The trial of a Cambria man accused of sexual assault got off to a rocky start Tuesday when a judge dismissed the entire panel of prospective jurors after the county’s elected District Attorney — who’s personally prosecuting the case — made improper statements about his burden of proof.
The rare ruling made moot a day and a half of jury selection, and the trial started from square one with a fresh panel of twice as many prospective jurors Wednesday afternoon.
The case against Herbert Connor is notable because second-term District Attorney Dan Dow personally took over courtroom duties, he said, because he wanted to get back into the courtroom.
The setback for Dow came when Superior Court Judge Jacquelyn Duffy agreed with a defense argument that he made hypothetical statements trivializing the standard of reasonable doubt when questioning prospective jurors. The judge didn’t find that Dow committed prosecutorial misconduct.
Though dismissing the panel wasn’t required, Duffy did so at the request of the defense.
Connor, 73, is accused of groping and assaulting a 67-year-old Cambria woman with whom he had an on-and-off friendship in August 2017.
Connor has pleaded not guilty to felony charges of assault with intent to commit rape and sexual battery, as well as a misdemeanor count of inflicting corporal injury. He faces up to seven years in state prison if convicted on all counts.
According to testimony the alleged victim gave at a preliminary hearing in June, she says she had a long-term friendship and then as many as two sexual encounters with Connor in which she felt pressured but didn’t resist him, she said. Following a two-year split, the two reconnected and Connor allegedly forced himself upon her as he was helping her carry in groceries, pushing her into her bedroom door and groping her breasts.
“I thought that he was going to rape me,” she testified.
Following Tuesday’s jury disruption, Dow said he is “unable to comment publicly” because the case is still ongoing and jury selection was scheduled to continue Wednesday.
Dow gets in the game
It is unusual in San Luis Obispo County that a sitting district attorney, an administrator who oversees more than 30 deputy prosecutors and roughly 60 office staff, actually prosecutes a case in court.
The last DA to do so was since-retired Judge Barry LaBarbera in 1996, according to Tribune archives.
Dow took over the case in June after at least one deputy prosecutor was about to ask for the charges to be dismissed because of concerns with the case, according to court documents.
Dow’s direct involvement in the case adds a political element following his unsolicited commentary in local media — roughly two weeks before Connor was initially scheduled to go to trial — in which Dow encouraged readers to “start by believing” alleged victims of sexual violence.
Connor’s attorney, Ilan Funke-Bilu, found that Dow was sent a demand from the Cambria woman’s civil attorney that Connor be prosecuted or she would publicize the DA’s Office’s plan to drop the case. The attorney’s most recent demand came two weeks before the June 5 primary election, in which Dow was embroiled in a heated race against challenger Judge Mike Cummins.
Dow previously told The Tribune he took over the “important” case because it’s “the work I signed up to be a lawyer for” and that administrative duties had him “antsy” and wanting “to get in the game.”
Motion for a fair trial
Prior to the beginning of jury selection Monday morning, Duffy ruled favorably on a “motion for a fair trial” filed by Funke-Bilu in October that sought judicial intervention should Dow make any of 19 unlawful courtroom actions that could prejudice a jury.
For example, Funke-Bilu asked the judge to intervene and take curative action should Dow ask potential jurors questions that insinuate bad actions by Connor, make “unfounded hypotheticals,” make statements about possible consequences if Connor is not convicted, bring up religion, state his personal belief that Connor is guilty, appeal to jurors’ passions or prejudices, or to “trivialize” or misstate the standard of reasonable doubt.
Prosecutors bear the burden of proving a defendant’s guilt beyond a reasonable doubt in the U.S. criminal justice system.
On Monday, Duffy granted each of the defense’s 19 motions as well as some of Dow’s pre-trial motions, including a motion to exclude evidence of the alleged victim’s prior sexual activity and another to admit statements Connor made in a recording of a phone call between he and the alleged victim.
However, Duffy only partially granted Dow’s motion to exclude witnesses and evidence of the alleged victim’s medical treatment, as well as a motion to exclude evidence of the alleged victim’s civil attorney’s discussion with Dow over whether or pursue the case.
Duffy tabled Dow’s motions to exclude statements made by the alleged victim’s civil attorneys if introduced by Funke-Bilu to impeach the credibility of the alleged victim and another to exclude witnesses and evidence of the alleged victim’s medical treatment.
Improper argument made
After more than a day and a half of jury selection, Dow on Tuesday walked into the mine field set by Funke-Bilu’s motion.
According to court records, 62 prospective jurors were empaneled Monday. By Tuesday afternoon, court records show, approximately 17 remained in the pool when Dow presented hypothetical scenarios and questions that “trivialized” his burden of proving Connor’s guilt beyond a reasonable doubt.
“Who here flies in an airplane?” Dow asked prospective jurors, according to the transcript. “And who’s ever worried either on a plane or before going on a plane that this plane might go down? I know I have. It’s kind of a natural thing.”
After asking a juror how he or she “make(s) a decision to fly,” the person responded, “statistics.”
“If you had reasonable doubt, a doubt that was based in reason, would you get on that plane?” Dow asked.
The prospective juror responded no.
“So I think we’ve all been in situations where there might be something that could be dangerous, like getting on the freeway in L.A., different things,” Dow said. “And if your vehicle had a major mechanical problem with it, you know, would you let your children or your grandchildren ride in that vehicle?”
At that point, Funke-Bilu objected, citing the section regarding “trivializing reasonable doubt” in his motion for a fair trial, and asked that Duffy read the panel the court’s jury instruction for the standard of reasonable doubt.
Duffy excused the panel for a short recess, during which she directed Dow to not use the hypothetical airplane and vehicle analogies in his questioning.
After the court reporter provided the court a transcript of Dow’s comments, Duffy concluded that Dow didn’t commit prosecutorial misconduct, but that she was prepared to issue curative instructions to the panel unless the defense wished to start with a fresh panel.
Duffy then granted Funke-Bilu’s motion for a new panel.
Following the hearing, Funke-Bilu said that despite being on notice by the judge not to do so, Dow still trivialized the reasonable doubt standard against Connor.
“That is a very serious violation of the defendant’s rights to a fair trial,” Funke-Bilu said.
Jury selection began again Wednesday afternoon with a new panel of 125 prospective jurors. Opening statements could be delivered as early as Thursday afternoon.