This opinion is difficult to get through. Not merely because of its length. It recounts a brutal -- truly brutal -- series of crimes. Profoundly disturbing.
I'll skip over the overwhelming majority of the stuff. Though I'll mention briefly that I'm not too psyched about the prosecution's closing argument, and the California Supreme Court's theory that one can meaningfully distinguish between impermissible references to the Bible in a death penalty case versus permissible references (e.g., that Moses says it's okay) seems pretty weak to me.
I'll directly mention only something that appears on page 223 (!) of the opinion. Chief Justice Cantil-Sakauye says that when the judge -- after the jury said it was deadlocked -- twice told the bailiff to inspect the jury deliberation room, and the bailiff reported that all the guilt phase exhibits remained in the file drawers (i.e., hadn't been reviewed by the jury), at which point the trial judge responded to this report by giving a supplemental instruction to the jury, that process did not "intrude upon the jurors' mental processes."
I'm not sure how someone can credibly say this. Of course it intruded upon the jurors' mental processes. The bailiff was specifically reporting on what the jurors were looking at. S/he wasn't just making sure that the jury had enough food or was keeping the place clean. Similarly, the trial judge clearly cared what evidence the jury was inspecting.
The only way to intrude more on the jury's thought processes would be to directly eavesdrop on them. Of course that's what you're doing. To say otherwise is, in my view, simply not credible.
Maybe the judge doing so didn't matter. That might well be a plausible holding. But to say that it's okay to take a look at what exhibits the jury's viewing in its deliberations seems silly. On that theory, it's presumably okay to contemporaneously videotape the jury's deliberations as well, as long as you keep the playback on mute. No way.
The trial judge thought the jury was confused. Neither the judge nor the bailiff should have invaded the jury room. But they did, albeit in good faith. That invasion might not have made a difference. But an invasion it was.
That's what pages 223-224 of the opinion should have said.
