Potential juror thinks defendant is guilty before trial; gets to sit on jury and find him guilty (Updated)


Here is another in the long line of legal fictions: that you get an impartial jury of your peers. Let’s leave aside the peer part for now, because there’s already been much study on the lack of any real peers in juries selected these days and focus on the “impartial” part.

Impartial, in this context, is supposed to mean someone who doesn’t come to the trial with any predispositions. Someone who is able to be fair, listen to the evidence, and conscientiously apply the law to the  facts, regardless of whether one emotionally agrees with the result compelled by those facts.

In reality, we aren’t stone robots. Everyone comes in with preconceived notions. In these days of increasing polarity, we have ever stronger opinions about crime and criminal justice and especially those icky child molesters.

So we come to our legal fiction: rehabilitation. That’s when the judge asks an obviously biased venireperson enough questions that they eventually get the hint, no matter how stupid they are, and end up saying the magic words “I think I can be fair in this case”. Doesn’t really matter what they’ve said prior to that point, once we get to that incantation, the juror is deemed impartial and fit to serve on the jury.

You’d be a fool, however, to think that the juror has actually changed his or her views. Just ask Jose Felipe Velasco:

Jose Felipe Velasco insists Orange County Judge David A. Hoffer cheated him out of a fair trial by placing a juror on the supposedly neutral citizen’s panel after she repeatedly declared the defendant guilty before hearing any evidence.

But you knew that anyway from the title of this post. So how bad could it have really been? Very bad.

After an Orange County prosecutor gave an opening statement, Juror 112 notified Hoffer that based on her own experiences she believes criminals should forgo trials in such sexual assault cases and go straight to prison to spare victims additional turmoil.

This is, unfortunately, a very common reaction. The presumption of guilt is very strong.

The prosecutor then asked the juror: “You haven’t heard any evidence. How would you vote?”  Juror 112 responded, “I would have to vote guilty.”

The judge asked if she could return a verdict of not guilty if the government couldn’t prove it’s case beyond a reasonable doubt.

“I don’t think I would be able to,” the juror replied.

The prosecutor tried again: “Let me ask you this flat-out. Let’s say the victim takes the stand [and] you flat-out don’t believe her. In fact, you think she’s lying. You look at her [and conclude] ‘I don’t believe a word coming out of her mouth.’ Are you going to convict this man anyway?”

Juror 112 responded before the first witness in the case had been called, “That depends. I still feel he was at fault.”

Had enough? Well, there’s more:

Hoffer, appointed to the bench in 2003 by Democratic Gov. Gray Davis, and the local government’s lawyer continued to ask questions and finally got her to say she “would try” to be a fair juror.

Over defense objections, the judge put her on the panel.

So, in his bid to get a new trial, Velasco was rebuffed because eventually the juror was berated and brow-beaten into saying “she would try to be fair”.1

Obviously, Velasco was found guilty and now, apparently, he has no review of his clearly illegal conviction.

They not only took this horse to water, but forced its mouth into the lake and made it swallow the company line. You might rationally argue that a prosecutor with a duty to ensure justice is done should not have pressed for the inclusion of this juror, but we already know that not all prosecutors are concerned with justice.

When you say you’re proud of the American system and that the system “works”, this is how it works.

[Update: Thanks to the comments below, we now have the actual opinion in this case. I have a follow up post on the opinion and the omission of certain “facts” from it and the reality that even judges engage in spin.]


  1. Why didn’t the defense exercise a challenge to unilaterally get rid of the juror? I don’t know. The article doesn’t give a reason and I’m not privy to the transcript or the proceedings. It’s possible that the defendant may have run out of challenges at this juncture.

24 thoughts on “Potential juror thinks defendant is guilty before trial; gets to sit on jury and find him guilty (Updated)

  1. nidefatt

    What a weird story. Did the attorney pass this panel? What happened on appeal? How did we get to a federal habe petition? Doesn’t this guy still have the ability to appeal to the 9th circuit?

  2. Patrick

    The exchange between prosecutor, judge and juror 112 all happened in front of the other potential jurors? Why was the judge so eager to save this juror for duty?

    I once got called as a potential juror in a civil case involving a dispute between an A/C repair company and their uniform supplier. I was excluded because I said I understood how air conditioners work!

    1. Scott Jacobs

      It sounds like it might have happened in front of other, actual jurors. I mean, it has to have been after voir dire, since Juror 112 made her statements after the prosecution’s opening statement. The trial had started.

      How the defense let this one slip through is astonishing.

    2. Barb Bernhardt

      Yeah, Patrick. The exclusion wasn’t because you knew how air conditioners work. It was because you displayed intelligence, and showed you might be influenced by logic and evidence. The best jurors just believe whatever the prosecution tells them. That’s why the conviction rate is so high, and why we are seeing so many people wrongly convicted and being released after years of imprisonment.

  3. Scott Jacobs

    “Why didn’t the defense exercise a challenge to unilaterally get rid of the juror?”

    I suspect they didn’t because it was well past voir dire, and so they couldn’t.

    How that person got past voir dire in the first place is completely different question, and one that leads me to speculate about effectiveness of council for the defense.

    1. Gideon Post author

      Good points all. That is the mystery but the questions do seem to indicate it was during jury selection. I guess it could’ve been a sidebar when it arose after selection. Unsure.

      1. Scott Jacobs

        Am I mis-interpreting the line “After an Orange County prosecutor gave an opening statement” to mean “the prosecution’s opening statement at trial”, when it means “the first thing that came out of his noise-hole during voir dire”?

  4. sanchez

    And the 11 other jurors? What did they think? Don’t forget that if ONE other juror had disagreed, the Defendant would not have been convicted. It doesn’t excuse allowing this juror in, but it puts the debacle in a certain context.

  5. D G Wilson

    I may have this all wrong, but I offer the following. The defense didn’t get to excuse the juror because if I read the article right, this happened during opening arguments. The jury was already impaneled and in California law, jeopardy may have already attached. To excuse the juror may have meant releasing the defendant with no further trials. Doing it this way may have allowed for a defense appeal of judicial error which if granted would mean a new trial. If so, I would hope that the pre-trial examination of the jury pool would weed out a clearly biased juror. IN other words the system didn’t fail, the defense attorney did.

  6. D G Wilson

    Thanks for the link to the legal opinion from the Court of Appeals. After reading that I am not sure that this whole issue is about the same event. The assertions by “A Public Defender” have no resemblance to what actually happened and what was actually said. I call BS.

    1. Gideon Post author

      They aren’t my assertions. They’re direct quotes from the transcript as obtained by the author of the OC weekly article which I quote.

      1. Angie

        If it was in the federal court as the linked article indicates, I suspect it was part of a habeas petition alleging a due process violation and ineffective assistance of counsel… But I guess not all people know how to click on posted links.

  7. Barb Bernhardt

    Surely, this transcript offers a strong case for appeal of the verdict. I can hardly believe this account. What is being left out?

  8. Angie

    To preserve a challenge re court’s failure to excuse a juror for cause, the defense must exercise a peremptory challenge and exhaust his peremptories, and then, express dissatisfaction with the jury as constituted. Obviously, no perempt was used, and probably all perempts were not used…. I believe he can appeal denial of a habeas petition only if the court issues a certificate of probable cause authorizing the appeal…

  9. Pingback: Even judicial opinions spin their facts | a public defender

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  11. Donald

    Anyone who thinks we have a just justice system has been watching way too much t.v.. The system has some very obvious problems. Right from the start the defense is shackled by this system. Judges have too much power, too little true oversight and too much incentive to funnel people into the system. They limit testimony and witness as well as how much time they will allow for a trail to take place in. They are unwilling to charge witnesses for the prosecution with perjury even when event. Another problem is that attorneys are not very willing to go beyond a buck to help their clients and in the state of MN the state actually requested that attorneys not be so vigorous in the defense of their clients as it made it too hard for the State to get convictions.
    I guess there are downfalls to owning prisons for profit.
    As for prosecutors they are there for only one purpose and justice is not it. They are there to get the defendant into the system no matter what. That is what happens when you give people power without restraint, responsibility or negative ramifications for their actions or lack there of.
    Prosecutors should be held in double jeopardy. When they are caught committing criminal acts or conspiring to get or to have gotten a false convictions the prosecutor should have to sever twice the sentence and under the same conditions as their victim did or would have.
    You can not make the corrupt honest, but you can make them scared to be openly corrupt.

  12. Barb Bernhardt

    Regarding your sentence about the downside of prisons for profit, I agree strongly. Obvious conflict of interest within the (in)justice system. Prisons should never have been allowed to enter any kind of private profit system. How do we get them out now that it is so entrenched?


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