Lawyers attacked for jury tactics

Bill Gang

Thursday, June 20, 1996 | 11:59 a.m.

Although District Judge Lee Gates has granted a new trial for three former Metro Police officers, a lawyer for one of them said prosecutors may be prohibited from ever taking the case back to a jury.

The trio had been convicted by a jury of oppression under the color of office, but that verdict was tossed out Wednesday because a juror purposely withheld his criminal past from defense attorneys.

Now similar allegations are being leveled at prosecutors.

Information uncovered after the trial ended showed that prosecutors had run computer background checks on all jurors and had documents showing the unrevealed criminal past of one juror.

But when the juror was questioned, Deputy District Attorney David Schwartz never asked him about the citation he received a year ago for lewdness in a car on a downtown street.

Schwartz explained that while his office may have obtained the information, he had not seen it at the time he questioned the juror. He added that since it was only a citation, not an arrest, he likely would not have dwelled on it even if he had been aware of it.

But attorney Bill Terry, who represents former Sgt. James Campbell, has suggested that because prosecutors had the information and didn't share it, they equally were responsible for Wednesday's turn of events.

He said he plans to file a court motion seeking to have the district attorney's office barred from again taking the officers to trial.

Defense attorneys have claimed that prosecutors could have used the computer background information to correct the denial by juror Eric Jon Schmidt that he had faced any recent criminal charges.

Gates, in his decision, noted that Schmidt had been asked several different ways about his criminal past and only told of a DUI case from several years ago.

It was Gates' conclusion that the juror had intentionally hidden a lewdness charge from attorneys that led to the granting of a new trial for Campbell and the other fired Metro bicycle patrol officers, Brian Nicholson and Robert Phelan.

The defense team had charged that Schmidt was biased toward police officers because of the lewdness citation, which eventually was dismissed after he attended counseling sessions.

Gates seemed to agree in his 10-page decision.

"Schmidt was not only a strong and vocal juror for conviction of the defendants, he is alleged to have made prejudicial statements before, during and after the case," Gates stated. "It is possible his attitude could have been influenced by his prior contact with Metro officers."

The lawyers have said they never would have kept Schmidt on the jury had they known of his criminal past.

"A defendant is entitled to a jury composed of 12 unbiased, impartial jurors," Gates wrote in his decision. "This is true even if the evidence against a defendant is overwhelming."

In the case against the three officers, their treatment of coin theft suspect Andrew Dersch in a security room at the Fremont hotel-casino was videotaped.

On the tape, Phelan is shown punching Dersch in the chest and then throwing him into an adjoining room where his head is cut open on a desk.

A microphone picks up cries of pain from Dersch and threats from Nicholson to sodomize him with a police baton.

Testimony at the month-long trial showed that Campbell joked about the other officers' actions and then made attempts to have the security video destroyed.