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In a blistering opinion by Chief Justice Ronald George, the California Supreme Court narrowly voted Thursday to reverse a death sentence in a chilling 1990 murder case because the trial judge “tainted” the penalty phase when he dismissed a prospective juror. George’s 4-3 majority opinion sharply criticized now-retired Los Angeles Superior Court Judge Richard Kalustian, calling the dismissal “inexplicable and disappointing” and urging judges who preside over murder trials to “make a special effort to be apprised of and to follow the well-established principles and protocols pertaining to the death-qualification of a capital jury.” “As the present case demonstrates, an inadequate or incomplete examination of potential jurors can have disastrous consequences as to the validity of a judgment,” George wrote in People v. Heard, 03 C.D.O.S. 7860. Justices Joyce Kennard, Kathryn Mickle Werdegar and Carlos Moreno concurred in the decision, which remanded the penalty phase of the case for retrial. Justice Janice Rogers Brown dissented, defending Kalustian and his handling of the case. “With all due respect,” she wrote, “these criticisms not only unfairly disparage a conscientious bench officer but highlight the majority’s own failure to impose the self-restraint required of a reviewing court in these circumstances.” Brown was joined by Justices Marvin Baxter and Ming Chin. James Matthew Heard was convicted and sentenced to death for the 1990 torture-murder of his girlfriend’s 11-year-old daughter. Heard savagely beat Katrina Brown, raped her with a baseball bat and strangled her. During voir dire, a venireman identified only as Juror H was asked whether his views on capital punishment would prevent him from imposing a death sentence if the law requires it. Juror H indicated that he “might” be influenced by psychological factors in the defendant’s background, but also emphasized he would do “whatever the law states.” Over defense objections, Kalustian dismissed Juror H for cause. The Supreme Court upheld the jury’s guilty verdict, but said it was compelled to reverse the death sentence. There were no grounds for dismissing Juror H, George wrote, and under U.S. Supreme Court precedent, the error is not subject to harmless-error analysis, but is reversible per se. And, in withering passages, George heaped blame on Kalustian, criticizing his “imprecise questioning” and pointing out that judges have plenty of time to make careful decisions during jury selection. When a trial judge makes a “readily avoidable error under the circumstances before us, the public perception of justice suffers and the public fisc is squandered,” George lamented. In footnotes, the chief justice observed that “numerous courses” and a “plethora of treatises and handbooks” could have steered Kalustian in the right direction. In her dissent, Brown argued that the court should defer to the trial judge’s handling of the case. She noted, for example, that Kalustian put in the record that Juror H had taken a long time to respond to a question about his death penalty views. “In my view, it is entirely reasonable that, in light of the voir dire �� including an evaluation of credibility and demeanor — the court could conclude that Prospective Juror H.’s view would substantially impair the discharge of his duties,” Brown wrote. The defense attorney who brought the appeal said the California Supreme Court had not reversed a death case on similar grounds since 1980. Heard was a “perfect case” to argue the juror issue, said Jonathan Milberg, a Pasadena attorney who was appointed to handle the direct appeal. Defense attorneys often argue that a prospective juror was wrongly excluded, but usually the juror makes an arguably biased statement in the transcripts, he said. This time “you had a juror who said time and time again that he could vote for death,” Milberg said. Milberg said he was surprised by the opinion’s criticism of Kalustian and called the judge’s mistake “understandable.” “I have always a huge respect for judges,” Milberg said. “They are on the front line reading questionnaires and questioning huge amounts of potential jurors. I think that most trial judges are confused about jury selection in capital cases.” The deputy attorney general who argued the case, M. Susan Sullivan Pithey, said she was “disappointed” by the decision, but had not decided whether to ask the justices to rehear the case.

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