Judge: No mistrial in Merced teacher's abuse trial

Defense objected to dismissal of a juror

November 27, 2007 

MERCED -- A judge in the sex-crimes trial of Jesus Colmenero Rivera refused to grant a defense motion for a mistrial Monday, after the controversial dismissal of one of the 12 jurors in the case.

Merced Superior Court Judge Ronald Hansen ordered jury deliberations to move forward, with an alternate juror in the place of a 57-year-old Merced man who was dismissed last week. The judge excused him after the juror made a statement about his brother, a convicted serial child molester, during jury deliberations.

Rivera's attorneys, Mario DiSalvo and Woodrow Nichols, argued that a mistrial was in order, contending that excused Juror No. 3 hadn't engaged in any misconduct. They also made known their concerns about whether Rivera could receive a fair trial, after accusations by Juror No. 3 that some members of the remaining jury were biased against Rivera because of his sexuality.

Prosecutor David Sandhaus argued for the juror's dismissal last week, saying he was biased and that his experience with his brother was interfering with his ability to make a fair judgment the case.

On Monday, Hansen entered into evidence a Nov. 24 issue of the Merced Sun-Star, which contained an article about the dismissed juror. In the article, the former Juror No. 3 claimed that a female juror made homophobic remarks against Rivera, who is gay.

The former Juror No. 3 said another member of the jury stated that Rivera must be guilty solely because there are five alleged victims in the case -- even though the judge instructed the jury to consider each count separately. He also alleged, according to motion documents, that another juror was conducting legal research and reading about the case on the Internet.

Nichols and DiSalvo also believed there were grounds for a mistrial because some of the jurors ganged up against the sole dissenter on the jury in order to obtain a verdict.

Before dismissing the motion for a mistrial, Hansen decided to investigate the claims of jury bias raised by Juror No. 3 by interviewing each member of the jury separately. Members of the audience and the press were asked to leave the courtroom as Hansen conducted the questioning. After about 30 minutes, Hansen announced that jury deliberations would continue as scheduled.

Still, Sandhaus told Hansen he objected to the judge even considering the motion for a mistrial, calling the issues raised by Juror No. 3 in the Merced Sun-Star "total hearsay." Sandhaus said the Sun-Star has an agenda to "sell papers," telling Hansen that he was allowing a disgruntled juror to "strike back through the newspaper.

"To allow the Merced Sun-Star to set the agenda is unbelievable to me," Sandhaus said.

A gag order issued by Hansen, which prevents attorneys on both sides from addressing questions from the media about the Rivera's case, remains in place.

Rivera worked at Golden Valley High School as a Spanish and drama instructor until January 2004, when a student made a report of abuse to school administrators and police. Other students later stepped forward with allegations.

He is facing four counts of lewd and lascivious acts upon a child, one count of sexual battery by use of restraint, penetration with a foreign object of a person under 18, oral copulation, one count of penetration by a foreign object under force or duress and two misdemeanor counts of annoying or molesting a child.

Rivera has pleaded not guilty to the charges. He could spend 14 years in prison if found guilty, and could have to register as a sex offender for the rest of his life.

Although Monday marked the fifth day of deliberations for the jury in the trial, Hansen told jurors that they must reconsider all of the evidence and testimony in the case because the alternate juror now is involved in the case.

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