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Holding their noses and expressing regret, three appeal court justices last year reluctantly reversed the conviction of a man who had sexually abused his daughter for more than five years, starting when the girl was only 9 years old. The trial judge, the justices said, had erred by having no good cause for replacing a juror — an act that barred retrial because it would put the defendant at risk of being tried again for the same offense. To prosecutors’ horror, the justices said the molester would have to be set free. On Tuesday, the California Supreme Court, meeting in Sacramento, will hear arguments in the case in an attempt to settle part of a growing controversy over what constitutes double jeopardy. Specifically, in the current case the court will decide whether the constitutional prohibitions against double jeopardy prevent retrials when judges improperly dismiss jurors. The state claims there’s a lot riding on the court’s decision. “If this court were to conclude retrial is barred when a trial court erroneously excuses a juror who is then replaced with an alternate,” Los Angeles Deputy Attorney General Richard Breen wrote in Supreme Court papers, “trial courts might be reluctant to dismiss some jurors if removal would have the dire consequence of preventing retrial.” The issue is a messy one for the trial courts. Since May 2001 when the California Supreme Court in People v. Cleveland, 25 Cal.4th 466, ruled on the standard judges should apply in deciding when to discharge jurors, several cases have arisen in which double jeopardy was subsequently alleged. In some of the cases, retrial was barred, while in others it wasn’t. In the case being heard this week, Breen said Thursday, “there is an underlying presumption that the trial court erred in substituting a juror. So the issue before the court is, what is the result of that error? Are further proceedings now barred? This question was left unanswered in Cleveland.” In People v. Hernandez, S105271, jurors convicted Manuel Hernandez on 22 felony counts of sexual abuse against his young daughter. He was sentenced to more than 43 years in state prison. But almost exactly one year ago, L.A.’s Second District Court of Appeal threw out the conviction, stating that Los Angeles County Superior Court Judge Mark Arnold had erroneously removed a female juror who, prior to cross-examination by the defense, informed Arnold she was bothered by the prosecutor’s tone and believed the judge was biased against the defense. Over objections by the defense and by the juror, Arnold removed the juror from the panel, saying he didn’t think she could be fair, and replaced her with an alternate. In reversing Arnold, the appellate court said it had no choice “despite the heinousness of the crimes involved.” The court said Arnold didn’t have good cause to remove the juror, and that by doing so he placed Hernandez in double jeopardy. “Jeopardy bars retrial when, without legal necessity or good cause, the court alters the composition of the jury in the middle of a trial in a way that favors the prosecution,” Justice Daniel Curry wrote. “Were we to conclude that retrial is permitted under these circumstances,” he continued, “the vital and fundamental right of every citizen to trial by a fair and impartial jury would be gravely undermined and the right to be free from double jeopardy would be rendered meaningless.” Justices Norman Epstein and Charles Vogel concurred. In arguments filed with the Supreme Court, Deputy AG Breen contends that where there is no mistrial and the entire jury was not dismissed, double jeopardy does not result — even if the trial judge had no good cause in dismissing a juror. “The record shows,” he wrote, “that although the trial court presumably erred in replacing [the juror], appellant’s trial continued to a verdict before a fair and impartial jury. Under the ‘black letter’ rule established by the U.S. Supreme Court, appellant’s successful appeal from his conviction simply would not trigger the protections of the double jeopardy clause.” San Diego solo practitioner Nancy King, who represents Hernandez on appeal, couldn’t be reached for comment. But in court papers she argues that the trial judge violated her client’s Fifth Amendment right against double jeopardy by unjustly dismissing a juror who was obviously sympathetic toward Hernandez. It would be no different, she said, than a mistrial being declared to give the prosecutor a more favorable opportunity to convict. “When the additional and equally important policy that protects the defendant’s right to a chosen jury is added to the equation,” King wrote, “the answer to this question becomes only clearer.” King also challenged the prosecution’s theory that the appeal court’s decision, if upheld, could have a chilling effect on trial courts. “From the sheer number of recent cases on this issue,” she wrote, “it is evident that the prospect of mere reversal and retrial has not prevented prosecutors from asking for dismissal of jurors who are favorable to the defense, and trial courts from granting those requests. “By affirming the ruling of the court of appeal here,” she continued, “this court will not ‘chill’ the exercise of the trial court’s discretion, but will certainly ensure that it is properly exercised.” In reaching its conclusion, the Supreme Court will have to decide between two competing appellate decisions — 1929′s People v. Young, 100 Cal.App. 18, which held that a defendant had been placed in double jeopardy by the replacement of a juror, and 1988′s People v. Burgess, 206 Cal.App.3d 762, which found no double jeopardy in spite of a prosecutor’s peremptory challenge after jurors had been sworn.

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