Murmurings of mistrial after soft-spoken witness

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EPHRATA — As jurors walked back into the courtroom late Tuesday afternoon after a short break, one of the alternate jurors — who observe the trial in the chance a juror needs to be removed — raised her hand.

She noted to the court that, after the jurors had been cloistered in a side room while the lawyers deliberated, she had overheard other jurors discussing that they could not hear everything being said by the witness currently on the stand.

N. Smith Hagopian, the former defense attorney who helped secure a plea deal for Julio Ceasar Albarran Varona in exchange for his testimony, had been in the middle of testifying as to the circumstances of that deal. Defense counsel had questioned how much Hagopian’s client knew about the murder before confessing to it, trying to determine whether that confession was made under false pretenses.

“We didn’t have it, we didn’t know it,” Hagopian said, referring to a probable cause statement detailing the state’s understanding of the case at the time.

That testimony was derailed by the alternate juror’s statement, however.

As noted by the court, jurors are required to follow along with all testimony in the order in which it comes before the court, and are expected to notify the court immediately if they cannot hear what is being said. When asked, five jurors volunteered that they had had difficulty hearing but didn’t notify the judge at the time.

Presiding Judge David Estudillo also admonished the jury that they were expressly barred during the trial from discussing the details of the case, including whether testimony was audible, while in the side room. That information could only be shared within the courtroom during normal proceedings, or discussed privately with the bailiff, Estudillo said.

Defense counsel noted that the jury’s failure to follow either guideline could possibly be considered jury misconduct and constitute the basis for declaring a mistrial. They did not immediately ask the judge to rule it as such, but retained the right to do so at a later date, Estudillo said.

Rather than determining what portions of testimony the five jurors had not heard and potentially overemphasizing or returning to certain parts, the court determined that the entirety of the testimony would be read aloud from the court reporter’s transcript. Due to the interruption and time required to clean up the transcription, the day’s proceedings were cut short and carried on to Wednesday.

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