Judge makes a crack about plumbers being liars, and a murder conviction is thrown out
Some trial judges like to speak casually to their juries, to relax them in a courtroom setting which may be new or intimidating. But after a Los Angeles County judge told a pool of potential jurors that she would think a plumber is “not going to be telling the truth,” and a plumber was the key witness in the trial, a California appeals court last week threw out the jury’s murder conviction and the judge’s 114-year sentence.
The case was not a complicated mystery: Two men were shot repeatedly while sitting in a car, in broad daylight, in the Willowbrook section of Los Angeles in October 2013. One man died and one survived. The survivor identified his childhood friend, Vincent A. Tatum, as the shooter, according to court records. A trial jury in July 2014 convicted Tatum of first-degree murder and first-degree attempted murder. In light of Tatum’s seven prior convictions, Superior Court Judge Eleanor J. Hunter sentenced Tatum to 114 years in prison.
But before the verdicts came jury selection. And during that process, according to court documents, Judge Hunter spoke to potential jurors about how to analyze witness testimony. “The law says that you can’t prejudge anybody,” Hunter told the jury panel. “You can’t automatically give somebody more credibility or automatically give them less credibility before they even take the stand. And I always use this example — and I’m sorry if somebody here is a plumber, but I’ve had horrible experiences with plumbers. I’ve just had horrible – during remodels or whatever, just horrible experiences. So if I hear somebody is coming in, and I hear he’s a plumber, I’m thinking, ‘God, he’s not going to be telling the truth.’ So obviously I have already prejudged that person, and I wouldn’t be able to be fair.” The judge clarified that once a witness begins testifying, “you can start to evaluate. But you can’t do it beforehand.”
This was a stunning development for Tatum’s defense attorneys, because their defense hinged on the alibi testimony of Tatum’s boss: a plumber. The defense asked for a mistrial. Hunter said no, suggesting to the defense that she could “certainly tell the jury that was by way of example, and that’s a personal thing,” or give some other admonition. The defense didn’t want the judge to bring up plumbers again, in any way, and declined the judge’s offer. A second panel of potential jurors did not hear Hunter’s opinion of plumbers. Six jurors from the first panel were selected for the trial jury.
At trial, plumbing contractor Major Lee Goulsby testified that his friend Tatum worked for him on a demolition job on the day of the shootings and couldn’t have been in Willowbrook to kill Victor Valentine Sr. and wound former friend Devin Lowe, according to the appeals court ruling. Goulsby acknowledged that when police called him because Tatum was wanted for murder, he hung up without offering an alibi for Tatum. Prosecutors argued that Goulsby was the only co-worker called to testify for Tatum because “in this case there’s only one person willing to lie, and that was . . . Goulsby.”
The defense argued that Lowe was the only witness to identify Tatum and no physical evidence tied him to the slaying, his appeals lawyer said. But the jury convicted Tatum, now 50, and the judge sent him to prison for effectively the rest of his life.
Los Angeles appeals lawyer Danalynn Fritz argued that the judge’s comments about plumbers were too prejudicial, and the state appeals court agreed, in a ruling first reported by the Los Angeles Times. “If the jury believed Goulsby, Tatum was not guilty,” the 2-1 decision written by Justice Jeffrey W. Johnson noted. “But six members of the jury heard the trial court advise them (begin italics) that the court herself would not believe a plumber who testified (end italics).” Johnson added, “The court’s statement that plumbers who came into court were liars validated the prosecutor’s argument, irreparably damaging Tatum’s chance of receiving a fair trial.”
Johnson wrote that Hunter should have granted the mistrial motion before the trial ever started, not merely offered another instruction to the jury. “Under these circumstances,” Johnson ruled, “an instruction would have been as ineffectual as the famous words spoken by the Wizard of Oz, ‘Pay no attention to that man behind the curtain!’ (The Wizard of Oz, Metro-Goldwyn-Mayer, Aug. 25, 1939)” (Footnote NOT added.)(Hey, it’s L.A.)
Fritz said the appeals court was advising judges “to keep the personal anecdotes to yourself and don’t deviate from the standard instructions. I think judges run into trouble when they do that.” While Hunter said she had used the plumber analogy previously, “what are the odds of my client’s alibi witness being a plumber? That was ironic. And unfortunate for her. It’s a horrible example of how not to be biased. It’s a simple concept: don’t prejudge.”
A dissenting opinion in the case argued that Hunter was merely telling the jurors they had to put away such preconceived biases. But Fritz looked at the transcript and the judge “did not ever say ‘I would be able to put that aside.’ ”
Fritz added, “My thinking is she used the plumber on purpose. The odds that it would be the profession of my client’s alibi defense? She might have known he was a plumber. And then the jurors say, ‘Oh my God, she warned us about plumbers, about this very man.’ I don’t think jurors are that forgetful,” particularly in a two-day trial such as Tatum’s.
A spokeswoman for the California attorney general said Tuesday that lawyers were reviewing the opinion and she could not comment on whether they would appeal the ruling. If they do not, Tatum would likely face a retrial in Los Angeles.
Featured Image: California Department of Corrections.
(c) 2016, The Washington Post · Tom Jackman
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