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Black juror dismissed for inappropriate comments

By STEVE E. SWENSON, Californian staff writer,
e-mail: sswenson@bakersfield.com | Tuesday, May 29 2007 11:26 AM

Last Updated: Tuesday, May 29 2007 2:37 PM

The decision to dismiss the only black juror, No. 309, on the Vincent Brothers case was not easy for anyone — the judge, the juror himself and another juror who came forward with critical information, according to transcripts released Tuesday.

But in the end, Kern County Superior Court Judge Michael Bush made a finding that juror No. 309 said he was going to “vote not guilty in this case based on past social injustices.”

In addition, Bush said it was “inappropriate” for the juror to make comments about how the juror was in a “lose-lose” situation as described by another juror who said juror No. 309 commented he was in the position of “either selling a brother down the river or letting a murderer get away.”

Ironically, that information came from juror No. 255 — the person juror No. 309 made those comments to on May 7 — who juror No. 309 said he regarded as “level-headed” and would be a good person to be the foreman of the jury.

Even after the judge excused juror No. 309, the dismissed juror said the fact juror No. 255 came forward shows how level headed he was.

Bush said there were also other reasons to dismiss the black juror, namely that he talked to a witness in the case, described as a Marine sergeant, as well as the husband of Michelle Baptiste, a close friend of Brothers’ wife, Joanie Harper, one of the slaying victims. Baptiste testified at the trial.

Talking to those people “puts it over the top,” Bush said May 9, the day he dismissed the juror.

As Bush promised, on Tuesday he released the transcripts of the dismissal after the jury found Brothers should be sentenced to death for killing five family members, his wife, Joanie Harper; their three children, Marques, Lyndsey and Marshall; and Joanie Harper’s mother, Earnestine in 2003.

Juror No. 255 was clearly conflicted about bringing the information to the judge. “I like the juror,” No. 255 said of the black juror. “I don’t want to get anyone thrown off. This has posed for me a moral dilemma.”

Juror No. 255 made that comment on May 8, the day after he said that juror No. 309 told him he would not find Brothers guilty, no matter what the evidence showed.

While saying he couldn’t remember the exact words juror No. 309 used, Juror No. 255 told Bush it was “something to do with righting previous injustices.”

Another juror, No. 407, also told Bush on May 8 that Juror No. 309 “made up his mind on how he was going to vote and we’re not there yet.” Juror No. 407 added that the black juror told him, “If you don’t like it, go tell the judge.”

But when Bush brought Juror No. 309 into the courtroom to talk to him out of the presence of the other jurors, he said, “I will swear on my children’s life that I’ve not formed — I have not made an opinion to this point, nor will I make an opinion until I get the case.”

He said it was an insult to him to suggest he would say he would vote not guilty regardless of the evidence.

The black juror did say he talked to Juror No. 255 about the lose-lose situation — “I’m the only black juror and no matter which way we go, guilty or innocent, you know they’re going — I lose, cause they’re going to say, oh, you prosecuted or convicted a black guy, or the other side saying that I didn’t because he was (black).”

On May 8, the black juror denied saying he talked about previous injustices as a reason for voting not guilty.

The next day, when Bush told the black juror he would be dismissed, the juror asked which statement was inappropriate. Bush replied, “The statement to the other juror about voting not guilty.”

The judge added, “Even though I know you told me you had a reason for that.”

Bush also told juror No. 309 the lose-lose comment was inappropriate.

The judge said, “It is the fundamental duty of jurors, each and every one, to follow the court’s admonition not to form or express an opinion” before deliberations.