By Maria Telesco
Frantically fishing for flaws in our [in]justice system: Eureka! I found one! OPPLIGER-GATE! Astounded, I hastened to exhume evidence of malfeasance, blogs being my main sources.
James Oppliger, former homicide division assistant district attorney, now Fresno judge, recently served as a juror in a homicide case. What? And he was “guilty” of sending four e-mails to 22 fellow judges while serving as foreperson of the jury.
Defendant Ruben Ortiz’s crime? Second degree murder: Guilty. Oppliger’s “crime”? Something. But what? While serving on jury duty, he stirred up a dust storm that hit the fan like a load of bricks. Was it juror misconduct, improper behavior or a stupid joke? Differing opinions were buzzing around the courthouse like mosquitoes on a balmy Fresno evening.
Fresno Bee reporter Pablo Lopez broke the story on April 16, quoting Oppliger’s e-mail to the judges, including Arlan Harrell, then presiding over Ortiz’s trial: “Here I am, livin’ the dream, jury duty with [David] Mugridge [defense] and Jenkins [prosecution].”
Subsequently, Mugridge told Harrell that Oppliger’s comments seemed negative, mocking himself and Jenkins. Harrell didn’t perceive prejudice in the remarks because both lawyers were named.
Lawyer Michael Idiart, who is not involved in the case, opined that Oppliger’s remarks didn’t constitute juror misconduct because he didn’t discuss the evidence but that a judge should have known better.
Bee columnist Bill McEwen was troubled that Harrell “did not bring Oppliger’s dispatches to light” until after Ortiz was convicted. McEwen thought Harrell should have admonished Oppliger after the first e-mail, or even dismissed him, but “maybe Harrell doesn’t read his email.”
Attorney Marc Kapetan, who is not involved in the case, thought that “it undermines the public’s confidence in the court system” when such behaviors are disclosed.
Fresno resident Donna Larsen wrote to the Bee that Oppliger’s behavior was “egotistical,” a juror would be “run out of town” for doing that and “a mistrial would be called.”
Attorney-bloggista Rick Horowitz takes Lopez to task for calling Oppliger’s actions “misconduct” but concedes there was “the
appearance of impropriety” that “does not rise to the level of a violation of the rules.”
Blog reader “John Pederson” thought it improper for any juror to contact the trial judge during a jury trial, regardless of the contents of the communication and that Oppliger’s behavior was “unbecoming of a judge.”
Horowitz’s partial response to Pederson, “the real mistake was leaving [Oppliger] on the panel in the first place…What in G-d’s [sic] name was the defense attorney thinking?”
In a blogged response to a KCBS Channel 47 story, “Jerry Dyer” (unknown to this writer if this is the police chief or another person using that name) commented that “Judge Oppliger deserves to be removed for violating basic standards promulgated by the California Judicial Cannon [sic]. He has brought disrepute to his office and should resign immediately. Judge Harrell, the trial judge in this case, should be publicly reproved for failing to timely disclose his ex parte communication with a sitting juror member during the course of the trial. Finally, the judges who received the improper email correspondence but failed to act should be privately reproved for their unethical failure [to do so.]”
Attorney-bloggista Terry Wapner says that “although the judge/juror in the Fresno case may not have committed actual misconduct, he should have not given the appearance of impropriety. Most judges bend over backwards to act this way [sic], erring on the side of caution. It’s bad enough that the public perception of the justice system is poor. This particular judge has made it worse today.”
My personal, non-lawyer, opinion is that if a judge were to serve on a jury, it would be a conflict of interest to serve in the same courthouse where he works and the other judges are his buddies and pals. I would think it is OK for him to serve as a juror in a different court or jurisdiction.
Mugridge has filed documents in Fresno County Superior Court contending that Oppliger engaged in “improper communication” and may have committed juror misconduct. Mugridge told the Bee that he plans “to seek a new trial for a client.”
I rest my case. You figure it out.
Maria Telesco is a retired registered nurse who has volunteered in various aspects of prison ministry for more than 25 years. Contact her at firstname.lastname@example.org.