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Convicted murderer Roy Garcia won a new trial Thursday when the state Supreme Court ruled that defendants and their attorneys should be allowed to accompany deliberating jurors to crime scenes. Garcia and his trial lawyer, Palo Alto’s Thomas Nolan Jr., weren’t permitted to go along in 2000 when Santa Clara County jurors � one week after deliberations began � paid a second visit to Garcia’s rural Morgan Hill ranch, where Deborah Gregg was shotgunned to death in November 1998. “When a trial court permits a jury to revisit a crime scene after the jury has begun deliberations,” Chief Justice Ronald George wrote for a 4-2 court, “the defendant and his or her counsel have the right to be present and observe what occurs.” Justices Ming Chin and Kathryn Mickle Werdegar agreed, but dissented on granting Garcia a new trial, saying the overall evidence was enough to convict. A former Gilroy resident with a carpet store in San Jose, Garcia was convicted of ambushing Gregg, a San Jose mental health therapist, on his 250-acre Sleepy Valley Ranch in Morgan Hill, where he planned to raise cattle. Gregg’s body was found on Garcia’s side of a fence that had long been the subject of a boundary dispute. Gregg had been the prime force among a group of neighbors complaining about unauthorized changes � such as a small dam and a graded road � Garcia had made on his land. Jurors visited the crime scene during the trial, with the judge, defense lawyer and prosecutor present. But when they returned during deliberations on Sept. 5, Santa Clara County Superior Court Judge Hugh Mullin III ruled that neither the attorneys nor Garcia could go. While it has been state law since 1886 that defendants and their lawyers have a right to be present on jury trips, Mullin equated the post-trial visit in Garcia’s case to jurors’ re-examination of physical evidence inside a jury room. He held that the trip was technically part of deliberations to which the attorneys weren’t privy. Mullin attended, but told the jurors not to say anything within his earshot. San Francisco’s First District Court of Appeal agreed with Mullin last year, over an ardent dissent by Justice Maria Rivera, who felt that the trip gave jurors an opportunity to take new evidence to which the attorneys couldn’t object. “It is one thing for jurors to examine and manipulate a pistol, or a duffel bag and a safe and a set of keys in the controlled environment of a jury room,” she wrote. “It is quite another for jurors to spend nearly an hour hiking around on an acre or so of land with virtually no supervision.” Chief Justice George was so taken by Rivera’s dissent that he mentioned her argument several times, even quoting her verbatim in his own opinion. “Unlike a jury’s examination of an exhibit in the isolated and controlled environment of a jury deliberation room,” he wrote, “a jury’s return visit to the site of a crime � particularly the kind of extensive outdoor crime scene at issue in this case � creates a much greater risk that the jury potentially will receive new or improper evidence. “As the dissenting justice in the court of appeal observed: ‘Even with precautions in place, it simply is not possible to anticipate and exclude all potential evidentiary intrusions, be they planned or inadvertent.’” George advised, however, that since there are potential pitfalls in post-trial jury trips, judges should first examine the setting with each side’s attorneys and be prepared to let the lawyers respond if the trips result in new evidence being taken. Chin disputed the majority’s assertion that the evidence against Garcia was largely circumstantial and “not overwhelming or irrefutable.” “No evidence was presented,” he wrote, “that anyone but defendant had the motive (the heated ongoing dispute, accompanied by threats), the means (possession of, and familiarity with, several shotguns) and the opportunity (the murder occurred on defendant’s own property) to kill Gregg.” He called it “simply inconceivable” that the jurors would have reached any verdict other than guilt even if Garcia and Nolan had been present. San Francisco Deputy Attorney General John Diest, who argued the state’s case before the Supreme Court, couldn’t be reached for comment Thursday. Nolan said he was thrilled for Garcia, adding that he “deserves a new trial.” He also said he wasn’t sure if he would handle the retrial. Dennis Riordan, who represented Garcia on appeal, said the ruling is important for “what it prevents from happening.” “No court, I believe, in America has ever said that it’s fair to conduct a jury view without, at least, counsel present,” the Riordan & Horgan partner said. “So [the decision] eliminates what would have been an extraordinarily dangerous precedent.” Riordan noted that Garcia, incarcerated at the High Desert State Prison near Susanville, has always maintained his innocence, and that the case against him was “one of the weakest murder cases” he’s ever seen. The ruling is People v. Garcia, 05 C.D.O.S. 6641.

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