Richard Hamlin’s motions for a new trial and dismissal were scheduled to be heard at 2:00 p.m on September 29, 2006 in Judge Eddie T. Keller’s courtroom in Placerville, California.  Following the rulings on these motions Judge Keller would sentence the former Sacramento County prosecutor and high profile defense attorney.

According to Richard Hamlin, the public was denied access to the courtroom while the court heard in camera a motion by the defendant Richard W. Hamlin and co-counsel Bob Banning to compel the attendance of subpoenaed witness John Arnold.  Arnold, a juror in the Hamlin case failed to appear and Judge Keller would not compel the subpoena.  The defense had alleged jury misconduct and believed Arnold could provide essential testimony to sustain that allegation.  Judge Keller denied the defense request requiring this witness to appear.

Once this decision was made, the doors to the court opened at 2:30 p.m.  The crowded hallway tightly packed with cameras, reporters from the national and local media and supporters of both Susan and Richard Hamlin poured into the Judge Keller’s historic courtroom.  Slowly Susan Hamlin guided her four children into seats.  Her sister Terri Aal accompanied the group. Susan Hamlin was dressed in a light tan business suit.  She is an attorney licensed to practice in California.  Susan is thin with large, sad eyes and carefully coiffed silver hair.  Her face is narrow with fine features.  She appears both shy and composed.

Following a bailiff’s instruction the family took seats on the left side of the courtroom.  Several victim support staff joined the group that occupied the entire front row and spilled over into the second row of seats.  Susan put her arm around her youngest daughter Jenn and whispered quietly to Claire the older daughter.  To Susan’s right were her sons Alec, age 14 and Ryan, age 18.

Scattered throughout the courtroom were friends and family supporting Richard Hamlin.  Bradley Hamlin, Richard’s only sibling and younger brother sat nervously twisting his hands from time to time.  Bradley had become increasingly supportive of his brother as it became apparent that Richard was facing a life sentence on the conviction of torture.  Video cameras from local and network television stations poked out from their positions in the jury box. The producer of Prime Time and his camera man occupied prominent seats.  The objective and compassionate still photographer Dan Burkhart, employed by El Dorado County’s own Mountain Democrat, silently clicked away capturing the best images of the long day just as he had throughout the trial.

Judge Eddie T. Keller took the bench.  His popularity among the citizens of El Dorado County remains high and his announced retirement at the conclusion of this term in office was a disappointment to many.  Judge Eddie, as he is affectionately known, still retains his blonde hair framing a friendly face but he exerts a commanding presence on the bench.  His deputies announced his presence and the judge simply announced that the motions of the defendant Richard William Hamlin would now be heard.

Richard Hamlin rose to argue his motion for new trial.  Hamlin, age 45, wore a dark grey pin striped suit – perhaps one of the “lawyer suits” he wore when he was practicing law.  Now, the suit was a little large on his thin frame.  His shoulders were wide and his bearing upright, yet he had the pasty skin of a man who has been behind bars, out of the sun, for 2½ years.  Hamlin, who resigned from the State Bar with charges pending on April 20, 2006 had a distinguished and lucrative career as an attorney.  He learned his trade as a Sacramento Deputy District Attorney for five years and battled to convict Paul “Cornfed” Schneider, the Aryan Nation’s poster boy for intrigue.  He left the Sacramento District Attorney’s office and went on to represent several well-known Republican politicians in California government positions. By his mid-forties Hamlin had a $700,000 a year law practice and was living with his wife and four children in a million dollar home in El Dorado Hills.  He and his wife Susan Rae Hamlin, an attorney, who assisted him as an attorney in his law practice by writing legal papers, were known in Sacramento social circles.  The Hamlins attended Republican sponsored parties frequented by high-level government officials, judges and high-powered attorneys.

However, on this Friday afternoon, those past days of glory and the social renown in the State Capital and the El Dorado Hills mansion were only distant memories.  Richard Hamlin had initially been charged with 18 counts ranging from corporal injury of a spouse to torture, a felony count unique to the State of California.  Hamlin was found not guilty of about half of the charges.  However the most serious charge of torture resulted in a guilty verdict and on this day Richard Hamlin was simply a defendant facing a potential life sentence in prison for a violation of Penal Code Section 206, the crime of torturing his wife Susan.

Central to the conviction and the sentencing was Hamlin’s mental state in committing this crime.  The prosecution’s theory was that Richard Hamlin committed his crime for a sadistic purpose and/or for the purpose of extorting money from his father-in-law Dr. Sidney R. Siemer. Siemer, Susan’s father, now in his early seventies, is a doctor of agriculture and had lived until recently in Fresno, California.  Hamlin accused Dr. Siemer of sexually abusing his wife Susan as a child and he had demanded Siemer pay damages to the Hamlin family.  The District Attorney of El Dorado County Gary Lacy charged Richard Hamlin with beating his wife Susan in order to force her to make up a story in writing that her father was sexually abusing her while engaging in Satanic rituals as part of a Satanic cult.  The prosecutions theorized that the writings produced by Susan under Richard Hamlin’s duress were to be used to bolster Hamlin’s potential lawsuit against Susan Hamlin’s father.  This hypothesis resulted in the charge of torture by extortion.  Strangely, Hamlin was not charged with extorting Dr. Siemer.  In an unusual twist of the law, Hamlin was not charged with extorting the person he was charged with beating with the intent to extort.  Instead the prosecution charged the defendant with beating Susan to extort a third party, Dr. Sid Siemer.

Testimony in the long jury trial addressed both the effects of battered woman’s syndrome and satanic ritual abuse upon Susan Hamlin and her children, and whether it, in fact, occurred. The prosecution introduced as exhibits two tape recordings of “memory sessions” recorded by Richard Hamlin as he screamed at and hit his wife while trying to obtain a confession from her that she had molested her own children.  She did not confess on these tapes.  Hamlin had contended that one once occasion, a Satanic cult member beat his wife, not he.  The two alleged cult members, husband and wife, testified at trial and denied this.  Any mention of drug or alcohol use or sex was kept from the jurors by a stipulation signed by both parties.

On January 20, 2006, the jury delivered guilty verdicts as follows:

On or between the 1st day of June, 2003 and the 28the day of February, 2004, in the County of El Dorado, the crime of TORTURE, in violation of PENAL CODE SECTION 206, a Felony, was committed by RICHARD W. HAMLIN, who did unlawfully and with the intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion and for a sadistic purpose, inflict great bodily injury, as defined in Penal Code Section 1202.7, upon Susan Hamlin

Counts Two through Four dealt with charges of felony child abuse and endangerment. Each count alleged that Richard W. Hamlin caused his child "to suffer unjustifiable physical pain and mental suffering or to be placed in such a situation that his/her person and health may be endangered". Each count named one of the three children who had testified during the opening stages of the trial. (NOTE: The youngest daughter did not testify at trial.) Each count also covered the same time frame from the 1st day of November 2003 to the 26th day of February 2004, the day the children were placed in protective custody. In each instance the jury found Richard Hamlin NOT GUILTY of the felony charges. However, the jury did find him GUILTY of a lesser included misdemeanor counts of Penal Code 273a (b) "willfully causing a child to suffer unjustified mental suffering".

Count Six specified that between the 1st day of January and the 28th day of February 2004, the day Hamlin was arrested, he "did willfully and unlawfully threaten to commit a crime which would result in death and great bodily injury to Susan Hamlin, with the specific intent that the statement by taken as a threat", a Felony under PENAL CODE SECTION 422. The jury verdict was guilty.

Count Thirteen alleged that on or about the 11th day of February, 2004, Richard Hamlin inflicted "CORPORAL INJURY TO SPOUSE, in violation of PENAL CODE SECTION 273.5(a), a Felony". It also specified that the corporal injury inflicted resulted in a traumatic condition upon Susan Hamlin. The jury verdict was GUILTY of this charge

Count Seventeen charged that "on or between the 1st day of February, 2004, and the 26th day of February, 2004, the crime of CORPORAL INJURY TO SPOUSE in violation of PENAL CODE SECTION 273.5(a), a Felony was committed by Richard W. Hamlin, who did inflict corporal injury resulting in a traumatic condition upon Susan Hamlin". The jury found him GUILTY of this charge. However, it is very important to note that the prosecution had also attached a special allegation to this count alleging that Richard Hamlin inflicted great bodily injury upon Susan Hamlin. The jury found Hamlin NOT GUILTY of inflicting great bodily injury.

With the doom inherent in these verdicts on his mind, Richard Hamlin still mustered the strength to challenge the court.  He began, “The specific jury misconduct in his case is absolutely egregious especially the conduct of Juror No. 1, John Arnold and Juror No. 7, Robert Heissner.”

Hamlin acknowledged that Evidence Code 1150(a) prohibits the court from inquiring into the thought process of jurors (See Footnote: 1).  However, Hamlin said his argument regarding jurors John Arnold and Robert Heissner did not require such an inquiry, because these jurors simply did not follow the judge’s instructions which included, among other matters:

101. Cautionary Admonitions regarding “Jury Conduct” after the jury is selected.

“….during the trial, do not talk about the case or about any of the people or any subject involved in the case with anyone, not even
your family, friends, spiritual advisors, or therapists. You must not talk about these things with the other jurors either, until the
time comes for you to begin your deliberations. As jurors, you may discuss the case together only after all of the evidence has been presented, the attorneys have completed their arguments, and I have instructed you on the law. After I tell you to begin your deliberations, you may discuss the case only in the jury room, and only when all jurors are present.

You must not allow anything that happens outside of the courtroom to affect your decision [unless I tell you otherwise].
During the trial, do not read, listen to, or watch any news report or commentary about the case. Do not do any research on your own or as a group. Do not use a dictionary or other reference materials, investigate the facts or law, conduct any tests or experiments, or visit the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate.

Hamlin said the conduct of jurors Arnold and Heissner was not a mere minor violation of the court’s orders. They were required to listen to instructions and follow the court’s orders. They did not.

Hamlin pointed out that Deputy District Attorney Vicki Ashworth had not submitted any affidavit to oppose the affidavits the defense submitted regarding Mr. Arnold’s alleged misconduct.  Therefore, he argued the defense affidavits, which were not refuted, must be taken as true.

Hamlin urged the court not to confuse the burden of proof.  California case law has found some types of jury misconduct to be presumed to be prejudicial.   One of these types of misconduct occurs when a juror refers to an outside source for information to use in deliberations. Hamlin argued that the rules governing jury misconduct are clear.

California case law sets out a procedure to challenge jury misconduct:

"Jury misconduct raises a presumption of prejudice, and 'unless the prosecution rebuts that presumption ..., the defendant is entitled to a new trial.' The presumption of prejudice 'may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court's examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party’. Whether a defendant has been prejudiced by a juror's outside communications depends upon 'whether the jury's impartiality has been adversely affected, and whether the prosecution's burden of proof has been lightened and whether any asserted defense has been contradicted’. (See (People v. Miranda (1987) 44 Cal. 3d 57, 117 [241 Cal. Rptr. 594, 744 P.2d 1127].)

Hamlin said the affidavits of jurors Janet Johnson and Pat Reed showed Arnold and Heissner committed prejudicial misconduct.

At this point, some people in the audience were at a loss, not having read the these affidavits.  In fact, Hamlin had filed three affidavits and the affidavit of Pat Reed, in particular, pointed to jury misconduct which was presumptively prejudicial, in that Pat Reed declared that juror Arnold pre-judged the case before deliberations commenced, and used an online computer search to define “great bodily injury”

In short, these three affidavits stated as follows:

Juror No. 2, Pat Reed, stated in her affidavit that John Arnold said during the first week of trial that he wondered how long the case was going to take because a guilty verdict was a “no brainer”, a “slam dunk”. Arnold made this statement weeks before the defense presented its case and at a time the defendant’s innocence was presumed.

Juror Pat Reed also declared that John Arnold announced during deliberations that he had done an on-line computer search for the definition of “great bodily injury”.

Juror Pat Reed also declared that she overheard jurors John Arnold, juror No. 7 Robert Heissner and juror No. 11, Karen Lobaugh talking during deliberations whereupon she heard that they thought Hamlin was “scum” and that “he should get the death penalty.”

Pat Reed also reported that Juror John Arnold threatened to walk out of deliberations twice, once early on and again later in the last couple of days of deliberations.

Pat Reed declared that Juror No 7. Robert Heissner also threatened to walk out of deliberations twice and in fact did so at the end of the day on one occasion. Heissner became extremely angry toward the end of a day of deliberations and said “I’m not going to do this anymore.” Heissner walked out saying he wasn’t going to come back. Heissner’s leaving caused the jurors to stop deliberations.

Pat Reed declared that Heissner had gotten entrenched in his own point of view to the exclusion of opposing ideas. Heissner even apologized to the rest of the jury for getting angry with those who didn’t see things his way.

Pat Reed stated that even if all the testimony had been true, she did not believed Hamlin could be sentenced to life in prison for torture. She stated she was sorry about the guilty verdict as to torture. She stated she would not vote to convict on the torture charge if she could vote again. She stated that she felt a lot of pressure to deliver the guilty verdict on torture.

Juror No. 3, Janet Johnson filed an affidavit in which she declared that if she could vote again she would not vote guilty on the torture charge. She did not think Hamlin was guilty of the torture charge. She believed Hamlin should not get a life sentence.

Janet Johnson reported that Juror John Arnold announced to the jury during deliberations that he had done an on-line computer search “for clarification on the definition of great bodily injury.”

Janet Johnson stated that Juror Robert Heissner, threatened to walk out of deliberations twice and, in fact, did on one occasions.

Juror No. 6, Robert Vance, filed an affidavit in which he declared that juror John Arnold announced to the jury during deliberations that he had done an on-line computer search for clarification on the definition of “great bodily injury”. He states that “John” had told them of the on-line search and then tried to back peddle about finding anything perhaps realizing he had made a mistake.

Robert Vance stated that Robert Heissner had twice threatened to walk out of deliberations and, in fact, walked out on one occasions. Robert Vance stated he did not think Hamlin should receive a life sentence based upon the evidence he heard.

Robert Heissner filed a declaration submitted by the prosecution in which he stated: “At the beginning of deliberations I asked if it would be appropriate to have a dictionary in the jury room. I was told it would not be appropriate and the dictionary was never used.

According to a court transcript stated during an April 14, 2006 court appearance, Judge Keller, when asked who the bailiff was that had contact with Heissner and why it wasn’t reported, stated:

“It wasn’t Kevin Schmalz. It may have been Ken Danielson, because I did talk to him about it. I recall some mention being brought to my attention that one juror was asking if he could use a dictionary. The bailiff had already told him no, and I said that’s the correct advice, but perhaps we should have brought it to everybody’s attention”.

Juror John Arnold did not file any affidavit.

Referring to the jurors' affidavits he filed, Hamlin argued that anytime a juror goes outside the courtroom and looks for other information, it is presumptive misconduct.  Hamlin said, “Look at the atmosphere of the trial. The jury deliberated for three weeks. The court received a note from a juror regarding the definition of great bodily harm. Arnold did an online search regarding this question.”

Hamlin said, “We have presented data from a Google search and an MSN search for the key words 'great bodily injury."  Within these results are definitions contrary to what the court gave.  No one can believe the statement, “No, I didn’t find anything”.  During the jury deliberations when juror John Arnold said he did an online search, Janet Johnson rebuked him “You can’t do this!”

The issue of the definition of great bodily injury was integral to the jury’s verdict of torture, because that crime required that great bodily injury be proved beyond a reasonable doubt.

Hamlin turned to the issue of Juror Arnold’s prejudging the case.  He pointed to Juror Pat Reed’s affidavit that stated that she overheard juror John Arnold, juror Robert Heissner and juror No. 11, Karen Lobaugh talking during deliberations whereupon she heard that they thought Hamlin was “scum” and that “he should get the death penalty.”

Judge Keller interrupted Hamlin, pointing out that Pat Reed said she overheard a conversation between three people, not the words of one specific person. The implication was that this evidence was weak.

Hamlin countered, “The court should look into this, have a hearing to interview these jurors.  This is an issue not just important to me but involves jurors respecting the court.”

Hamlin continued, “Juror Robert Heissner was given the jury instruction that he must deliberate and listen to rules.  He should have been removed for failure to deliberate.  He threatened to walk out. In fact he walked out.  Heissner filed a declaration denying that he left the juror room.  But, if Pat Reed and other jurors are to be believed, then Heissner, by failing to deliberate started to control the deliberations.  He was rude and intimidating.  This is not a matter of the mental state of a juror pursuant to Evidence Code 1150.  Heissner’s actions were improper."

Then Hamlin accused the judge, “You heard about Heissner’s having a dictionary but did not let us know.  If we knew we could have made a record, looked at the dictionary, removed it from the juror.  That was denied to us.  It is impossible for the prosecution to overcome the burden of prosecutorial misconduct.”

Hamlin moved on and argued that juror Julianne Frey-Keeler withheld relevant information that had the defense known about it they would have challenged her for cause or used a peremptory challenge to remove her from the jury.  Hamlin learned from an article in the Mountain Democrat that Ms. Frey-Keeler worked in the emergency room.  Hamlin argued that her emergency room position inevitably required that she had specialized knowledge or training regarding domestic violence.  Hamlin argued she did not reveal this when questioned about such specialized knowledge.

The public did not know that the District Attorney had filed an affidavit by Ms. Frey-Keeler in which she stated that she worked as an “admitting float” at the hospital:

“My duties require that I admit patients who come into the emergency room or those who are being admitted for regularly scheduled surgeries or treatment. Any time spent with a patient, particularly in the emergency room, is relatively brief and is limited to personal information for accurate record keeping. I do not have specialized training in domestic violence due to my job. I do not belong to, nor did I at the time of this trial, belong to any organizations or groups related to domestic violence. As indicated in my questionnaire, any information I have relating to domestic violence comes from a family member who was being abused in the recent past.”

Then Hamlin argued that the judge had committed judicial misconduct.

Judge Keller bristled at this accusation, but said nothing.

Hamlin charged, “The problem was fundamental fairness. We needed information about Heissner’s bringing the dictionary into the jury room. You didn’t tell us he did this.”

The Judge interrupted, “Don’t repeat this issue.”

Hamlin stopped short. Hamlin had filed an affidavit to recuse Judge Keller for bias and this was denied prior to the motion for new trial.

Hamlin paused and attacked again, “You can’t punish us. You made a mistake of not notifying us. You didn’t capture the record. The Bailiff didn’t give us the information. If you deny a motion for jury misconduct because you were part of the denying of the information, this is fundamentally unfair.”

Hamlin then launched into a judicial misconduct argument regarding the testimony of Marcel Matley, a handwriting expert who Judge Keller found was not qualified as an expert.  Hamlin wanted Matley to testify that Susan Hamlin’s writings about her having been abused by her father, were not written under force or duress, allegedly caused by Hamlin, but were written voluntarily, not under stress.  Matley purports to be an expert as to whether writings are written under stress or not.  At trial, the judge said the evidence was denied on the basis of Evidence Code 800, which applied when a witness is not testifying as an expert but as a lay witness giving an opinion.

Judge Keller interrupted Hamlin, “It should have been Evidence Code 801. I misspoke.”

Evidence Code 801, applies when a witness is testifying as an expert, not as a lay person giving an opinion.

Hamlin didn’t accept Judge Keller’s explanation that he misspoke, and in fact used the correct analysis pursuant to 801.  Hamlin said angrily, “You can’t deny us that argument by misspeaking, and covering your tracks by now correcting it.  You relied on a statute that was not correct.”

Finally Hamlin argued that the court’s exclusion of the evidence of Susan Hamlin’s prior conviction for child endangerment was contrary to law. Hamlin argued that pursuant to People v. Wheeler (1992) 4 Cal. 4th 284, the court should have allowed the jury to hear the evidence.  Hamlin pointed to two bases for admission of the evidence.  First, the prosecution’s expert Dr. Bernard said spousal abusers can have their wives falsely arrested, and, second, Hamlin stood by his wife and had her admitted to a diversion program and the charges were dismissed, thus showing he did not participate in any arrest of his wife.  Hamlin became emotional and said, “In 1999, Susan left her 1-year-old and 3-year-old girls in a vehicle while she bought trinkets at Pier 1.  I came to her aide, and got her off with 90 days public service to get diversion, and it was not made public.  There was a consistent pattern of Susan hiding – she hid this from the kids.  I stood by her.  Regarding this prior conviction, she ignored the store employee who asked if she left her kids in the car.  She lied to the officer regarding her watching the van. She left the kids in the van in a way they could not be seen.  A person who was molested tends to be a perpetrator and abuses children”.

Suddenly, Richard Hamlin, brimming with emotions, sat down.

Deputy public defender and co-counsel Robert Banning spoke next.  He addressed the issue of the sufficiency of the evidence to sustain the verdict of torture.  First, he commented on the prosecutor’s argument.  He said the District Attorney made blatant misstatements on various pages of her legal brief.  Banning said there were ten not guilty verdicts delivered by the jury, and there was no finding of great bodily injury in regard to any of the verdicts, except the torture charge, and that three charges were dismissed.

Banning said there was no evidence adduced at trial that Hamlin abused Susan “daily”.

In regard to testimony regarding Susan’s injuries, Banning said the jury found as follows:

Regarding broken ribs – not guilty.
Regarding cut finger – not guilty.
Regarding stab to Susan Hamlin’s scalp, no doctors found any marks on Susan indicating this.
Regarding use of pieces of wood, pieces of pipe, a ball point pen, a sword, a taser and guns - not guilty.

Banning argued that in regard to Count 1, torture, there was insufficient evidence of great bodily injury.

He said, “There was a controversy within the jury about whether there was 'great bodily injury'. The concept is somewhat vague.  At the end of the trial – any specific allegation of great bodily injury was found in Hamlin’s favor.  Even physical danger regarding the children was found by the jury to be only a misdemeanor."

"These specific findings of no great bodily injury constituted the greater charge of torture. If no great bodily injury was found in any of these charges, then because torture encompassed these charges, there could be no great bodily injury to support the verdict of torture."

"Now," Banning, said, "the prosecution concentrates on other things beside great bodily injury. However, the prosecution did not provide any evidence of great bodily injury other than what they had presented in court."

“The prosecution argument that great bodily injury could have happened at other times – times not charged -- do not fly. If it existed, the prosecutor would have charged it,” Banning stated.

He continued, “The court gave instructions to the jury as to counts 5 through 18. Specific dates were given. Not a continuum of dates or a time between dates. Specific dates were given.”

“The prosecution attempts to bypass this argument by saying there was testimony of family members and friends regarding other injuries suffered by Susan Hamlin which were not charged. But the evidence showed this was not so. Susan Hamlin’s hairdresser testified that she did not see any injuries.”

“The prosecution says this is a well founded verdict based on sufficiency of evidence. The trial court standard of sufficiency of evidence should be used, not the appellate standard.”

“There was no proof of great bodily injury to justify torture.  After the jury found no great bodily injury in counts 5 though 18, there was nothing left to justify finding great bodily injury from any other evidence.  The judge’s instruction was that great bodily injury was ‘significant and substantial injury, not minimal injury’.  The prosecution could have charged Hamlin with causing additional injuries, but did not.”

“The charges state specific dates of the injuries and the prosecution can’t go back. It can’t now say that great bodily injury occurred during a continuum.” public defender Bob Banning concluded.

Deputy District Attorney Vickie Ashworth stood to address the court stating, “The major point is skipped by the defense. There is no misconduct by any juror. It is erroneous to say that if no affidavit is filed by a juror, the affidavits about his alleged misconduct must be considered true.  The jurors are not required to speak or give sworn affidavits.  The Bailiff is not required to talk.  And there is evidence to overcome the presumption.  Look at the verdict forms.  There was a mixed verdict – some guilty verdicts, some not guilty and on some counts the jury hung.”

The DA’s argument regarding prejudice was that the jurors Hamlin accused of committing prejudicial misconduct had actually agreed with all the other jurors and had acquitted him on many charges.  How can a juror be biased against a defendant if he acquits him on charges?

Ashworth, commented on juror John Arnold’s statement during the first week of trial that he wondered how long the case was going to take because a guilty verdict was a “no brainer”, a “slam dunk”.  Arnold made this statement weeks before the defense presented its case and at a time the defendant’s innocence was presumed.

Ashworth said juror Pat Reed alone heard  Arnold's statement.  It did not influence the jury.  Reed voted not guilty and guilty on various charges.  Thus, Ashworth implied that if Reed were truly influence by Arnold’s statement she would have found Hamlin guilty on all charges

Ashworth noted that there was no hung jury on all the charges.  She said that Arnold’s statement regarding “slam dunk” and “no brainer”, was an issue covered by Evidence Code 1150 which excludes evidence of the jurors’ mental processes in assessing prejudicial misconduct.

Ashworth said that there was no proof that when juror John Arnold did an online search for a definition of great bodily injury that he actually searched.  Arnold made no affidavit.  In fact, according to other jurors, he told them he didn’t find anything on line.

Again Ashworth argued that there was no substantial likelihood of prejudice to the defendant due to Arnold’s conduct because of the “number of guilty and number of not guilty verdicts.”

Ashworth said, “It got heated in deliberations.  All had a chance to say something.  Heissner walked out of the deliberations at the end of the day.  This does not rise to the level of refusing to deliberate.  He was just frustrated.  They stopped deliberating when he left.  Heissner did return the next day.”

Ashworth said, “The dictionary – this does not rise to the level of misconduct.  The defendant’s cites one case to support his argument.  This case is extremely different.  There is no evidence that the dictionary was actually brought into the room.”

Ashworth admitted that the dictionary should have been brought to the attention of the prosecutor and defense counsel.  However, Ashworth argued that because the dictionary was not actually brought into the jury room, there was no prejudice.

Ashworth defended juror Frey-Keller vigorously.  She heard the doctors’ testimony in the case.  She has knowledge gained through trial. She did have experience regarding domestic violence which came from a family member being the victim of such abuse.  This was stated in her juror questionnaire.  The defense had this information at the time of voir dire, and could have questioned her on the subject, but did not.
Ms. Frey-Keller’s declaration states she has no specialized training on domestic violence because of her job, but that any knowledge she has come from the family incident.

Regarding the exclusion of expert witness Marcel Manley, Ashworth argued that an Evidence Code Section 352 analysis applies. She said, “The court did analyze the issue differently but the judge used the phrases ‘lack of materiality and failure to assist the jury’ as part of his reasons for excluding the evidence. Materiality and assisting the jury are part of the balancing test required by Section 352”.

Evidence Code Section 352 states:

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

Ashworth pointed out that Marcel Manley was an expert regarding writing under duress.  Yet he had found no known sample of Susan Hamlin’s writing allegedly written while not under stress to compare the items he found to be items written under stress.

Ashworth then addressed the issue of the judge’s excluding Susan Hamlin’s prior conviction for child endangerment.

Ashworth said, “This was passive conduct. A 273(a) conviction.  1998 and 1999 were good years in the Hamlin marriage, then it fell apart. You would expect Hamlin to come to Susan’s aide in 1999.  If the conviction occurred during the time he was abusing her, and sided with her he would have something to lord over her, to set up batteries”.

Then Ashworth took on the torture charge. She claimed there was sufficient evidence to support the verdict, including evidence of great bodily injury.

Ashworth said, because the jury voted not guilty or did not find great bodily injury on some charges does not mean they threw out the evidence of the injuries involved in those counts.  “Torture – that makes up everything he did.  Susan Hamlin can’t remember each day of abuse.  It was almost daily abuse.  We showed the DNA to show injury.  There were injuries but sometimes Hamlin didn’t allow Susan to obtain medical help.  Great bodily injury can’t be found to be untrue because Hamlin didn’t allow her to seek medical help”.

Ashworth continued, “There were three months of testimony.  Ribs broken.  We can’t tell the age of the breaks.  There was no medical care until later.  They were broken, then re-broken.  He targeted areas of her body that were already injured.  He broke her nose in the laundry room.  The broken ribs occurred mid-January.  In later December, he broke her ribs.  Evidence showed she had cauliflower ears.  She suffered pain.”

Ashworth sat down.  Essentially, she had argued that Count 1 torture encompassed the dates from June 1, 2003 through February 29, 2004, and any injuries at all during this time period would be sufficient for the jury to find great bodily injury.

Richard Hamlin rose and rebutted Ashworth:

He said if juror misconduct is shown, and we have shown it, then the burden is on the prosecutor to disprove it.  This is common sense. 
Did Heissner bring a dictionary with him and not look at it?  If there is no rebuttal by the prosecutor, jury misconduct is proven.

Hamlin also pointed out that he did not use Susan’s conviction for child endangerment to embarrass her at any time.

Then Banning rose and rebutted Ashworth.  He emphasized said that the jury said Hamlin was not guilty of great bodily injury and that the jury found that great bodily injury was untrue in regard to all the counts, except that of torture.  If the torture charge encompasses a continuum that includes all the other counts, and there is no great bodily injury found in these counts, then there can be no possibility that there is any great bodily injury to support the count of torture.

Banning also addressed the argument that some of the great bodily injury occurred, but Susan was kept from a doctor by Hamlin.  Banning said there is no evidence to support that. There was no testimony at trial to that effect.

The meticulous public defender concluded by stating that the prosecution picked the dates of the charges and can’t take it back now.

At 2:45, the court recessed to allow the court reporter to rest.  At 2:50 p.m., proceedings resumed.

Judge Eddie T. Keller stated he would now make his ruling regarding the motion for new trial.

Judge Keller began with the issue of his refusing to allow the jury to hear evidence of Susan’s prior conviction in 1999 for violation of PC 273(a) child endangerment.  The judge said that this case was not a “conviction”.  It was dismissed after diversion. However, even if it were a conviction, the case People v. Sanders (1992) 10 Ca. App. 4th 1268, controlled.  Susan’s conduct was “passive conduct” unaccompanied by criminal intent, thus was not a crime of “moral turpitude”.  However, even if this evidence should have been admitted, it would be harmless error because it would not make a difference in the result in the case.

Regarding the judge’s exclusion of the testimony of Manley, the court said that he misspoke and said Evidence Code Section 800 when analyzing the matter at trial, but really meant to reference Section 801.  The defense purpose was to introduce Manley as an expert, not as a lay witness.  The code requires that the expert have an opinion related to a subject that is sufficiently beyond common experience and that the opinion of an expert would assist the trier of fact.  There was no denial of due process.  The judge said he gave the basis of his ruling.  His test of the evidence was whether or not it would assist the jury.  In any case, the proposed defense witness Manley said he detected different layers of stress in Susan’s handwriting, but did not say that duress was the cause of stress.  The ruling on Manley in essence was an Evidence Code Section 352 ruling. The judge said, “How tightly the grip is on the pen, the indentation on the paper, the tempo of writing, the narrowness of letters, whether letters are close or far apart --- all of this would cause undue consumption of time and was a distraction to the jury. I reaffirm my ruling”.

Regarding jury misconduct, Judge Keller said he would first look at the admissibility of the evidence pursuant to Evidence Code Section 1150 to exclude beliefs and emotions and include only objective facts.

Evidence Code Section 1150 states, in relevant part:

No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.

Judge Keller then struck from the record some lines from the declaration of jurors Johnson, Vance and Reed as being inadmissible statements regarding “mental processes” pursuant to Section 1150.

Regarding a need for a hearing to obtain testimony of any jury, Judge Keller stated this is “discretionary”.  The defendant must show a strong possibility of prejudicial misconduct.  He stated such hearings discourage jury service. He denied Hamlin such a hearing.

Judge Keller said the standard for jury misconduct was whether or not one or more jurors were influenced.  Policy considerations apply.  He cited Tanner vs. United States (1987) 483 US 107 for the proposition that before a unanimous verdict can be set aside, bias must be substantial.  The jury system tolerates some imperfection, and theoretical perfection cannot be reached. Judge Keller read an excerpt from the Tanner case:

"Let it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something [483 U.S. 107, 120] which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation - to the destruction of all frankness and freedom of discussion and conference." Tanner vs. United States (1987) 483 US 107

Judge Keller said. "In the jury process there is everyday life and experience with its strengths and weaknesses. The weakness must be tolerated. The jury system can’t be completely sterilized. It is difficult to determine the influence and assess the impact of any factor that goes into a jury’s decision and to recreate the entire jury process is an impossible task."

Judge Keller then discussed the conduct of juror Robert Heissner.  Hamlin alleged that Heissner refused to deliberate. The Judge said that there was not enough evidence to show Heissner engaged in prejudicial misconduct.  He left the jury near the end of the day, and the others immediately recessed for the day.  He came back the next day and apologized.

Judge Keller said, “It is normal for a jury to feel frustration during heated deliberations. Ms. Reed and Mr. Johnson say Heissner was rude and intimidating, yet they give no specific time that this occurred. Ms. Johnson says Heissner called her names. He denies this. There was no report of this behavior of Mr. Heissner to the court.”

The judge cited a case in which a juror threatened to kill a hold-out juror, yet the Supreme Court did not find prejudicial misconduct. The court ruled the death threat was a “temporary frustration”.  In another case, a juror gave the foreman a note stating the defendant was innocent. The foreman chastised the juror for ten to fifteen minutes for making this statement. The court held this was no misconduct.

Regarding the conduct of juror Frey-Keeler, the judge found that there was no showing of bias or deceit on her juror questionnaire.  She said she was a floating clerk at Marshall Hospital.  She said her own sister was a victim of domestic violence six years earlier.  This was a red flag for defense counsel to talk to her more.  They did not.  Ms. Frey-Keeler’s comments to the press did not show that she lied or concealed bias.

Regarding the online search by juror Arnold, Judge Keller said it is not true that because the defense has made some showing of prejudicial misconduct, that the prosecutor must rebut it. “Mr. Arnold need not talk.  He supplied no affidavit.  It is undisputed no information from the online search was conveyed to jurors.  There is no affirmative evidence that Arnold himself learned anything from the online search.  There is not substantial showing that there is prejudicial misconduct.  There is only speculation.”

Regarding the dictionary possessed by Juror Heissner, Judge Keller said the use of a dictionary during deliberations is improper. “The state of the record is that Officer Daniels told the juror to not use the dictionary.  Heissner did not use the dictionary or other information from outside.  As to whether it is improper even to request to use a dictionary, that is minor and trifling misconduct”.  Because Heissner merely requested whether he could use a dictionary, and did not, in fact, use it, Judge Keller found his conduct did not rise to the level of prejudicial misconduct.

“Regarding  the dictionary issue, Judge Keller noted the jurors did not look up technical definitions like the definition of murder. "They were interested in great bodily injury. That is defined by the common understanding of persons. It is substantial or significant injury. I can’t give them guidance.”

The Judge dramatically held his own dictionary and opened it – LexLaw 3rd Edition which he used in law school.  He provided the definition of great bodily injury from that dictionary. The judge then gave the definition of great bodily injury from Webster’s dictionary.

The judge cited a case where a juror looked up the word “mitigating” and shared the definition with jurors.  The court in that case said the definition he used could not have misled him.

Judge Keller said, "Regarding Juror’s Arnold’s saying during the first week of the trial that this was a “slam dunk” or “no brainer”, the affidavit of juror Pat Reed regarding this statement does not say when it happened. We do not know if it was a joke or speculation. There is no other evidence about the remark. It is a dangling remark that has no context."

Then the judge looked out over the audience and appeared to spot juror Pat Reed.  He said to her, “You have an interest in having a new trial be granted for Hamlin. You have serious credibility problems.”

The court fell silent as Judge Keller lectured Pat Reed.

The judge said, “Juror Arnold did return seven not guilty verdicts and did not find great bodily injury in all charges but the torture verdict, so it is pure speculation that he showed bias before deliberations commenced.”

"Regarding juror Heissner’s prejudgment of the case, the only evidence of that was provided by Pat Reed who said she overheard jurors John Arnold, Robert Heissner and Karen Lobaugh talking during deliberations whereupon she heard that they thought Hamlin was `scum' and that 'he should get the death penalty."

Judge Keller said, “Pat Reed is the only juror who heard this.  Heissner said the first day of deliberations all said where they stood.  No shrinking violets.  No one held back. Heissner says he reached verdicts after listening to the other jurors.”

“There were 5 Guilty verdicts regarding victim Susan Hamlin, 3 guilty verdicts regarding the children, and 7 not guilty verdicts and no findings of great bodily injury.”  As he said this, the judge looked out at the audience as if he were fixed on a certain person.

Judge Keller said, “This court questions the credibility of Ms. Reed.  As soon as the jury reaches a verdict, the jurors, if polled, state truthfully their verdicts. All the jurors were polled on Count 1, torture.  Guilty was their verdict.  This is a solemn binding oath of truthfulness.  One does not trifle with such a decision.”

“Now Ms. Reed says she felt pressured during deliberations and that a life sentence for Mr. Hamlin is unfair.  But the jurors cannot consider punishment.  Ms. Reed did not say she was pressured when she affirmed her verdict in court.  Her recantation is not to be believed.  It is the same for jurors Vance and Johnson.” 

Judge Keller continued. “Therefore there is not misconduct or prejudice. And there shall be no hearings with witnesses.".

Finally, in this phase of the motions and sentencing hearing, the judge addressed the sufficiency of the evidence to support the verdict of guilty regarding Count 1, torture which carries a life sentence.

Judge Keller said, "In ruling on a motion for a new trial, the court must independently weigh the evidence and make its own determination whether the evidence as a whole is sufficient to sustain a verdict."

Judge Keller voice rose, “The jury found the defendant guilty of 1 count of torture, 3 counts of spousal abuse and 1 threat to Susan Hamlin.”

Judge Keller turned to the defendant and blasted him, “You are a spousal abuser, Mr. Hamlin!”

Judge Keller recounted which counts applied to which incidents:

The Superbowl incident – count 9 – spousal abuse

The Roseville incident and laundry room incident – count 17 – spousal abuse

Judge Keller stated, “I find that the verdict is amply supported by the evidence that from June 1, 2003 through February 28, 2004 the defendant committed the crime of torture. This court believes Susan Hamlin.”

“The defendant had an abnormal obsession with Sidney Siemer which included the issue of molestation and that he engaged in a remarkable and detailed plot to obtain money in a lawsuit against Sidney Siemer.”

“There were photographs of Susan Hamlin’s injuries which constitute great bodily injury.  She had fractured ribs, a broken nose and bruises and injuries all over her body.”

The Judge turned to Hamlin again and said, “For some reason, you made tapes of sessions with her.  You made threats to kill her and assaulted her and used coercive tactics to get information from her.”

“Your three children testified regarding Hamlin’s abuse of Susan and the Roseville trip and laundry room incident.”

“There was DNA evidence, medical evidence, expert evidence.  Some police observed Susan’s injuries.  She tried to escape.  A domestic violence expert testified.”

“Although the jury found no great bodily injury in the its guilty verdicts except in regard to torture, I make an independent finding on Count 1.”

Judge Keller cited cases where bone fractures, soft tissue injures and post traumatic pain were held to constitute great bodily injury.

“The jury made finding that there was no great bodily injury as to all counts except torture, however I make an independent finding that Susan Hamlin could not date the injuries and there was conflicting evidence as to when they occurred.  The jury gave the defendant the benefit of the doubt re particular dates of injuries.  Regarding Count 1, the torture during an 9 month period was continual.  I find all injuries as a matter of law were great bodily injury and that there is sufficient credible evidence to sustain the torture charges.  The motion for new trial is denied”.

The court recessed for another five minute period to allow the court reporter to rest.

When the court reconvened, Judge Keller considered the defense motion that a life sentence for torture constituted cruel and unusual punishment in violation of the 8th Amendment to the Constitution.  Judge Keller found it is not cruel and unusual.  The Judge then denied the defendant’s motion to dismiss all charges.

Finally, the sentencing phrase began. The judge pronounced that the probation report was received and read.  Susan Hamlin and her four children gave witness impact statements.

Finally, Judge Keller imposed sentence, calling Hamlin’s conduct “pure evil”.   He imposed a life sentence for Count 1 torture and stayed all other sentences except that he imposed 6 months for each misdemeanor count of child endangerment regarding three of Hamlin’s children to be imposed consecutively.  Restitution to the victim’s restitution fund of $16,193 is to be paid.  A restraining order of no contact was imposed regarding Hamlin’s future interactions with Susan and their four children.  Hamlin received credit for 1,086 days time served in county jail. Ordinarily, Hamlin would be eligible for parole in 7 years minus time served in El Dorado County jail which is double time.  However, 18 months will be deducted from his 1,086 days served in county jail because these misdemeanor offenses are considered to have been already served in county jail by Hamlin and double time does not apply to them.  Therefore, Hamlin loses some of his good time credit -- double
time -- for county jail time served.   According to Hamlin, he will be eligible to apply for parole in 5 to 5 ½ years from the date of his sentence.  On October 30, 2006, Judge Keller will hear defense motions regarding restitution, the restraining order, and credit for time served.  Until that time Richard Hamlin will remain in the El Dorado County Jail.

By Kathryn Joanne Dixon © 10/8/06

Footnote: 1: Evidence Code section 1150, subdivision (as) states:

Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined. (Emphasis added.).

People v. Hutchinson (1969) 71 Ca. 2d. 342. The court explained the purposes behind Evidence Code Section 1150, subdivision (a):

“This limitation prevents one juror from upsetting a verdict of the whole jury by impugning h is own or his fellow jurors’ mental processes or reasons for assent or dissent. The only improper influences that may be proved under section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and are thus subject to corroboration… Admission of juror’s affidavits within the limits set by section 1150 protects the stability of verdicts… ( Id. At p. 350.)  Back to text