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While deliberating the fate of accused murderer Roy Garcia five years ago, Santa Clara County, Calif., jurors were allowed to revisit the crime scene, but the defendant and his lawyer weren’t permitted to go along. On Thursday during oral arguments, the California Supreme Court appeared to think that was a mistake because jurors essentially took new evidence from the Morgan Hill, Calif., site and Palo Alto, Calif., defense lawyer Thomas Nolan was deprived of objecting to that evidence in person. Chief Justice Ronald George led the charge by pointing out that Santa Clara County Superior Court Judge Hugh Mullin III — who went along on the revisit — told jurors they could take new evidence and permitted them to discuss the case while on the trip if they were outside his earshot. Denying Nolan the right to attend, George said, eliminated any safeguards against improper conduct. “[Nolan] was told he couldn’t be there,” George said. “How could he object?” George and the other justices, however, indicated that while they might rule that the revisit was an error, it might not rise to the level of prejudicial error warranting a reversal that would set Garcia free. Garcia, a cattle farmer, was sentenced to life imprisonment without the possibility of parole for shot-gunning to death his neighbor, mental health therapist Debbie Gregg, in November 1998 after a long and searing dispute over their adjoining property in a remote part of Morgan Hill. Gregg, who was the galvanizing force behind an effort to block unapproved changes — such as a small dam and a graded road — on Garcia’s Sleepy Valley Ranch, was found dead near a partially constructed fence dividing her land from Garcia’s. Jurors, who had gone to the crime scene during the trial, requested a revisit during deliberations, presumably to test out the prosecution’s theories that Garcia, who was also charged with lying in wait, had ambushed Gregg. Part of Garcia’s defense was that Gregg had been shot from a short and visible distance, suggesting that the killer had been someone she knew and trusted. Defense lawyer Nolan had objected to the revisit, noting that the crime scene had changed over time and that unbeknownst to him prosecutors rebuilt a fence complete with wooden dowels that helped determine the trajectory of the bullets fired at Gregg — a key piece of prosecution evidence. On Thursday, George asked Garcia’s appellate lawyer, San Francisco’s Dennis Riordan, whether the trial judge had not only denied Nolan the right to attend the revisit, but also had invited jurors to find new evidence. “Yes, your honor,” Riordan, of Riordan & Horgan, said. “He told the jurors, ‘You can pretty much have the place as you want.’” When Justice Joyce Kennard brought up the question of prejudice, Riordan argued that the trial court’s decision prevented him from objecting to jurors’ testing out prosecutorial theories in the field and even stopped him from weighing in when a juror asked in the courtroom before the trip whether laser pointers were permitted. The judge responded no to that question, but did allow jurors to reconstruct site-line trajectories for what Riordan called “a prosecutorial experiment.” “Without defense counsel there, the court is unable to say what would have happened if defense counsel was there,” Riordan said. “We have to have an enormous presumption there was prejudice.” Justice Carlos Moreno asked whether there would have been a problem if the first crime scene visit had been videotaped and replayed during deliberations in place of making a return visit. That would have made the tape just another exhibit that could have been viewed in the deliberation room. San Francisco-based Deputy Attorney General John Deist met resistance when he said that the state sees the second visit to the crime scene as just another exhibit. “Why is that?” George asked immediately. “An exhibit doesn’t change. A crime scene, by its definition, can change.” Deist tried to counter by noting that exhibits change too: Blood stains on clothing can fade and mud can flake off. But George pounced again. “Isn’t there a difference between normal decay or deterioration and the situation here?” he asked, where two years had passed between the murder and the trial. Deist also tried to argue that the location of the shooter wasn’t that important to the overall case because the prosecution had plenty of evidence linking Garcia to the shooting, most importantly motive. The evidence, he said, indicated that Garcia was Gregg’s only enemy. “And isn’t that basically all you have?” George countered. The chief justice also pointed out that one juror brought along a bright yellow glove and hid in the bushes to see whether someone could conceal themselves for an ambush. Deist said the attorneys could expect jurors to test out both sides’ theories while on the trip, and that a man with a yellow glove isn’t any different than a woman showing up in a yellow blouse. “If jurors want to take evidence,” he had argued earlier, “the presumption is to let them see what they want to see.” A ruling in People v. Garcia, S124003, is expected within 90 days.

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