Judge declares mistrial after jurors react to graphic photograph

sacbee.com ^ | October 25, 2002 | AP

[let freedom sing]

Judge declares mistrial after jurors react to graphic photograph Published 12:30 a.m. PDT Friday, SAN DIEGO(AP) - A photograph of a brutally beaten grandmother affected jurors in a murder trial enough for the judge to declare a mistrial.

One juror broke down in tears after seeing the emergency room photo of Emily McAllister, 86, with tubes taped to her nose and mouth, her face swollen and bandages on her body.

[let freedom sing]

SAN DIEGO(AP) - A photograph of a brutally beaten grandmother affected jurors in a murder trial enough for the judge to declare a mistrial.

One juror broke down in tears after seeing the emergency room photo of Emily McAllister, 86, with tubes taped to her nose and mouth, her face swollen and bandages on her body.

"That's what he did to her," said the prosecutor, Robert Stein, who had projected the photograph on a wall-sized screen during opening statements Wednesday. "With his fists he beat her up."

One juror began to weep.

"It's hard for me because I think about my mom," the woman said between sobs.

Prosecutors argued that 30-year-old David McAllister beat his grandmother because she wanted him committed to a mental hospital. McAllister has pleaded not guilty by reason of insanity.

When questioned later, the sobbing juror said: "I think he's guilty."

San Diego Superior Court Judge Bernard E. Revak excused the juror from the trial.

Then two more jurors said they did not think they could be fair to McAllister after seeing the photo. Revak also excused them.

Defense lawyer Ray Aragon argued that the rest of the jury panel could not be counted on to be fair because their emotional reactions to the photo were difficult to gauge.

The judge agreed and declared a mistrial.

Both lawyers in the case said they could not recall a mistrial ever being caused by an emotional reaction to evidence.

As the second jury selection began, defense attorneys sought to bar the prosecution from showing the photos, calling them "too much" for jurors to stomach.

"The reason we're here is because this lady got viciously beaten, and this picture shows that," objected the prosecutor.

Ultimately, the judge allowed one photo to be shown briefly to jurors, who will be warned that the case involves graphic images.

"They don't shock me," the judge said of the photos. "Maybe I've been in this business too long. I've seen a lot worse."

[let freedom sing]

Played it again, Sam.

[LibKill]

Photos are evidence, and pretty good evidence at that.

[Dr. Frank fan]

Yes, can't let a jury look at photos of the victim. It taints everything, you know. Next thing you know they'll be allowing the jury to hear evidence of the defendant's guilt.

[Dr. Frank fan]

Yes, can't let a jury look at photos of the victim. It taints everything, you know. Next thing you know they'll be allowing the jury to hear evidence of the defendant's guilt.

[let freedom sing]

Next thing you know they'll be allowing the jury to hear evidence of the defendant's guilt.

See no evil, hear no evil, no conviction.

[Britton J Wingfield]

Id say it is more appropriate to show during sentencing. That someone beat this old lady is not being debated, but whether or not this particular individual did, is.

[Illbay]

Defense attorneys ONLY want the jury to experience the emotions that are beneficial to the accused.

[let freedom sing]

That someone beat this old lady is not being debated

I think you've got something, there.

[supercat]

Id say it is more appropriate to show during sentencing. That someone beat this old lady is not being debated, but whether or not this particular individual did, is.

True in general, though if this person is trying to argue 'not guilty by reason of insanity' that would seem like an admission that he did do it. Still, the same principle applied when McVeigh was railroaded (probably needlessly) by the states' endless parade of "witnesses" who weren't present at the bombing but lost relatives there.

BTW, is there something flakey causing posts to not show up immediately?

[Freedom4US]

Perhaps those types of things should be required viewing during the trial.

[Teacher317]

The photo has nothing to do with the innocence/guilt of that particular defendant. All it can do is get the jury upset, filled with a desire to punish someone for the savage beating... and there's only one person they can possibly take it out on.

Imagine it were you in the defendant's chair, totally innocent of the crime, and you just watched the jury become turned against you without a shred of proof that it was you who committed that heinous act.

IF the defendant is the one who did it, I'm all for some very rough punishment... but he might be innocent, so let's make sure he has a fair chance to prove it, if he can. I think the judge probably acted properly (and the reporter is likely sensationalizing the story to get more papers sold).

[LoneRangerMassachusetts]

Bernard E. Revak

Something about the eyes and mustache trouble me. I don't trust this guy. See the following webpage for a public admonishment of this guy.

http://cjp.ca.gov/PubAdmRTF/Revak_PubAdm12-12-00.rtf

[LoneRangerMassachusetts]

Bernard E. Revak

Something about the eyes and mustache trouble me. I don't trust this guy. See the following webpage for a public admonishment of this guy.

http://cjp.ca.gov/PubAdmRTF/Revak_PubAdm12-12-00.rtf

[El Gato]

I'd say that unless the photograph bears on the guilt, or innocence of the defendent, it should be saved for the punishment phase of the trial. But if the wounds are germaine, say to tie it in with the weapon used, then by all means, show it to the jury. In those states, like Texas, where the jury is involved in punishment as well as guilt or innocense determination, it would seem to be very effective evidence to be used to "throw the book" at the convictee.

[Jonathon Spectre]

A photograph of a brutally beaten grandmother affected jurors in a murder trial enough for the judge to declare a mistrial.

I don't really know what to say about this. Throw people in jail for growing a plant, but declare a mistrial because evidence is presented in a murder trial.

I'm sorry we've failed you so badly, General Washington.

[Clinging Bitterly]

Like others upthread have said in other words, the photos don't seem to be evidence of the defendant's guilt. It's an interesting question - should evidence that does not establish an individual's guilt be considered irrelevant?

I thought about it for a minute and I think showing the nature of a crime is as important as proving who did it. It's plausible that in some cases photographs of the victim of an assault might establish doubt in the mind of a juror. Victim & crime scene photos will often make it undeniable that a crime has been committed, but one must think, could or would the person on trial here have done this? That, in my mind, is one of the things that a juror ought to be deciding.

So if the photos discussed in this article inflamed the jury against the defendant, their thought process was going the wrong way and a mistrial is probably in order. Certainly, where jurors have admitted prejudice before the trial is over, the judge wouldn't have much choice.

Some proper instruction before the trial commenced as to what this type of evidence means might have prevented this. Sounds like the judge wants to put this back on the right track.

Dave in Eugene

[dogbyte12]

This did have zip value in determining the guy's guilt. It is a weapon prosecutors use though. I have no problem with using this photo as evidence of his guilt though. If there is for example evidence of her face being clawed, and police found her skin under his nails, it is perfectly acceptable to show it that way.

I think it is cheating in a sense. Basically, it is a short cut by prosecutors in savage crimes. You pity the victim, so you want to punish somebody for it, and you have a person real handy to do it.

I think, if possible, verbal testimony from police officers on scene, and from the medical staff should be used instead during the guilt phase of a trial. Once the jury finds guilt, evidence such as this, of course is fair game in assauging the punishment to be incurred.

[Clinging Bitterly]

See my post #17, and I'll expand on it a bit:

Certainly, the D.A. would be thrilled knowing his evidence got the jury all het up, but the jurors have to go in knowing that he's gonna try to do that, and the defense attorney should take every opportunity to make sure they know it.

The reason most attorneys wear neckties is well known.

Dave in Eugene