Acquittal Increase Blamed on Prop. 115 : Courts: Prosecutors cite a change in state law that requires judges rather than attorneys to question prospective jurors.

A change in state law that requires judges rather than attorneys to question prospective jurors may be the cause of a significant increase in acquittals and hung juries in Ventura County, prosecutors say.

But the judge presiding over Ventura County Superior Court’s criminal department disputed that assertion, saying prosecutors should take a closer look at the merits of their cases before faulting judges.

The controversy was sparked by a memo from Chief Deputy Dist. Atty. Vincent J. O’Neill Jr. to Superior Court judges last week that notes an “alarming” increase in acquittals and hung juries since the judges took over the questioning of jurors. It also breaks down the rate of acquittals and hung juries for each judge.

Of 16 cases heard by Judge Charles R. McGrath since passage of the measure last June, seven have ended in acquittal and one in a hung jury. In the two years before the measure was approved, 89% of McGrath’s cases resulted in guilty verdicts, according to the memo.

“This is not meant to be a criticism of judges,” said Assistant Chief Deputy Dist. Atty. Kevin J. McGee. “It’s meant to call the court’s attention to a disturbing trend.”

But Lawrence Storch, the presiding judge of the court’s criminal department, said Proposition 115’s jury-selection procedures have nothing to do with prosecutors’ failure to get more convictions.

“To say these statistics have anything to do with Proposition 115 is silly,” Storch said Wednesday. “They are losing cases because they have filed a series of cases that were extremely difficult to win. They win the cases they deserve to win and lose the ones they don’t deserve to win, and 115 has nothing to do with it.”

Judge Steven Z. Perren agreed that the statistics are open to interpretation. Like Storch, Perren said the strength of a criminal case, not the makeup of the jury, is usually the most significant factor in a trial’s outcome.

“The people of this community are not fools,” Perren said. “I think people consider cases and decide them on their merits.”

Proposition 115--which promised to speed up the criminal trial process--was billed as the Victims’ Rights Initiative and was strongly supported by the state’s district attorneys, including Ventura County Dist. Atty. Michael D. Bradbury.

Among other changes, the measure adopted the federal court system’s method of jury selection. The rule gives judges the duty of questioning prospective jurors to uncover biases, a task formerly performed by attorneys. In a theft case, for example, a storekeeper who encounters many shoplifters might be excluded.

Attorneys can suggest questions and still use peremptory challenges to remove prospective jurors without cause.

McGee said some judges are not practiced at questioning jurors and tend to minimize the importance of close questioning to uncover bias.

“Some judges are of the opinion that the first 12 are likely to be as good as the next 12, so why waste time?” he said.

Ventura County Public Defender Kenneth I. Clayman said it is too early to attribute the increase in acquittals and hung juries to 115.

“However,” said Clayman, a Proposition 115 opponent, “if the D.A.s are worried about it, they ought to think more carefully about the initiatives they draft before foisting them on the public.”

In selling the measure, prosecutors “said defense attorneys were delaying everything,” Clayman said. “I think the judges have always felt that way. . . . This is a dream for them.”

McGee said the intent of the memo to judges “was not so much ‘Get your act together’ but ‘Hey, did you guys know this?’ We’re just calling the court’s attention to it. Obviously there are some disturbing tendencies here.”

If the trend continues, he said, the district attorney’s office may propose a meeting of judges, defense attorneys and prosecutors to work out better procedures for jury selection.

The memo gives figures for other judges besides McGrath in the Superior Court’s criminal department.

In Storch’s court, eight of 27 cases, or about 30%, resulted in acquittal or a hung jury in the eight months after the passage of Proposition 115. In the two years prior, about 19% of his cases ended in acquittal or a hung jury.

Perren heard 11 cases in the post-Proposition 115 period cited in the memo, and three of them, or 27%, resulted in something other than a guilty verdict. In the two years before the measure passed, even more of his cases, about 30%, ended in acquittal or a hung jury.

Judge Frederick A. Jones heard 19 cases in the period measured since passage of the initiative, and eight, or 42%, resulted in not-guilty verdicts or hung juries. Before the change, about 14% of his cases had that result, according to the memo.

McGrath and Jones declined to comment on the memo.