#10 The Jury Trial where I Learned (the hard way) that My Instincts Matter

#10 was my first jury trial with significant media exposure. It involved a victim who went onto property that defendant was squatting at in Chico. He and his dog were attacked by the defendant with a knife and eventually chased off the property. The victim screamed for help as he ran away. One witness opened her door to see what was going on and the defendant threatened her with the knife; prompting the witness to call 911. Another neighbor came outside and the victim hid behind him. This neighbor was threatened with a knife by the defendant too.

The defendant represented himself, in pro per, and claimed that he was acting in self-defense. He took the stand and said his knife was used for “urban and wilderness survival” against an agressive dog being used as a weapon by the victim. However, all the witnesses were in agreement that the dog was not acting agressively even after the dog had been stabbed in the mouth by defendant.

The combination of animal cruelty and the issue of crime as it related to the unhoused in Chico were, and still are, hot-button issues for local media which meant that a reporter covered the entirety of the jury trial. This added an additional layer of pressure to the jury trial as it progressed. It was also my first felony jury trial. To complicate matters further, the defendant was also self-represented.

Pro per defendants are particularly tricky in the realm of criminal prosecution. Prosecutors want to make sure that justice is served, which means balancing the rights of the defendants, the victims, and the public within the parameters of the law. When someone represents themself it falls on the prosecutor to make sure their rights aren’t violated as a jury trial progresses. These cases often get appealed and the pitfalls of self-representation can set up an appealable issue if caution is not used.

Jury selection in this case went longer than I anticipated and I felt that the jury we had were getting impatient with the process. Against my instinct I did not use a peremptory challenge on one of the jurors and that ultimately was a costly mistake. A peremptory challenge, at the time, allowed either side to kick a certain number of jurors off the panel without giving any specific reason why. The particular juror I was concerned about reminded me a lot of my good friend’s grandmother. A woman I had grown up around and loved, but knew was unable to make any hard decisions about wrong doing-she was just too nice.

However, the evidence in this case was strong, so against my instinct she remained on the jury. We conducted closing arguments the evening before and the jury was released to go home before starting deliberations the next morning. This juror showed up the next day with an ice chest full of food for her fellow jury members. A wonderfully kind gesture, but a gesture that solidified the fact that she was going to be problematic for me.

She was. The jury ended up hanging with 11 jurors on the side of guilt and 1 for innocent. My instinct had been right and I had ignored it. This kind woman reminds me to trust my gut at the beginning of every trial I have started since this date and likely into the future. While she hung up the jury on #10, she has reminded me to take the time I need in many trials that have followed. When it comes to jury selection, instincts matter.

#9 The Jury Trial Where Criminal Law met Water Law at a Crossroads

There have been multiple times in my experiences as a prosecutor where I have had to dig deep into some very non-criminal law areas in order to both and proceed with prosecution. Crimes that happen in California that impact our natural resources is one of those areas.

In California we have complicated regulatory schemes involving farming and use of our natural resources. Enforcement of the regulations is also given to multiple agencies throughout the State, and every once in a while, the District Attorney’s office is called upon to enforce criminal violations of these regulations, when appropriate.

It should also come as no surprise that water rights have been discussed, fought over, regulated, and litigated for hundreds of years. It is a complex area of the law. You take courses on it in law school and attorneys specialize in water law in California-choosing only to represent clients in this very particularized area.

California also has several regulatory and enforcement agencies that all work within their government roles to enforce regulatory rights. The Department of Fish and Wildlife for example is tasked with giving permission to divert, obstruct, or alter streambeds. This is typically done by a landowner who asks for permission, and after consultation with scientists, permission is either granted or denied. Completing work in a streambed that constitutes alteration, diversion or obstruction wihtout permission is a crime.

Jury trial #9 involved the diversion and obstruction of a streambed in the foothills of Butte County in order to bring water up a hill to use in a marijuana grow on the property. The incident started in 2009: Marijuana was still illegal to possess or grow, there were no regulatory schemes around cultivating it, and it tended to be highly destructive to the land surrounding it. In general, highly toxic pesticides and other chemicals would be allowed to seep into the ground, our public forests would be stripped of wood of foilage to make way for the grows, and streams would be altered, diverted, and sometimes destroyed entirely to provide nutriuents for the plants.

In this case the defendant had installed a 2,500 gallon water tank in the middle of a stream located on the south portion of property adjacent to his own (the property was owned by Union Pacific Railroad). The tank was outfitted with a pump to allow the water to travel up a hill and onto defendant’s land to irrigate a large marijuana grow. Later, the defendant cut trees down on his neighbors property, without permission, in order to cut a road into his own land to allow a well driller access.

Both sides utilized environmental scientists as experts as well as land surveyors. Both the effects on the stream and the location of the road were at issue in the case. The case became so technical that the experts were literally fighting over when a stream becomes a stream and subject to regulation by the State.

During this time, prosecutors both in Butte County, and around the State were attempting to find creative ways to hold illegal marijuana growers accountable for the environmental harm they were causing with their grows. This statement is still true today. While regulations on cultivation of marijuana are present, the illegal grows are still doing an environmental number in our forests and streams.

In this case we came up with the novel idea of charging the defendant with actual theft of the water-2,500 gallons of it on the day he was arrested based on the full water tank. The argument was the People of the State of California are the owners of our natural resources (aka water) but we have granted regulatory authority to the Department of Fish and Wildlife to help protect it’s use. Defendant, by capturing the 2,500 gallons from the stream without permission, had stolen that water from the People. That water had been destined to travel through tributaries to eventually reach the Oroville Lake Reservoir where it would benefit wildlife and plants along the way and ultimately be used by the People as regulated by the Department of Water Resources.

A jury found the defendant guilty of diversion of the stream and theft of water as well as trespass to land by injuring timber. The case had been tried in 2014, during a period of drought in California. Water was on everyone’s mind and the importance of illegal diversion was, and still is, an important area of enforcement.

No one had been found guilty of theft of water before in California! This case went up on appeal and ultimately, in a published opinion, we received clarity that Theft of Water is not a crime in California, unless the water had previously been captured for use by someone else and then it is subsequently stolen (as an example think about someone who fills a water truck up and then a third party takes the water truck and uses the water inside of it to fill his own tank).

Read the opinion here: People v. Davis (You may even find a direct quote from my closing argument in the opinion)

Even though clarity has been provided regarding the specific charge, the ability of prosecutors to be able to work with the law to protect both specific victims and the People as a whole is something I am very proud of doing both personally and whenever I see fellow prosecutors doing it. As the society changes, as the law evolves, and as the needs of our community change, this type of flexibility and courage is needed. It takes courage to try something new. It takes courage to stand up to the wrongs of the world and fight them in novel ways. Having courage to take a chance at a jury trial is what I learned here, at the crossroads between criminal and water law.

P.S. Water becomes a stream for purposes of regulation the moment it “daylights” or emerges from the ground. The stream in this case was sourced from water that “daylighted” less than a half mile away. It was a stream in infancy, but we could trace it’s path all the way from daylighting to the Lake Oroville Reservoir.

#8 The Jury Trial Where the Verdict Was Reached Outside the Courtroom

A lot of effort is involved in keeping our jurors insulated from any outside influences that could affect their opinion of the case. The Court gives them instructions that jurors cannot do any independent investigation, cannot look up or research the people involed on the internet, or do any research on legal concepts. Lawyers and investigators and ordered not to speak directly to jurors at all. Not even a “good morning” or a “hello.” We have to avoid even the appearance of inpropriety.

A jury trial is supposed to take place inside a bubble. The lawyers guide the facts as allowed by the judge and the Court instructs the jurors on the law. It’s the jury’s job to apply the law to the facts in that little bubble to see if a crime was committed-proving that is a prosecutor’s job beyond a reasonable doubt.

#8 was a battery case between two women who were involved in a road rage incident. The defendant got mad because she thought the victim’s vehicle cut her off and then refused to let the defendant pass as both vehicles traveled own Forbestown Road in rural Butte County. The defendant followed the victim into the parking lot of a grocery store and confronted the driver about it. The victim, got out of the car and between defendant and the driver, telling defendant to leave. Defendant then grabbed the victim by the hair and punched her in the face numerous times, leaving a bruise over the left eye and a clump of hair pulled out.

At trial the defendant claimed self-defense saying the victim struck first by chest bumping the defendant numerous times forcing the defendant to stand her ground.

In assaultive crimes the prosecution has to prove that it was not self-defense, which can be a tricky thing to prove. How do you prove a negative? We usually rely on the facts and circumstances of the incident-who threw the first punch, who intiated the negative conduct, the severity of injuries or their location, past history between the two parties etc. We use circumstantial evidence to show that the only reasonable conclusion was that this was not self-defense.

Defense can bring in character evidence of the victim showing they have a tendency to be violent and only then can we rebut that with character evidence of the defendant doing the same.

Self-defense is tricky. And in this case, the only witness we had who was not directly involved in the road rage incident did not see the beginning of the fight. To further complicate matters every witness in this case, including the defendant, provided slightly different versions of events; the case was three years old by the time it got to trial and while everyone tried their best to remember what happened, details fade as time passes on.

Our victim in this case testified and was put through a rather brutal cross-examination regarding her tendency towards violence. She got a little heated with defense counsel on the stand but overall handled the pressure well. What happened outside the courtroom after she was done testifying ultimately swayed this jury to a not-guilty verdict. The jury had been released for lunch and was walking out to their cars. As they did they saw our victim yelling at someone on her cell phone while standing in the hallway of the courthouse. The jury later told me they beleived that the victim was quick to anger based on how she conducted herself in their presence.

In a perfect world the jury would not have seen victim out in the hallway yelling on her cell phone. It was not part of the trial, it was not evidence, and it should not have been considered. But we don’t try cases in a perfect world and the fact of the matter is that everything that happens in a jury’s presence can and will effect the outcome. This one was outside of my control and while the inability to control this behavior was frustrating, it also taught me to be aware of what everyone involved in the trial is doing at any point in the jury trial, because we want to preserve the bubble as best we can.