Ruling on Possible Jury Misconduct in David Del Toro Trial Rescheduled for June 28

The veteran firefighter's defense attorney fails to appear in court Wednesday.

A defense request on behalf of veteran LAFD Capt. David Del Toro to interview jurors who convicted him of second-degree murder will have to wait until June 28 for a ruling by Los Angeles Superior Court Judge Lance Ito.

Judge Ito rescheduled his hearing for June 28 after Del Toro’s defense attorney, Joseph Gutierrez, was unable to appear in court Wednesday. The attorney was engaged in a trial elsewhere, Ito said, and couldn’t make it for the hearing initially scheduled for June 8.

Another attorney who stood in for Gutierrez represented Del Toro, who appeared handcuffed in court, wearing an orange-colored L.A. County Jail uniform. He looked healthy and in surprisingly good spirits.

Judge Ito informed the attorney as well as Deputy District Attorney Bobby Grace, the prosecutor in the case, that he would like to hear about any concerns they might have following their review of a court transcript of the judge’s questioning of the jurors.

That investigation is linked to a previous occurrence of juror misconduct shortly before Del Toro’s murder conviction in which a juror was dismissed because she violated Judge Ito's orders not to discuss issues of punishment or prison sentences during jury deliberations. A second juror excused herself from the case on the grounds that the discussions had left her unable to reach a fair verdict. Both jurors were instantly replaced with alternate jurors.

Del Toro’s defense hopes to use the investigation to bolster its argument about jury misconduct and push for a subsequent mistrial. A previous attempt by Gutierrez to suggest that jurors had been influenced by the media’s coverage of the high-profile Del Toro trial has been more or less resolved: In a hearing last month, Judge Ito observed that media coverage of the case has been nowhere near as intense as the defense has alleged. Gutierrez had submitted news clippings to the court prior to the hearing and Judge Ito had conducted his own review of news materials pertaining to the case.

“Whether there were or weren’t a lot of media articles, the jurors never said that they looked at any of them,” Grace told Eagle Rock Patch.

From the start, Grace had dubbed the defense’s efforts to interview jurors as a “fishing expedition”—and that was the term he used again today while contending that “the appropriate time to engage in an inquiry” of possible juror misconduct was “at the time the jurors were initially questioned.”

Further, said Grace, his reading of the 87-page court transcript about Ito’s investigation of jurors confirms that the juror who was dismissed for misconduct “did not take any steps to go on the internet and do research outside of the jury deliberations,” as the defense had suggested to Judge Ito during last month’s hearing.

Del Toro, a former Los Angeles Fire Department captain who resided in Eagle Rock, was March 17 in the death of Jennifer Flores, a 42-year-old San Gabriel woman. Flores' body was found two blocks from Del Toro's Eagle Rock home on Aug. 16, 2006, and a trail of Flores’ blood and DNA led detectives to the fireman’s residence.

The jury chose to convict Del Toro of manslaughter, a lesser charge, or first-degree murder, a more serious charge, in its verdict. Del Toro faces 15 years to life.

Philipp Sander June 08, 2011 at 11:45 PM
I disagree, I think its legitimate for a man who has been convicted of second-degree murder to grasp any straw when trying to defend himself. Also, sending a partner in Gutierrez' stead in acceptable, especially if Gutierrez is in a trial somewhere else, which takes precedence over a hearing - of course only if Del Toro is OK with it.
Ajay Singh June 09, 2011 at 01:12 AM
I am told that Gutierrez is the kind of attorney who takes a shot at every possible opportunity to litigate further, regardless of his chances of success. Not sure if it's a question of strategy or personality, but that's him. And, I'm told further, he's lucky to have a judge such as Ito, who gives a hearing to all sides and is intellectually curious but who also has a (razor-sharp) mind of his own.
Valley Resident June 09, 2011 at 07:31 PM
A drowning man will grab at anything
Moonstarr June 28, 2011 at 09:50 PM
June 28th, no news yet?
Ajay Singh June 29, 2011 at 12:17 AM
Here you go, Moonstarr: http://patch.com/A-jJV1


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