A mistrial was denied Wednesday in the case of an inmate convicted of stomping his cellmate to death after the court addressed allegations of both officer and juror misconduct.
Earlier this week, a juror told the court she overheard a comment made by one of the California Department of Corrections and Rehabilitation officers guarding Dennis Bratton.
She said she heard it as the jury went to lunch during its first day of deliberating whether Bratton, 47, will be sentenced to death or life in prison without the possibility of parole for killing his cellmate.
The juror said she believed the officer asked the bailiff, "Have they returned a death verdict yet?"
The juror, who became emotional as she was questioned by Judge Michael E. Dellostritto, said the comment upset her, and she later asked the other jurors if they heard it. She said she thought the remark was unprofessional and made light of the decision before the jury.
Called in individually for questioning, most jurors said they only heard about the comment from the juror who first reported it. Others who thought they heard an officer say something said they couldn't make out exactly what was said.
All jurors told the court they could disregard the comment and it would not impact their deliberations.
The officer told Dellostritto he didn't see the jurors in the hallway when he asked, "Do they have a verdict yet?" He said he never used the word "death."
The bailiff and a courtroom assistant both said they heard the officer's question and did not hear him say "death."
Deputy Public Defender Paul Cadman, representing Bratton along with newly appointed Public Defender Pam Singh, moved for a mistrial, arguing the jury was "infected" by the alleged comment.
"It became, as many stories do, regarding fishing and other things, bigger and bigger, etc.," Cadman said.
Dellostritto denied the motion. He found the evidence presented in court did not rise to that level, noting that even the juror who he believes misheard the comment said she was capable of disregarding it.
The judge did, however, asked that the officer no longer be present before the jury because some jurors may have seem him when the remark was made and associate him with it. The officer and another correctional officer guarding Bratton were replaced by two other correctional officers.
Earlier, while Dellostritto was individually questioning jurors regarding the officer's comment, one juror volunteered that not everyone has been participating in deliberations.
The juror making the accusation told the court she said something to a juror who wasn't engaged in the conversation, and the accused juror responded, "I don't need to talk to you guys. I'm not going to talk to you guys about this."
Dellostritto questioned another jury member who told the court there were two or three jurors who were not deliberating. He later elaborated some were more involved than others, and no juror specifically refused to deliberate.
Once that juror left, Dellostritto said he planned to call the entire jury in and admonish it to deliberate before sending it back to the jury room.
Singh disagreed and vigorously argued that any admonishment by the court to keep deliberating would make it clear to the jury that discussions have been held regarding an alleged failure to deliberate.
She said the woman accused of not deliberating may have taken part in earlier discussions and already made up her mind. If that's the case, she said, the juror is not compelled to further deliberate.
"If she's made her decision, she can do cartwheels in there," Singh said.
The judge then called in the jurors and reminded them to keep an open mind and engage in an exchange of opinions. He asked if anyone was unable to deliberate. No one said they were.
Defense counsel asked Dellostritto to order The Californian not to publish a story regarding the alleged misconduct over concerns a juror may read and be affected by the coverage.
Following further discussion, Dellostritto said he did not believe he had the authority to stop The Californian from publishing an article regarding the issues, which were discussed in open court, although not in front of the jury. He said he's not sure he would exercise that authority even if he did have it as it involved a "very important First Amendment issue."
Last month, the jury convicted Bratton of assault by a life prisoner with force likely to produce great bodily injury. He stomped and strangled his 27-year-old cellmate, Andrew Keel, four years ago in the cell they shared at Kern Valley State Prison.
The defense argued Bratton killed Keel in self-defense. Prosecutor Andi Bridges said the killing was planned and Bratton continued to stomp on Keel's head even as he begged him to stop.
Jury deliberations resume at 9:30 a.m. Thursday.