Why the Post Trial Macinations

In the previous article we looked at how double jeopardy attaches to this case in various ways.  In this article we look at what was behind the post trial machination by the prosecutor and judge—and it wasn’t because they wanted to retry Cameron Brown on the higher charge.  The post trial machinations were necessary to retry him on any charge. 

MOTIVATION BEHIND POST TRIAL MACHINATIONS

When you break it down to the core of the matter, the controversy over the outcome of the second trial comes from the fact that there was no explicit verdict to acquit.  This is what prompted Judge Pastor to declare he was confused. (Trial Transcript, Page 13541, Line 8) Despite the judge’s confusion, it is a fundamental tenet that should a jury unanimously decline to convict—even when the jury fails to formally return a verdict of acquittal—the defendant is nevertheless acquitted because the standard of “guilt beyond a reasonable doubt” has not been met.  This is recognized under case law in California as an “implied acquittal.”

In spite of that, Judge Pastor and Prosecutor Hum insist that there was no verdict.  However, if there truly was no verdict, what motivated the post trial machinations of jury declarations and the judge’s “King’s X” rationale?  The act of collecting declarations attests to the fact that there must have been a verdict—one the prosecutor wished to foreclose against.  And the judge’s King’s X rationale, his omission of some of the facts before him, attests to the fact that the omitted facts reveal that there must have been a verdict.

Even though the jury did not formally return a “not guilty” verdict, they unanimously declined to vote “guilty” after voting on the charge of first degree murder.  There is no functional difference between unanimously voting “not guilty” and unanimously not voting “guilty.”  Therefore, the jury implicitly acquitted Cameron Brown of the charged crime of First Degree Murder.  Retrying him on that charge is a violation of the double jeopardy clause against his rights. 

The prosecutor and judge did not go through those post trial machinations simply because they wanted to retry Cameron Brown for a higher charge.  The indictment of Cameron Brown is very specific.  It does not permit an acquittal of the charged crime of first degree murder, and allow prosecution on the lower included offenses.  Therefore the post trial machinations were necessary for the prosecutor to get another opportunity to try to convict Cameron Brown on any charge. 

This issue is a question of law—and this case reveals a contradiction between the way the law is written and how it’s practiced in California. 

A QUESTION OF LAW

In his opening statements prosecutor Craig Hum declared, “This case is about the murder of a little four-year-old girl, who was killed by her father…The defendant murdered Lauren by taking her on a hike to Inspiration Point in Rancho Palos Verdes and throwing her from a 120-foot cliff into the Pacific Ocean below.” (Trial Transcript, Page 2450, Lines 24-26; Page 2451, Lines 1-4) Yet, when you break it down to the very essence of the evidence, the prosecution presented only two or three witnesses that dealt with actual evidence of whether or not Cameron Brown picked up his daughter and threw her off a cliff.

About fifty witnesses testified for the prosecution, (Trial Transcript, Page 7329, Line 14) yet very little was presented as to what actually occurred on November 8, 2000.  The bulk of the testimony consisted predominately of extreme character assassination and the incessant demonization of Cameron Brown.  The primary function of this testimony was emotional appeal.  In this way prosecutor Hum endeavored to paint a very unfavorable picture of Cameron Brown to make the jury dislike him, so he could get them to convict him of something. (Trial Transcript, Page 7330, Lines13-27) This was the main focus of the prosecution’s case: character assassination with a very scant amount of testimony about their primary theory that Cameron Brown threw his daughter off a cliff. 

However, interwoven into their case was a secondary theory that alleged Cameron Brown intentionally took his daughter to the most dangerous area on top of Inspiration Point and allowed her to run around up there; and there was an implication that he hoped she would fall.  The vast majority of what was presented by the prosecution was in support of this secondary theory. 

The prosecution’s two theories are NOT based on rational inferences from ambiguous evidence that could result in multiple theories.  Their primary, overt theory is very clear; the only way Lauren could have sustained her injuries is if Cameron Brown threw her off the cliff, to the exclusion of any other possibility. (Trail Transcript, Page 9456, Lines 12-14, 17, 18) Their secondary theory is that Cameron Brown allowed Lauren to run around on the most dangerous area on top of Inspiration Point, hoping she would fall.  Their primary and secondary theories are supported by contradictory and mutually exclusive underlying facts, making the two theories inconsistent at their core.  As a result, each theory makes the other one impossible.  Thus, Cameron Brown was tried for two contradictory and mutually exclusive theories about a single event.  Another way one can look at it is that he was tried twice for the same thing, albeit simultaneously, as he was tried for two different, distinct and conflicting theories in one trial; and he was indictment for only one of them.  

THE FUNCTION OF THE PROSECUTION’S TWO THEORIES

The prosecution’s primary theory was the basis to charge Cameron Brown and get an indictment.  It is the theory the prosecution relied on to get them into court.  However, once in court, the main emphasis of the prosecution’s case was on their secondary theory, as they pursued an implied malice theory for second degree murder. 

Their primary theory became a shadow argument.  The prosecution merely gave it lip service, bringing in just a couple of witnesses to support it. 

The bulk of the prosecution’s case was in support of their secondary theory, making it the prosecution’s real case.  This must, at the very least, constitute a Due Process violation against Cameron Brown. 

KEY EVIDENCE PRECLUDES PROSECUTION’S SECONDARY THEORY

For nearly two years Sheriff’s investigators had endeavored to come up with evidence to charge Cameron Brown with murder, to no avail.  After nearly two years of expert shopping, Sheriff’s investigators had come up empty.  That’s when Prosecutor Hum intervened and brought in expert witness Dr. Wilson C. Hayes.  (Trial Transcript, Page 6486, Lines 8-9)

Dr. Hayes concluded that the crime of first degree murder had been committed to the exclusion of all other possibilities. (Trial Transcript, Page 6982, Line 7 to Page 6983, Line 1) He said that by looking at the relationships between Lauren’s injuries, the topography of Inspiration Point, and the laws of physics, (Trial Transcript, Page 6957, Lines 11-16; Page 6959, Lines 13-18) he came to the “inescapable conclusion” that the only possible way Lauren could have sustained her injuries is if she was “launched forcibly from the top of that cliff.” (Trial Transcript, Page 6924, Lines 17-26)  He didn’t say it was just one possibility.  He said that it was a certainty—that it was the only possible way the fall could have occurred.  (Trail Transcript Page 9456, Lines 12-14, 17, 18)

Dr. Hayes documented his conclusions in a report he created on September 12, 2003 for the prosecution.  This report is the single piece of evidence that got this case into court.  Without it there is nothing to indicate that a crime, instead of an accident, was committed. (The ME was only willing to say that Lauren died of blunt force trauma. He was unwilling to call it a homicide based on Lauren’s injuries.  Only by deferring to others did he eventually call it a homicide; Autopsy Report, pages 7-8.  This will be examined in detail in a later post.)

Once in court, prosecutor Hum put very little weight on Dr. Hayes’ conclusions.  Instead he concentrated on his secondary theory that alleges Cameron Brown allowed his daughter to run around on an area that slopes down toward the ocean at the edge of the cliff.  There is no credible evidence to put them there.  Moreover, evidence for their primary theory excludes the possibility that she could have fallen to her death in that matter. (Trial Transcript, Page 6979, Line 25 to Page 6981, Line 1; Page 6982, Lines 21-23)

Nevertheless, once in court prosecutor Hum concentrated on his secondary theory, going for implied malice second degree murder.  He was confident the jury would be instructed on implied malice for second degree murder, due to a requirement for jury instructions on lesser related offenses, and he took advantage of it, despite the fact that it contradicts the evidence used to charge and indict Cameron Brown. In this way he prosecuted Cameron Brown for a theory that contradicts the evidence that got him into court.   

CA SUPREME COURT’S RULINGS ON LESSER INCLUDED / LESSER RELATED OFFENSES

Under California law, “[a] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.”  The Supreme Court of the State of CA has consistently stated that whether a lesser offense is necessarily included must be based on the statutory elements and the accusatory pleading without regard to the evidentiary presentation. (People v Ortega (1998) 19 Cal.4th 686, 698) The purpose of the rule is to allow the jurors to convict of either the greater or lesser offenses where the evidence might support either.

Despite these rulings, the case against Cameron Brown makes it manifestly evident that this is not how the law is practiced in California.  Even though the evidence used to charge and indict Cameron Brown takes as fact that Lauren was thrown off the cliff to the exclusion of any other possibility; and this makes the prospect for implied malice second degree murder impossible, all the defense attorneys involved believed the law requires jury instructions for second degree murder and involuntary manslaughter.  Furthermore, prosecutor Hum was so confident that he’d have an opportunity to try the case on an implied malice theory for second degree murder, that he built the bulk of his case on it, despite the evidence he used to acquire an indictment.    

Even the jurors, it appears, intuitively knew what the attorneys did not know.  The first legal question they asked was: "Do you have to believe beyond a reasonable doubt that he threw her in order to find the defendant guilty of murder in the first or second degree?"  (Trial Transcript, Page 10803, Lines 1-6)

“I think that the very simple answer to that question is no, and that's the only answer that need be given,” Mr. Hum said.  “Certainly, I think all counsel would agree that on implied malice theory for second degree murder, there is certainly no requirement to show that the defendant threw Lauren off the cliff.”  (Trial Transcript, Page 10803, Lines 11-17)

An implied malice theory for second degree murder is in contradiction to the prosecutor’s indictment, and therefore, in contraction to how the CA Supreme Court consistently rules on the matter, yet the prosecutor boldly and confidently advanced an implied malice theory for second degree murder every time the issue came up.   

PROSECUTION’S “EVIDENCE” FOR SECONDARY THEORY DOES NOT MEET STANDARDS FOR INDICTMENT

The prosecution’s secondary theory is that Cameron Brown allowed his daughter to run around on an area that slopes down toward the ocean at the edge of the cliff.  There is no credible evidence to put them there.  Moreover, evidence for their primary theory—the evidence used to get an indictment and get into court—excludes the possibility that she could have fallen to her death if she had fallen from the sloped area.  (Trial Transcript, Page 6979, Line 25 to Page 6981, Line 1; Page 6982, Lines 21-23)

 The “evidence” used by the prosecution to put them on that slope consists of impressions in the dirt which the crime lab analyst determined were NOT footprints, and statements by several officers, which are all problematic.  The “evidence” used to put them on that slope does not meet the standards to charge and indict Cameron Brown.  The prosecutor made up for lack of credible evidence by constant repetition of the allegation that they were on the slope, thereby causing the jurors to believe it was an established fact. 

A STRATEGY TO EMOTIONALLY MANIPULATE THE JURY

The prosecution’s approach to convince the jury that an implied malice second degree murder offense had taken place was as follows: he appealed to the juror’s emotions throughout the trial; (Trial Transcript, Page 7330, Lines13-27) at the end shocked the jurors’ sensibilities and immediately sent them into the deliberations room. 

Throughout the trial the prosecution’s case was centered on character assassination and the demonization of Cameron Brown, coupled with the constant repetition that Lauren fell from the sloped area at the edge of the cliff.  At the end the jury was taken to the site and shown the sloped area.  Despite the fact that there is no credible evidence that Cameron and Lauren were on that slope, it was presented as an established fact.  The consequence was to shock the jurors’ sensibilities.  Immediately upon shocking them, the jurors were sent to deliberate.

The effect of shocking the jury is revealed by events that happened near the end of deliberations.  On Friday, September 25 the jury indicated they were deadlocked.  Instead of polling them, the Court instructed them to return on Tuesday, September 29 and resume deliberations. On Tuesday morning they submitted a question.  The foreman said, “Most felt until they had an answer to the question they couldn't continue deliberations.”  (Trial Transcript, Page 12319, Line 28 to Page 12320, Line 4)

The trial transcript does not record the question. Instead the Court asked counsel to review it in written form. (Trial Transcript, Page 12301, Lines 18-28) Yet, it is clear from the discussion that followed the question had to do with the site visit and the feelings the site visit generated.  The crux of the question was: are the feelings generated by the site visit evidence. (Trial Transcript, Page 12301 to Page 12308; Page 12335 to Page 12338) The ensuing discussion about the question covered the following points.  These excerpts capture the gist of the discussion regarding the jurors’ question:

“I think the answer is yes,” the prosecutor responded. “I mean the whole purpose of going out to the location was to have them see and understand the area and the dangerousness of the location. And certainly, the dangerousness of the location and their feelings about that is relevant to both the first and the second; and particularly with regard to an implied malice second.”

Defense counsel responded, “What is not evidence, as stated in the jury instruction, is emotions and any emotional feeling or emotional reaction is not to be used.” 

 “I would disagree with that because I think that especially when we are talking about - - again, if we are talking about an implied malice second degree murder, their feelings about the location are important. Their feelings with regard to the dangerousness, their feelings with regard to whether or not the defendant would recognize the danger, all of that is appropriate evidence for them to consider when they are making a determination as to whether or not there was implied malice,” Mr. Hum said. “Their feelings with regard to the location, I think, is appropriate evidence.

“The danger to which Mr. Harris refers is the gut, visceral, emotional response,” the Court said.

And the prosecutor responded, “I guess the problem I have is what feelings about the location that we visited would not be appropriate for them to consider?”

“Well, I think that is -- the jury instruction, I think, is very clear that you are not to bring in emotion in terms of making decision. I think the problem I have with Mr. Hum’s argument is that he is attaching feelings, the phrase "feelings," to … an emotional reaction. That is a feeling that should not be taken into consideration,” defense counsel responded.

“Their emotional response, their visceral response to being out there, is certainly something that they can consider in evaluating the behavior of the defendant,” the prosecutor said.

[Trial transcript, page 12302, line 1 – page 12308, line 12]

After that occurred, the jury deliberated for four more days for an average of 2.5 hours per day.  Prior to that, they had been deliberating for an average of 7 hours per day.  This suggests that after the Court would not accept that they were deadlocked there was a shift in the jury’s frame of mind.  More importantly, this dialogue reveals the weight the prosecutor put on the jurors’ visceral, emotional response to the site visit, and his emphasis on an implied malice second degree murder. 

What is revealed is a strategy that entailed emotionally manipulating the jury throughout the trial, shocking their sensibilities at the end, and immediately sending them into the deliberations room.  This is what was necessary for the prosecution to endeavor to convict on an implied malice second degree murder, since they did not have any real evidence for their secondary theory. After being subjected to such a strategy, it’s no wonder emotion drove the jury’s decisions, not credible evidence presented at trial.   Facts were secondary to feelings in this case. 

This strategy could not withstand a final outcome of not guilty for first degree murder and a hung jury over the lesser uncharged offenses.  Since that was the outcome reported in the court proceedings and recorded in the trial transcript, the post trial machinations were required to give the prosecution another opportunity to try to convict the defendant. 

Multiple Double Jeopardy Violations



INTRODUCTION

In the case of The People of the State of California vs. Cameron John Brown, Cameron Brown is charged with first degree murder, accused of throwing his daughter, Lauren, off a cliff.  As a result he has been held without bail since 2003.  There have two trials in the matter.  The first trial ended with a bona fide hung jury. 
 

The second trial ended with an implied acquittal for the charged crime of first degree murder, and a six-six spilt between second degree murder and involuntary manslaughter.  At that point the case took a bizarre turn with antics from the prosecution that have never been seen in American jurisprudence.  One must go back to the days of Lord Mansfield, the noted 18th Century reformer of English law, to find a parallel in a court of law to what happened in this case.
 

The second trial was held in Department 107 of the Los Angeles County Superior Court, presided over by the Hon. Michael E. Pastor.  It was prosecuted by Los Angeles County Deputy District Attorney Craig Hum and Cameron Brown was represented by attorneys Eugene “Pat” Harris and Lara Yeretsian, who were with the Geragos & Geragos law firm at the time.

JURY RETURNS VERDICT OF IMPLIED ACQUITTAL ON CHARGED OFFENSE

After a lengthy trial (from July 27, 2009 to October 5, 2009) in which prosecutor Hum presented a case with very little actual evidence, but loaded with emotional appeal, character assassination, and the demonization of Cameron Brown, the case went to the jury. 

 

On the morning of October 5, 2009 the jury indicated they had reached a unanimous verdict and simultaneously sent a note to the Court.  That afternoon, after examining the note the Court found the jury was deadlocked.  (Trial Transcript, page 13523, line 22 through page 13524, line 15).  “Obviously there is a real misunderstanding of the nature of a verdict,” the Court said.  (Trial Transcript, page 13525, lines 23-24)  The jury’s confusion over what constitutes a verdict was expressed several more times during that afternoon’s proceedings. (Trial Transcript, page 13527, lines 21-24; page 13538, lines 11-12, 20-23; page 13535, lines 13 - 27; page 13540, lines 20- 22.)   The transcripts along with other court documents referenced herein can be found at: http://freecambrown.org/Outcome/

 

After the Court polled each member of the jury and questioned the jury foremen, he found that the jury was split six-six between some degree of murder and involuntary manslaughter. (Trial Transcript, page 13535, line 23 through page 13537, line 6)  At that point, without inquiring if the six votes were for first degree or for second degree, the Court declared “legal necessity for a mistrial.” (Trial Transcript, Page 13540, Lines 16-19)

 

During the questioning the foreman stated that the jury voted on all the following possible option.  The six-six spilt came from this vote.

1. Murder in the First Degree,
2. Murder in the Second Degree,
3. Involuntary Manslaughter, and
4. Not Guilty of All Charges.

(Trial Transcript, page 13535, line 28 through page 13536, line 7) 

 

A sidebar followed where defense counsel insisted the Court must ask if the six split was for first or second degree murder. The Court tried to evade the issue by referencing CALJIC jury instructions and pointing out that “it appears as though they are deadlocked. (Trial Transcript page 13536, line 24 through page 13538, line 2)  Defense counsel pointed out that the jury voted on only two permutations and one was involuntary manslaughter; and again he insisted that it was necessary to find out if the other permutation was for first degree or for second degree murder. (Trial Transcript page 13538, lines 3-9) Once again the Court referred the CALJIC jury instructions, again trying to avoid finding the answer to that question. (Trial Transcript page 13538, line 10)  Defense counsel prevailed, and the Court continued to question the foreman.

 

The foreman said the split was six for second degree murder and six for involuntary manslaughter. (Trial Transcript page 13540, Lines 20-27)  The Court then asked if they were deadlocked on the charged crime of murder in the first degree.  “No, the jury is not deadlocked on that,” the foreman expressly stated.  “Then I am confused,” the Court responded.  (Trial Transcript Page 13541, lines 3-8). This inquiry revealed that the jury returned a verdict of implied acquittal on the charged crime of first degree murder. 

 

(In Blueford v Arkansas (2012) 566 U.S. ––––, 132 S.Ct. 2044, 182 L.Ed.2d 937, the US Supreme Court held that, in a state which does not have a partial acquittal rule, if a jury deadlocks on a lesser included offense but doesn’t formally return a verdict of not guilty on the greater offense, the defendant may be retried on both the greater and lesser offenses. (Id., 132 S.Ct. at pp. 2048-2053.)  The CA Appeals Court subsequently upheld partial verdicts in CA in People v Aranda. Case No. E056708 (CA Dist. 4 Ct. App., Div. 2, Sep. 12, 2013); publication pending.  Therefore, according CA law, Cameron Brown was legally acquitted of first degree murder on October 5, 2009.  This is the first way double jeopardy attached in this case)

 

Not one juror made any attempt to dispute the foreman’s assertion that jury was not deadlocked on the first degree murder charge; nor to correct the foreman on his representation that the jury was split six-six, an assertion he made more than once. Two sidebars took place after the foreman made these assertions and not one juror corrected the foreman during the sidebars (Trial Transcript page 13537, line 6 – page 13538, line 24; page 13541, line 10 – page 13543, line 12)  

 

In spite of the revelation that the jury was unanimous on the first degree murder charge, Judge Pastor insisted on proceeding with a mistrial, “I declared a mistrial.  That is the current state of affairs.  So thank you,” the judge said. (Trial Transcript, Page13543, Lines 10-12)  Thus he implied that he had no recourse once he declared a mistrial despite his discovery of the jury’s unanimous vote. At that point, he discharged the jury.  However, what he actually declared was “legal necessity for a mistrial.” Mere seconds later, the jury’s unanimous vote was revealed, which nullified any legal necessity for a mistrial.

 

When Judge Pastor discovered that there were no guilty votes for the charged offense of first degree murder, even after he declared “legal necessity for a mistrial,” he had a duty to inquire further of the jurors and instruct them to deliberate further on that charge, because he had an obligation to receive the jury’s verdict on it, but instead he discharged the jury.  By doing so he aborted the trial before it had come to its final conclusion.  This is the second way double jeopardy attached in this case (but I am getting ahead of myself). 

 

Immediately after the trial there was a news conference in front of the courthouse where several discharged jurors interacted with Sarah, Lauren’s mother.  (A picture of Sarah interacting with two of the jurors can be found here: http://tinyurl.com/TimesArticleJuryPicture)

 

Defense counsel filed a motion to enter a judgment of acquittal for the first degree murder charge or alternatively, to dismiss the first degree murder charge on the grounds that prosecuting Cameron Brown again is a violation of the Fifth Amendment to the US Constitution, and Article I, Section 15 of the California Constitution, which protect a defendant from Double Jeopardy. This was for the first way that double jeopardy attached to this case.  His rationale was stated as follows: the prosecution’s “failure to muster even one vote for first degree murder is an undeniable repudiation of the prosecution’s theory and clearly invokes the double jeopardy clause.” (Defense Motion to Dismiss, Page 1) That motion was heard on January 28, 2010 by Judge Pastor.

JURY IMPEACHES ITS OWN VERDICT - WITH PROSECUTOR’S HELP

At the January 28th hearing, in conjunction with his Opposition to the defense Motion to Dismiss, prosecutor Hum submitted a “declaration” over his own signature, which is a sworn statement, in which he asserted that former Juror 9 contacted him with a tale to tell.  Juror 9 is the juror who committed misconduct during deliberations and led other jurors to commit misconduct as well.  (Trial Transcript Pg 13508, Line 28 to Pg 13509, Line 23; Pg 13510, Lines 6-7; Pg 13510, Line 17 to Pg 13511, Line 9)

 

Former juror 9 allegedly called the prosecutor later in the day on October 5, 2009, after the trial ended.  This now-discharged juror allegedly informed the prosecutor that the outcome as reported in the court proceedings and recorded in the trial transcript was incorrect, and the correct outcome was one vote for first degree murder, six for second degree murder, and five for involuntary manslaughter.  This discharged juror also volunteered to contact the other discharged jurors, according to Mr. Hum, and instruct them to call him as well.  Subsequently, five more discharged jurors allegedly called the prosecutor some time after they had been discharged. 

 

Mr. Hum sent each of these discharged jurors a document that he himself—the prosecutor—had prepared, and asked them to sign it and return it to him.  This document was a sworn statement, like the one that he submitted in his own name.  It stated that the six-six outcome as recounted in court proceeding was somehow incorrect and that the “correct” outcome was one-six-five.  In this way the jury impeached its own verdict with the prosecutor's help.

 

Two former jurors who had submitted declarations sat with Sarah at that hearing; and one had his arm around Sarah’s shoulder during most of the proceeding.  (An account of this can be found here: http://www.dailybreeze.com/general-news/20100128/trial-ordered-again-in-cliff-death)

THE COURT’S “KING’S X” RATIONALE

Judge Pastor denied the defense’s motion. His denial was based on two alternate lines of reasoning.  First he accepted the prosecutor’s “declarations at face value. (Hearing Transcript, Page 25, Lines 15-27)   His alternate line of reasoning, he said, was because he gave the jury the Stone instruction, which “made very clear to the fact finder the protocol and procedure by which it would evaluate the charged offense and any lesser included offense.” (Hearing Transcript, Page 26, lines 1-17)  After making that statement he gave an account of everything that happened in the courtroom up to, but excluding his asking about the exact nature of the split.  (Hearing Transcript page 26, line 20 through page 31, line 16) 

 

The following facts were omitted from the judge’s account:

 

1)     The jurors voted on the following possible charges: murder in the first degree, murder in the second degree, involuntary manslaughter, and not guilty of all charges. ( Trial Transcript, Page 13535, Line 28 to Page 13536, Line 7)

 

2)     The Court inquired about the exact nature of the split.

 

3)     The jury foreman reported that there were six votes for involuntary manslaughter and six votes for second degree murder.

 

4)     The Court asked, “Did the jury reach any verdict as to the charged count of murder in the first degree or is the jury deadlocked on that.”

 

5)     “No, the jury was not deadlocked on that,” the jury foreman stated.  ( Trial Transcript, Page 13540, Line 20 to Page 13541, Line 7

 

These omitted facts made the outcome crystal clear, since it was stated orally in the courtroom exactly what happened and what the verdict was.  However, the Court excluded these facts from his alternative rationale and pretended like they never happened.  It was as if the judge was saying, like children playing in the schoolyard, “King’s X, I didn’t mean for that to come out, I take it back.”    

 

Consequently, instead of dealing with the facts Judge Pastor’s argument engaged in what could have been if—if he had stopped asking questions sooner—and he pretended that’s what happened.  He argued that he wasn’t required to ask about the split.  “The jury was provided with Stone,’” he said.  “I made my inquiry.  As far this Court is concerned that was all that would have been required.  And I think it was a solid basis for my simply saying, ‘Thank you, you are excused.’”  (Hearing Transcript, Page 27, Lines 9-18)

 

Even if the judge could have excused the jury at that point, that is not what happened.  The reality is that he continued his inquiry, and that inquiry resulted in the following discovery.

 

1) The split was six-six for second degree murder or involuntary manslaughter. (Trial Transcript, Page 13540, Line 25 to Page 13541, Line 2)

 

2) The jury was unanimously on the charged crime of first degree murder and they did not vote guilty.  (Trial Transcript, Page 13541, Lines 3-7)

 

Although the jury never explicitly stated that they voted “not guilty” on the charged crime of first degree murder, the foreman told the Court that the jury voted it; they were not deadlocked on it; and the six-six spilt was between second degree murder and involuntary manslaughter. Therefore the only possible outcome for their vote on first degree must necessarily be that they unanimously declined to vote “guilty”—which is an acquittal.  Otherwise, there would have been a conviction.  While the jury also stated they had not reached a verdict on that charge, their confusion over what constitutes a verdict was confirmed by the Court, and it was well documented that afternoon. 

 

The actions by the prosecutor and judge at the January 28th hearing resulted in the third way double jeopardy attached in this case

DOUBLE JEOPARDY DUE TO COURT ABORTING TRIAL PREMATURELY

According to case law the Court had a duty to inquire of the jurors the number of votes for first degree as opposed to second degree before declaring a mistrial.  Judge Pastor failed to do that.  Nevertheless, the law requires that when the Court believes the jury didn’t agree on any verdict, and preliminarily announces his intention to discharge them, but then discovers, before the jury leaves the box, that his belief is incorrect, as occurred in this instance, the Court must rectify its misunderstanding and receive the verdict the jury unanimously agreed upon.  Moreover, the Court is remiss in its duties if, before it loses control of the jury, it discovers such a situation had developed and does not correct it.  When not corrected, a mistrial is deemed to be without legal necessity as to that offense, and double jeopardy principles preclude retrying the defendant for that offense.   (People v Powell (1950) 99 Cal.App.2d 178, 181-182; Stone v Superior Court (1982) 31 Cal.3d 503, 519)

 

Thus, when Judge Pastor discovered no guilty votes for the charged offense, after he declared “legal necessity for a mistrial,” he had a duty to inquire further of the jurors and to instruct them to deliberate further, as he had an obligation to receive the jury’s verdict on it. Instead he discharged the jury, and in this way he aborted the trial before it had come to its final conclusion.   Thus double jeopardy attached. 

 

Judge Pastor addressed the issue that the trial was aborted prematurely when he stated the following about the six-six split, at the January 28th hearing: “These are tentative expressions as part of the give and take of the jury system. It is not at all unusual, but the key to it is it was not a completed verdict … Any expression was a tentative expression, perhaps out of frustration, wheeling and dealing, et cetera, but it was not a completed verdict.”  (Hearing Transcript, Page 29, Lines 15-18, 24-27)

 

That is precisely the point—it was not a completed verdict, yet the jurors were unanimous on the charged crime of first degree murder.  That fact was expressed in open court, as it was clearly stated that they had voted on all the possible options and they were NOT deadlocked on the first degree murder charge.  In that situation, Judge Pastor had a duty and an obligation to instruct the jury to deliberate further on the first degree murder charge and bring the verdict to completion.  However, Judge Pastor failed to do that.  As a result he aborted the trial prematurely.

 

He tried to obfuscate that fact at the January 28th hearing by pretending as if the omitted facts had never happened!  Over forty years ago, U.S. Supreme Court Justice John Harlan II stated that once a trial begins, a defendant has a legitimate interest in getting the trial over with “once and for all,” (United States v Jorn (1971), 400 U.S. 470, 486) something Cameron Brown was deprived of when Judge Pastor discharged the jury prematurely.  Consequently, he’s been incarcerated without bail for an additional five years.

DOUBLE JEOPARDY VIOLATION DUE TO BAD-FAITH CONDUCT BY JUDGE OR PROSECUTOR

Another basis for a double jeopardy violation in this case is on the authority of “the Double Jeopardy Clause bars retrials where ‘bad-faith conduct by judge or prosecutor’ threatens the ‘(h)arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant.” (United States v Jorn (1971), 400 U.S. 470, 485; 91 S.Ct. 547, 557; 27 L.Ed.2d 543, 556 (plurality opinion); Downum v. United States (1963), 372 U.S. 734, 736; 83 S.Ct. 1033, 1034; 10 L.Ed.2d 100.) Judge Pastor’s premature dismissal of the jury fits this criterion, since the direct result of declaring a mistrial and prematurely aborting the trial was to give the prosecutor another opportunity to try to convict the defendant. 

 

An additional matter that qualifies Judge Pastor for “bad-faith conduct by judge” is his “King’s X” rationale, where he pretended that some of the proceedings before him never happened and used that pretense to deny the defense’s motion to dismiss.  Surely Judge Pastor knew his rulings and the final disposition of a case must be decided on the totality of what's discovered through the testimony and court proceedings.  The Court cannot say, “King’s X, I didn’t mean for that to come out,” and pretend like some court proceedings never happened.  Yet that is exactly what Judge Pastor did.  The direct result of that was that it gave the prosecutor another opportunity to try to convict Cameron Brown.

 

Additionally, the prosecutor’s submission of the juror “declarations” could be viewed as “bad-faith conduct,” given that they are not only a violation of California case law (People v. Spelio (1970) 6 Cal. App.3d 685, 690 [86 Cal. Rptr. 113]; People v. Villagren (1980) 106 Cal. App.3d 720, 729 [165 Cal. Rptr. 470]; People v. Williams (1988) 45 Cal. 3d 1268, 1318 [248 Cal. Rptr. 834]) but also of statutory Federal Law!  (18 U.S.C. § 242, Deprivation of Rights Under Color of Law)  A case can also be made that Judge Pastor was also involved in this “bad-faith conduct,” since Mr. Hum should have referred the matter to the Court and not handled it himself.  The fact that Judge Pastor acted as if it were nothing out of the ordinary, and accepted its results suggests that he cooperated with the scheme. Furthermore, the fact that prosecutor Hum would even attempt such a stunt, with the potential consequences against him, indicates that he must have had some assurance beforehand that he could get away with it. This indicates and that Judge Pastor must have been complicit in it, as well.  The direct result of the juror declarations was to give the prosecution another opportunity to try to convict.

 

  THE STATE BLOCKS CAMERON BROWN FROM FIGHTING THE MULTIPLE DOUBLE JEOPARDY VIOLATIONS AGAINST HIM

 

The basis for the defense motion heard on January 28 was on the grounds of violation of the Fifth Amendment to the US Constitution, and Article I, Section 15 of the California Constitution, the first way double jeopardy attached to this case. Subsequently defense counsel filed the motion with the California Court of Appeal.  The motion was inexplicitly denied just a few days after it was received, inclining one to believe that the Appeals Court denied it without reading it.  (There were rumors that the Appeals Court denied the motion because Judge Pastor contacted the Appeals Court and told them that facts identified by the defense were erroneous, and the scenario described by his “King’s X” rationale was what really happened.  However, it should be noted that these rumors are unsubstantiated.)

 

The motion should have been filed with the CA Supreme Court, but unfortunately Cameron Brown was financially devastated after two costly trials. As a result, he was forced to rely on state appointed counsel.  The problem was that the state provided him with an attorney to retry the case, but refused to provide him with one who would fight the double jeopardy.  This is exactly the situation that the Double Jeopardy clause was intended to prevent.

 

Cameron Brown had to turn to pro per status to continue fighting the double jeopardy violation against him; however, the Court blocked him from completing that endeavor.  As a result double jeopardy due to the court aborting trial prematurely and double jeopardy due to bad-faith conduct by judge and prosecutor have never been litigated.  Cameron Brown is now being tried again for a charge he has, in fact, already been acquitted.