent you from being fair and impartial in this case?

No. 13: Well, I mean, it's been uncomfortable.

Judge: Please answer the question.

No. 13: I don’t know.  I would try not to have it affect my decision-making process, but I can't tell you 100 percent that it wouldn't.

Judge: Trial counsel is not on trial, and you’ll have to set aside any antipathy.  Can you do that?

No. 13: I’ll try.

Judge: You'll be taking an oath to judge the case on the evidence and the instructions on the law. Will you abide by that oath?

No. 13: I will do my best to abide by the oath, yes.

Would you want that juror judging you?  Would a prosecutor want a criminal defense lawyer on his jury?

Then Caudillo's lawyer asked No. 13 some questions.

Lawyer: If you had a brother who was on trial today and there was another attorney sitting in your position with like understandings and bias between the two of us, would you want to have your brother have that attorney sit on this jury?

No. 13: No. I'd rather have somebody who's removed and unfamiliar with any of the attorneys or parties sitting on the case, most definitely. I would prefer to have somebody sitting on a jury who didn't know any of the attorneys, who didn't have any contact with the police department, who was doing it, and probably had less knowledge about gang activity and the San Jose Police Department's involvement in the gang activity than I have.  No one wants to sit here and say they're not going to be unfair or impartial. I would certainly try, but I can't say beyond any doubt that none of my--that none of my background would influence how I would view the case and the evidence.

Caudillo's lawyer brought a challenge for cause: The judge denied it.  Prospective Juror No. 13 became Juror No. 8.  Caudillo was convicted, and appealed, asking the appellate court to order him re-tried with an unbiased jury.  His request was denied, in a decision so tortured only someone with three years of law school could have written it.  People v. Caudillo.