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Some murders are solved because of dogged and thorough police work. Other murders are solved because somebody finally talks. This was a case of the latter.

It was a 9-year-old, true cold-case murder.

And I was juror No. 1.

It was a most interesting three weeks. It was quite dramatic and fascinating to be part of. I'm glad I was selected as a juror, and I hope never to do that again.

The Murder

On a Friday night in September 2004, a group of gang members from Mountain View, CA, decided to drive over to a rival gang's territory and stir up some trouble. There were five guys in the car, with Giovanni Duarte sitting in the rear passenger side.

When they got to a stoplight in the other neighborhood, one of the rivals came running up to the car, threw something at it, and got shot twice by a .25-caliber semiautomatic pistol. First shot hit his groin. As he grimaced and fell forward in pain, the second shot hit Alex Fernandez in the chest and went through his heart. If he had not fallen forward, that second shot might have hit in the stomach, or lungs, or somewhere not immediately fatal.

Instead, he bled to death in the middle of a city street.

Jury Selection

I got my initial juror notice last summer, and was supposed to report the week we had planned our trip to Olympic National Park.

The system here allows prospective jurors to be granted a one-time postponement of duty. When I returned the postponement request, due to our planned vacation, I gave the court the week that I'd be willing to serve: the week of Oct. 15-18. I selected that week because, with that week's Columbus Day holiday, it seemed like a four-day period would lessen my chances of being selected.

Wrong.

Now, let's be clear. While I was not thrilled to be in the jury pool, neither was I going to make up an excuse to get out of duty. If selected, I would do my best. My workplace is generous enough to cover salaries of those chosen for juries, so I would not face any financial hardship because of jury service. There was truly no reason that I could not serve.

And, while I was not jumping with joy with the prospect of being chosen, I admit that I was finding the process fascinating, and I figured this would be an experience I would never forget.

So, after preliminary instructions that first day, my jury pool was told to come back the next day for trial selection. When we got to the courtroom for selection, every seat was taken, and about 80 nervous people sat, waiting to see what would happen.

The judge informed us that this would be a trial of someone charged with first-degree murder. We would need to decide if there was gang involvement. And then it turned into "The Price is Right" as the clerk called names for the initial selection and told each person called to take a seat in the jury box to go through questioning.

I was stunned, and thought I mis-heard, when she said, "Juror No. 1, Senor Unoball," and I took my empty and lonely seat in the box.

Yes, I was the first one called. I ended up sitting in that same seat for 3 weeks.

The initial group of 12 answered a dozen questions: name, employment, family members, did we know any cops or lawyers, etc. I made it through the initial questioning, and of questions asked of me by the prosecutor and defense lawyer.

Through the lawyers' questions, I could read between the lines and see what might be coming up in trial. Both lawyers wanted to know our opinions on handguns, for example. Some of the prospective jurors indicated that they hated gun and felt that nobody other than police and army should be armed. Others said that they owned and used guns. Answers to the gun questions eliminated many potential jurors very quickly.

Another question, from the defense lawyer, asked us if we thought that even gang members had a right to self-defense. As it turned out, this was the ultimate defense argument, that the shooting was self-defense.

Dramatic Moments in Jury Selection

Part-way through, a woman in the audience became hysterical. In between her sobs, she apologized to the judge and said that one of her family members had been victim of a gang murder, so this situation was too hard for her. She was dismissed.

After lunch that first day of juror selection, the seat in front of me was vacant because the man who had been called had not returned. The court clerk had him paged on the intercom, and called down to the guards at the court entrance to be on the lookout. Finally the man, an elderly Japanese man, appeared and took his seat. He was in tears. His English skills were not very good, and I never truly understood what he was trying to say, but he was in hysterics and obviously could not handle being a juror. He was also dismissed.

One of the most heartbreaking things was asked of another prospective juror. She was asked if she had ever been the victim of a crime, or knew anybody who was. She took a while to gather her strength and replied that she knew someone who had been abducted and raped 30 years ago. And even a quiet courtroom can get very very quiet, and it certainly became that when the judge gently asked the woman who it was. She started sobbing uncontrollably and replied with a wail, "It was my daughter!" I was sitting right behind her, and I wished I could have given her a hug right then, but of course I could not. I looked around the room and most of us in the jury box also had tears in our eyes. This woman ended up on the jury, and she was wonderful, thoughtful and considerate; just what a juror should be.

When I got home on that first night after jury selection had started, I told Ms. Unoball it was not likely that I'd be kicked off the jury since I had not been kicked off yet. The next day, they finished jury selection and, of course, I made the cut.

The Trial

Gangs being gangs, nobody on either side talked to police after the shooting. Police had suspects, but not enough solid evidence to charge anybody.

Fast-forward to 2010, six years after the shooting. The "ringleader," a guy named George Oseida, was facing serious time on other charges.

While locked up in the Santa Clara County jail, Oseida had been diagnosed with leukemia and knew he had a short time to live unless he gets a bone-marrow transplant.

So George talked. Who knows why? Maybe his conscience was bothering him and he wanted to clear things up before he dies. Maybe he was hoping to get a lighter sentence for his other crimes. On the witness stand, he said the reason he decided to talk was that current gang members were still friends with his girlfriend and son, and he felt that if he spoke up the gang would leave his family alone. Oseida said he did not want his son to live the same life as he had.

No matter the reasoning, George sent a letter to Mountain View police telling what he knew about the shooting. He's been placed in protective custody because his life's not worth a plugged nickel now that other gang members know he's cooperating.

Based on Oseida's information, police eventually arrested Duarte, the shooter, and Anthony Figueroa, who was driving the car. Until a couple months ago, Anthony was a co-defendant and facing the same charges.

But, like Oseida, Anthony also agreed to cooperate and he, too, has been placed into protective custody. A few months ago he pleaded out to a charge of voluntary manslaughter with a gang enhancement and is facing 6-16 years.

One of the other guys who was in the car, Marlon Ruiz, also testified as to what happened.

With George, Anthony, and Marlon, their agreements to testify all stipulated that nothing they said in court could be held against them. However, if the prosecutors find other evidence that ties them to the crime they could still be charged based on that evidence.

George was longest on the witness stand, with about 3 days of testimony.

Before he appeared, however, we heard from various police and FBI investigators. They explained Latino street gangs to us, detailing gang signs and symbols, and the overall hierarchy of the two main Latino street gangs.

The shooting was done by a group called Varrio Mountain View, which is an offshoot of the Nortenos. These, in turn, are controlled from the Nuestra Familia from various state prisons.

The victim, on the other hand, was said to have been a member of the Surenos, which is run by the Mexican Mafia from various state prisons.

A short lesson in Nortenos:
  • They wear red.
  • They identify with the numbers 14, or 4, or the roman numerals iv (because N is the 14th letter of the alphabet).
  • Their families have often come to the U.S. from northern Mexico, and typically have lived longer in the U.S.; they generally speak English.
  • They typically are stronger in Northern California. Some have described the dividing line between Nortenos and Surenos as Fresno; others have said the town of Delano is the dividing line.
A short lesson in Surenos:
  • They wear blue.
  • They identify with the numbers 13, or 3, or the roman numerals iii (because M -- for Mexican Mafia -- is the 13th letter of the alphabet).
  • Their families are typically newer immigrants to the U.S. They often have come from southern Mexico and they might not speak much, if any, English.
The two gangs are deadly enemies. In county jail, members of each wear specific clothes to identify their affiliations, and are not allowed to mingle.

Following George's testimony, we heard from Anthony and Marlon, who each described the shooting in similar manner. Despite the memory lapses that happen over the space of 9 years, all three stories essentially matched.

We heard from a few other people as well -- friends who talked with Giovanni or saw him immediately after the shooting.

After about two weeks of prosecution evidence, the district attorney closed her case and it was the defendant's turn.

Duarte did not get on the witness stand which, of course, is his legal right. The main defense witness was a so-called "gang expert" from LA. The guy was a joke. He had a clear anti-prosecutor bias, and did not offer anything remotely objective to try to possibly explain what might have happened.

When the prosecutor asked his purpose for testifying as an "expert witness," he said it was to "show prosecutorial misconduct." He repeated that phrase numerous times, which showed to me that he had a clear anti-prosecution agenda.

When she asked how many trials he had been a defense witness for, he claimed it was in the hundreds. When she asked if he had ever appeared for the prosecution side, he said, "not once."

I was not surprised.

The prosecutor just launched into him on her cross-examination, and it was a thing of beauty to watch. This guy never answered a single question without going into long monologues about non-relevant stuff.

"I asked a 'yes' or 'no' question," she said. "Did such and such happen?"

And then the "expert" would go on for 5 minutes with nothing but bullshit. He did absolutely nothing to help the defense side, and there were times during his testimony that it was hard not to laugh out loud at what he was saying.

After a couple of days, the defense wrapped up its case. Defense claimed that the car of gang members had simply taken a wrong turn and went up a street they should not have been on. According to the defense, Fernandez rushed the car, threw something at it, and Giovanni was so scared he shot without thinking.

And that's when it really hit me hard. It was one thing to listen to testimony for about 3 weeks, but now were were being asked to do the most serious thing anybody can do: Pass judgement on another, knowing the decision will affect the rest of that person's life.

It was a sobering drive home that night.

Jury Deliberations

I'll give the jurors a lot of credit. We did not rush to any verdict, and we really talked about the issues involved in the jury room. The jury consisted of seven women and five men. Mostly white folks from their 40s to 60s. Several Asian women and one Asian man. One young man who appeared to have been Indian descent. One woman of Hispanic descent.

Giovanni Duarte was charged with 1st degree murder. If the jury could not agree on that, we were to look at 2nd-degree. If not that, the next charge was voluntary manslaughter. If we could not agree on any of those, he would be found not guilty or there would be a hung jury forcing a new trial. The verdict had to be unanimous.

First thing we did was to ask if anybody in the room believed the defense, and that the killing was done purely as self-defense. Nobody was willing to go that far, so that eliminated one choice immediately.

One person thought it could have been a case of manslaughter, and we all agreed that would be our fallback position if needed.

First we had to decide if it was, indeed, a murder. California requires that three things must be found valid for there to be a conviction of murder: A person was killed, the killer acted with "malice aforethought," and the killing was not self-defense.

The first and second items were easy to determine. Malice was a bit more problematic, and there are two types of malice: Express or implied.

Express malice is easy to determine: Did the killer go out with an intent to kill? That did not seem to be the case here.

Implied malice has to meet several requirements:

  • The killing resulted from an intentional act
  • The natural consequences of the act are dangerous to human life.
  • The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.
All of the points seemed obvious. Giovanni intentionally shot someone. The act of shooting was dangerous to human life. The act of shooting was in conscious disregard for life.

Yet one of the jurors was having a hard time agreeing with implied malice, primarily because she could not see that the shooting met all requirements of that. With her, the defense attorney got one juror he badly needed, as this woman was a gun owner who kept telling us that Giovanni might not have shot to kill, because she would not have shot to kill.

"But you're not on trial," we said. "He is."

She kept saying how the shooting could have been something other than conscious disregard for life.

That was when I all but yelled at her: "Firing a pistol out of a car window, blindly, is the very DEFINITION of disregard for life!"

With that argument, the juror finally came around and we all agreed that this was, indeed, a murder.

Now, to figure out if it was 1st- or 2nd-degree.

Essentially the only difference is that 1st-degree murder requires premeditation. Now, according to the law as it was explained, that premeditation does not have to be of any specific length. The killer may think about it for one month, or he may think about it for one second. The only requirement is that he think about it, not that he think about it for a specific length of time.

One of the other requirements is that the person has an "intent to kill." One of the jurors said that was her level of reasonable doubt, and that the defendant perhaps did not have that intent. She would not support 1st-degree because of that.

I, and most of the other jurors, were hung up on premeditation, and we discussed this for hours. We did not get any evidence that Duarte got in the car that night planning to kill someone. Yes, he got in the car with a gun. George and Anthony went to pick up Giovanni in Palo Alto because George knew he had a gun.

But that's not hard evidence of premeditation. However, most of us thought that his firing two bullets could have shown premeditation. It's one thing to reflexively fire a pistol, even twice in quick succession. But, if that second bullet was fired considerably after the first, it would be more clear evidence of premeditation, as he would have had time to think about firing that second fatal bullet.

So we requested trial transcripts from everybody at the scene who testified. One person said that the bullets were fired at 1 or 2 seconds apart. Nobody testified that they were fired any farther apart than that, like 10 seconds or something. There was no evidence that the second shot was fired when the victim was on the ground. I would have supported 1st-degree if there had been a sufficient length of time before the second shot to have shown that he had time to think about it.

This is where my reasonable doubt came in. I was not willing to convict on 1st-degree murder without showing a much stronger level of premeditation. Without a clear case, I was willing to give the defendant that small benefit of doubt, and that is what the law requires. Most of the other jurors were in agreement with that.

A couple of people did believe it was 1st-degree, but were willing to vote for 2nd. I could see the woman across the table from me in agony, almost, in trying to make this decision.

(And yes, my gut reaction always was that the killing fit the bill for 1st-degree murder. I'll bet that is what happened. But the prosecution simply did not provide that level of evidence we needed.)

Most of the jurors in the room had good things to say in deliberation. A few never spoke up unless asked something specific, but generally the debate was active.

As part of the murder charge, we also had to find that the killing was gang-related. There are several things that must be shown for that, but there was really no question about this part.

How does California define a criminal street gang?
It is any organization or group of 3 or more people that:
  • Has a common name or identifying sign or symbol
  • Has, as one of its primary activities, the commission of one of a long list of California criminal offenses
  • Whose members have engaged in a "pattern of criminal gang activity"...either alone or together
Once we established that Giovanni was a member of a criminal street gang, as shown by his actions as well as testimony of others in the gang, we still had to find some other things to give a "yes" answer to the gang-enhancement charge. The prosecutor had to show that the killing was:
   
  • For the benefit of
  • At the direction of
  • or in association with

any criminal street gang, and with the specific intent to:
  • promote
  • further
  • or assist in

any criminal conduct by gang members.
It was obviously gang-related. We also had to find that the defendant used a handgun from a car.

Those two findings each add some specific sentencing to the verdict. Second-degree murder is 15-to-life in California, but these two enhancements brought the sentence to be 40-to-life. Giovanni is scheduled for sentencing next month.

I was surprised that there was no news coverage of this trial. Do we have such a society that a 3-week trial of a cold-case gang murder merits no reportage? Or is it the sorry state of daily journalism, even in a large city, that they simply don't have resources to cover such a story? In any case, there were a couple after-the-fact pieces in local papers. A story in the Mountain View Patch gives a good summation of the case.

Other Thoughts

When I think about criminal gangs, I've always pictured men in their early 20s up to the mid-20s, I guess. Wrong. All of the people involved in this incident, both sides, were in high school. All were between 15 and 18.

This fact ended up bothering me as much as anything.

For some general information on Latino street gangs, while researching this I found a series of very well-written stories in El Andar magazine. See Part 1, Part 2, and Part 3.

Following reading of the verdict we were heading down the elevator to go back to our lives, and a man with us spoke up. Said he was Anthony's attorney and wished to speak to anybody who would care to do so. I said I'd talk, so several of us gathered in front of the courthouse.

This lawyer wanted to know if we found Anthony's testimony to be believable and trustworthy. We all agreed that he was a very credible witness and we believed his version of what happened. The lawyer seemed pleased to hear this, and I'm sure that Anthony will get a lower sentence when he is eventually sentenced for his actions that night.

Then the prosecutor came down with others of  her team. I talked to her for quite a while.

As it turns out, she is a member of the gang crime unit and this was her first murder trial. She said she was a bit disappointed not to get a 1st-degree conviction. I told her my thoughts about reasonable doubt regarding premeditation, and I'm sure she'll use that in future cases.

While she could not talk about Duarte's actions in other situations during the trial, because that was not relevant, afterward she told me that after this shooting he was eventually arrested in another case on an attempted murder charge. Also, while in the county jail he also assaulted and severely beat a jailer and will soon face charges on that.

In other words, he's a bad, bad guy.

And even if he did not get the maximum penalty from us, he's still going to be in prison for the rest of his life.

Though it took more than 9 years from the date of the murder, eventually the justice system worked out in this case.

Originally posted to Senor Unoball on Wed Dec 11, 2013 at 10:00 AM PST.

Also republished by Silicon Valley Kos and Community Spotlight.

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