San Jose, CA: Lone holdout on jury in San Jose murder case could be dismissed

By Tracey Kaplan
tkaplan@mercurynews.com
Posted: 08/02/2010 07:24:02 PM PDT
Updated: 08/02/2010 10:34:28 PM PDT

Three jurors stunned a San Jose courtroom Monday by testifying they couldn't reach a unanimous verdict in a high-profile murder case because a single "belligerent" juror had fallen asleep during the trial and refused to sift through the evidence with an open mind.
Santa Clara County Judge Marc Poche now faces the delicate task of deciding whether the juror in the murder trial of Jason Cai has ignored his instructions and failed to deliberate or merely disagrees with the other 11 jurors. And he must do so in the shadow of an appellate court decision last year that found another local judge improperly dismissed a juror failing to deliberate.
But even the defense attorney in the Cai case said Monday he was worried about Juror No. 6's behavior -- increasing the chances that Poche could replace the juror with an alternate who has sat in on the six-week trial but not participated in deliberations. The addition of a new juror would force the jury to start weighing the evidence anew against Cai, who is accused of gunning down attorney Xia Zhao to prevent her from representing his late wife's family in a $15 million wrongful death suit against him. Poche is expected to question the jury further today.
"I'm concerned with the comments made during the case," said Deputy Public Defender Miguel Rodriguez.
The juror under scrutiny apparently made impatient comments during the trial and in deliberations about wanting the case to be over by the beginning
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of August, according to one juror's testimony. Another juror said he had to elbow her a couple of times during the trial because she'd fallen asleep.
Asked if Juror No. 6 was making a good-faith effort to weigh the evidence during deliberations, the three jurors said they didn't think she was.
"I felt the person was very close-minded from the moment we were all in there," one juror said.
Last year, the 6th District Court of Appeal noted jurors have the right to make up their minds quickly -- as long as they don't sit in a corner reading a book while the jury deliberates or otherwise disengage from the process.
But another member of the panel in the Cai case said the juror didn't follow the judge's instructions to weigh the evidence.
"It is my opinion, this person came in with a certain set of beliefs and was resistant to discussing the findings in a rational manner," another juror said. "She was belligerent, rude to other members of the jury -- obstructing at times."
The stunning testimony came as the jury was at an 11-1 impasse after deliberating for nearly four days. Jurors were not permitted to divulge to the court which way the panel was leaning, but sources close to the case said it appeared to be in favor of finding Cai guilty.
If the jury deadlocks, it would be the second time Cai has been accused of killing someone -- only to have a mistrial declared because the jury couldn't reach a verdict. Prosecutors said they would refile the case if jury cannot reach a verdict.
In 2003, Cai was charged with drowning his wife, Ying Deng, 30, in a case closely followed by the Chinese-language media.
In 2006, a jury acquitted him on the murder charge and deadlocked 8-4 against the lesser-included charge of voluntary manslaughter -- after the coroner who examined her body said the drowning could have been accidental. In 2007, the District Attorney's Office dismissed the manslaughter charge. But the mother of his late wife sued him for wrongful death, eventually hiring Zhao as one of the attorneys.
Now, with Cai facing life without parole in his second murder trial, the mostly circumstantial case against him relies on the jury believing Cai is Zhao's only logical killer. Zhao, 39, was killed the morning of July 1, 2008, in the parking lot of her law office in San Jose as she arrived for work.
It was in September that a Santa Clara County man who was sentenced to 292 years and eight months to life in prison for molesting three teenage brothers succeeded in getting his conviction overturned on the grounds that the judge improperly dismissed the lone juror who would have voted "not guilty" and brought about a mistrial.
The replacement juror appointed in 2007 by Judge Jerome E. Brock had joined with the rest of the jury in finding Ronald D. Rivers guilty of multiple sex offenses, as well as several counts of furnishing the drugs Ecstasy and marijuana to minors.
Contact Tracey Kaplan at 408-278-3482.