Sacramento Superior Court Judge Michael Virga improperly influenced a jury to find a defendant guilty in a sexual assault case. The actions of the former prosecutor have resulted in a new trial being ordered by the United States Court of Appeals for the Ninth Circuit.

Virga presided over the trial of Anthony Bernard Smith Jr. who was accused with co-defendant James Hinex of breaking into a home in September 1997. Smith was also accused of sexually assaulting the woman in the house.

Jurors said after three days of deliberations on one of the assault charges and one juror sent a note to Virga questioning the woman’s identification of Smith and the DNA tests. Her note read:

I am unable to vote for a guilty verdict on charge No. 4. My reasons are as follows: I am of the opinion that the methods used in collecting the evidence from which the sole sperm sample (purple shirt) was lifted may have contaminated the evidence because of time lapse and handling procedure. Further, I can not come to the absolute conclusion that the processes and procedures utilized at arriving at the DNA match have proven to be infallible as the only indication [*10] of Mr. Smith[‘s] guilt on this charge.

For me the choices are:

1. Was Mrs. S[]’s unreliable identification of her attacker credible?

2. Did Mr. Smith, according to his statement, admit to the other three charges and only deny the fourth?

3. Are the Sacramento County Crime Lab’s findings based on the DNA match the only credible evidence on this charge?

Unfortunately, for me, that is not one absolute conclusion on this charge. Therefore, I have a reasonable doubt and in good conscience cannot vote for conviction.

Virgas indicated that he was going to invoke his right to comment on the evidence. The defense correctly pointed out that Virgas had seen excluded evidence and should not be influenced the jury:

I’d like to say that I make these comments with great discomfort because of my tremendous respect for this Court. I’ve had numerous dealings with this Court as my home court judge for a couple of years and . . . I have been impressed with the Court’s competence, intellectual honesty and careful, cautious consideration of legal issues.

. . . . I want to point out that the Court, I believe, has a sincerely held belief in the defendant’s guilt. It is very clear that that’s true. And I submit that the Court is letting that affect its discretion in this matter, and I need to point out that the Court has heard a tremendous amount of evidence with respect to the serology and DNA, specifically, that the jury has not heard.

. . . . So I would request the Court to consider whether its belief in the defendant’s guilt is based in part on evidence that is not — that has not been presented by the prosecutor in this case.

. . . . [T]he reason it is so obviously so devastating is because the jury considers the judge the most intelligent lawyer in the courtroom, certainly it is clear in this case they do.

Over the strong objections of the defense, Virga sent back the following answer (taken from the Ninth Circuit opinion:

Ladies and gentlemen, in reviewing the ten communications you have sent to the Court since you began your deliberations on September 18th, 1998, it appears to the Court that the question as to who actually perpetrated forcible oral copulation upon [Mrs. S] is a matter of controversy among you.

You are, of course, the exclusive judges of the facts, and it is your duty, if you can, to arrive at a verdict one way or another. To that end, I am going to exercise the priviledge [sic] that I have under the laws of the state to comment on the evidence, not to impose my will on you in any way, but simply to have you review certain evidence you may not have considered or discussed during your deliberations.

In my view, it is important that you consider the statements defendant Anthony Smith and James Hinex made to law enforcement following their arrests.

Accordingly, after I have completed my comments, I am going to have those statements played in open court. As you listen to their statements, you should read the transcript which you have been provided with that corresponds to the statement you’re listening to. When listening to their statements, you should compare their statements against each other. You should listen for consistencies in there [sic] statements as well as inconsistencies. Consistencies in statements and inconsistencies in statements are proper areas to consider in evaluating evidence.

Among the consistencies and inconsistencies you will hear in James Hinex’ statements to Detective Willover, Hinex tells Willover that he and Smith went up to the front door of the S [] home. Hinex said Smith pretended to sell the newspaper. Hinex said Smith went inside the house. Hinex denied going inside the house.

In Hinex’ statements to Detective Willover and Detective Ware, Hinex said that Smith was the guy who went into the house. Hinex said Christopher [McCurin] was not at the house when the incident occurred. Hinex denied going into the house.

Hinex said Smith went to the back of the house with a gun and closed the door. Hinex said Smith was the only one who ran out of the house. In Smith’s statement to Detective Willover, he told Willover he and Hinex went in the front door with a gun. Smith told Willover he and Hinex went to the house and Chris stayed in Rob [McKinsey]’s house. Smith told Willover Chris did not go in the house.

Smith said he and Hinex went inside the house. Smith said that he found Ms. S [] in one of the back bedrooms. Smith said he had the gun when he was back there with Mrs. S []. Smith said that Mrs. S [] gave him a $ 100 bill.

There are other consistencies and inconsistencies you will hear in their statements, but these are the most significant in my view.

The court then played the tapes of Hinex’s and Smith’s statements [*16] to detectives. After the tapes were played, the court further instructed:

After making a comparison of the statement of Anthony Smith and James Hinex to law enforcement, consider and discuss how this comparison affects your finding as to who perpetrated the act of forcible oral copulation upon [Mrs. S].

My comments are advisory only and are not binding on you as you are the exclusive judges of the questions of fact submitted to you and of the credibility of the witnesses.

I also remind you again that both the People and the defendant are entitled to the individual opinion of each juror. It is the duty of each of you to consider the evidence for the purpose of arriving at a verdict if you can do so. Each of you must decide the case for yourself but should do so only after a discussion of the evidence and instructions with the other jurors.

You should not hesitate to change an opinion if you are convinced it is erroneous; however, you should not be influenced to decide any question in a particular way because the majority of the jurors or any of them favor such a decision.

And when you are discussing and deliberating, remember, too, you are not partisans or advocates in this matter, but you are judges.

Within one hour, Smith was convicted. Smith was given 45 years to life in state prison.

Virga’s statement reads like he was doing a closing in his former role as a prosecutor. The panel (in an opinion written by Judge Mary M. Schroeder) appears to struggle to restrain its expressions of disbelief that the California Court of Appeals could uphold such a conviction — and the California Supreme Court did nothing about the violation. The panel concludes “In sum, the California Court of Appeal’s conclusion that the trial court’s comments on the evidence were ‘scrupulously fair’ was objectively unreasonable, and its legal conclusion regarding jury coercion, based on that assessment, was consequently objectively unreasonable as well. In fact, the comments substituted the judge for the jury as to the manner and substance of deliberations and thereby denied Smith his constitutional right to the uncoerced verdict of the jury.”

It was a pretty gross abuse of judicial power in my view. Yet, Judge N. Randy Smith dissented and, while expressing concerns over Virga’s actions, wanted the sentence to stand unchanged.

For the full story, click here.