The fifth and last day of hardship jury selection was completed today

The fifth and last day of hardship jury selection was completed today. Two additional panels of 75 jurors each were brought into court this morning and afternoon.

Of the 150 prospective jurors met today, 111 were excused due to hardship and 39 were passed for hardship and filled out questionnaires. Those 39 jurors were given dates to return for general questioning starting on September 8, 2009.

The total numbers for the five days of hardship jury selection are: 750 total jurors examined; 510 of those jurors were excused for hardship and 240 jurors were passed for hardship and will return for questioning at a later date in September. This now completes the first phase of jury selection. The court wanted approximately 225 jurors to make it through this phase and we easily exceeded that number.

The next phase of jury selection starts on Tuesday, September 7, 2009 with questioning of the individual jurors who passed for hardship. This process starts on Tuesday and will be conducted through October 7, 2009. We are still very much on pace for the opening statements on October 13, 2009.

The trial resumes tomorrow morning, Thursday, September 3, 2009 at 10:00 with a hearing on the defense motion to dismiss all of the jurors that were selected over the course of the last five days on the basis that the system used by the San Mateo Superior Court is flawed in that it failed to call an adequate percentage of African-American jurors into the prospective juror pool (the 750 jurors called into the courtroom). We will present the testimony of the Superior Court jury commissioner who will testify how prospective jurors are called and how the court computer system does so randomly.

We will also discuss further the jury selection questions to be posed to prospective jurors next Tuesday and the ensuing days of jury selection. I believe the trial will be in recess Thursday afternoon and on Friday.

Fourth Day of Juror Selection

We completed the fourth day of jury selection today and another 148 prospective jurors were brought into court and asked about sitting on this three months trial.

Of the 148 prospective jurors, 99 were excused due to hardship and 49 were passed for hardship and filled out questionnaires. Those 49 jurors were given dates to return for general questioning starting on September 8, 2009.

The total numbers for the four days of hardship jury selection are: 600 total jurors examined; 399 of those jurors were excused for hardship and 201 jurors were passed for hardship and will return for questioning at a later date in September.

It appears we will complete hardship inquiry tomorrow (Wednesday) with the final panels of 75 jurors in the morning and 75 jurors in the afternoon.

Third Day of Jury Selection

The third day of jury selection was completed today. Hardship inquiry was conducted on another 150 jurors (75 in the morning and 75 in the afternoon). We heard the usual hardship excuses from the prospective jurors. The primary excuses accepted by the court are 1) financial hardship (the tough economic times come through loud and clear with these jurors), 2) language problems, 3) pre-paid vacations, 4) child care and 5) full time students in school.

104 individuals were excused due to hardship and 46 filled out a questionnaire and moved on to the next stage of jury selection.

The totals now after three days of hardship jury selection are 450 total jurors interviewed and 152 prospective jurors have been passed for hardship and moved to the next stage. That is a 34% passage rate and that is higher than we thought we would get for this long trial.

Jury selection resumes Tuesday morning with another day of hardship inquiry on another 150 prospective jurors. The court plans on getting approximately 220 jurors through this stage.

Everything proceeds as expected.

Trial will Resume on Monday -100 Jurors pass the Hardsahip test

A brief trial update today. The second day of jury selection was completed and hardship inquiry was conducted on another 150 jurors. 41 of the 150 jurors were passed for hardship and move on to the next stage of general juror questioning.

The two day total is 300 jurors questioned and 100 of them remain in play for the next phase of jury selection. That is a pretty high passage rate (33%) for a case where we are asking them to be available from October through December.

The trial is in recess Friday and will resume on Monday morning. Another 150 new jurors will be brought in on Monday for hardship inquiry.

First Day of Jury Selection - Rich May Murder Trial

Wednesday - Auguest 26, 2009

The first day of jury selection was conducted and 152 prospective jurors were brought into court (67 in the morning and 85 in the afternoon). The jurors were silent when Judge Parsons advised them that this was a murder trial involving the killing of a police officer but there was an audible and loud gasp/groan when they were advised the trial could last until mid-December.

The jurors were told to fill out a hardship form if they were requesting an excuse from the case due to hardship (financial, educational, medical, etc.). 58 of the 152 jurors were passed for hardship and filled out questionnaires (that is a high rate for a trial that could last to mid-December).
The trial resumes Thursday morning at 9:00 with hardship inquiry on two more panels of 75 jurors.

Murder Trial Finally Started - With Motions

The judge recovered and we were back in court today. Several motions were discussed and refined the jury selection process that starts tomorrow morning. Here is what occurred today.

Jury selection starts tomorrow morning, Wednesday, August 26, 2009 at 9:00. The first six days of jury selection will be spent on hardship inquiry: questioning jurors whether they have a hardship in sitting as a juror for a three month trial. These six days are August 25, 27, 31, September 1, 2 and 3. 900 jurors will be brought in for hardship inquiry. 150 jurors a day (75 in morning and 75 in afternoon) for the six days.

-The jurors will be advised that they will be needed for questioning for one day in September and if selected on the jury, they will need to be available from October 12, 2009 to approximately December 16, 2009. They will then be asked if they have a hardship which means financial hardship, school hardship, health hardship or language hardship that precludes them sitting on this jury. The court will discuss the hardship claims with the attorneys and rule whether to excuse the individual jurors requesting to be excused.

-Jurors who do not claim a hardship will then be asked to fill out a juror questionnaire (15 pages long with loads of questions about the juror and the juror's attitudes or topics like the death penalty, crime, police, etc.) Those jurors will then be given a day to return in September for individual questioning on their ability to be fair and impartial in this case.

-Individual questioning of the jurors who clear hardship will start on Tuesday, September 8, 2009 and will be conducted for the remainder of the month and perhaps the first week of October(Monday through Thursday; Fridays the trial is not in session). The court granted the defense attorneys' request for the trial to be in recess on Monday, September 28, 2009 (Yom Kippur).

-The jurors will come in groups of eight in the morning and eight in the afternoon and we will question the jurors on the specific topics of death penalty, gangs, pretrial publicity (knowledge of the case), police officer-victim and race. This questioning is to see if the jurors can be fair and impartial in hearing our case. It is a lengthy and tedious process but the goal is to get fair jurors.

-The court decided there will be five alternate jurors for our trial.

-As note above, the court set the tentative date for the opening statements for October 12, 2009 followed immediately the same day with the start of the prosecution evidence. The December 16, 2009 finish date is a broad guess and it is just to give the jurors a tentative outside date for completion of the case; it might go much quicker once we get going.

-The court denied the defense motion for a lengthy statement to the prospective jurors from the judge about the history of the death penalty in California and what the death penalty and life without parole mean today.

-Without prosecution objection, the court granted the defense request for 48 hour advance notice to the other side when one attorney is calling an expert witness (for planning purposes).

Judge was Sick - Delayed until Tuesday

An update from our first day back in court after the five months delay. Holding true to form (that something always seems to be impeding our progress to justice in this case), at 8:30 this morning our trial judge, Judge Craig Parsons, called in sick with the flu. He told his court clerk that he had been up all night and simply could not come in today. He is hoping it is just the 24 hour flu and expects that he will be back in court Tuesday morning.

So our case was called in the courtroom of the presiding judge, Judge Stephen Hall, who simply continued the case for one day. Assuming Judge Parsons is healthy tomorrow, we will resume Tuesday morning and start jury selection Wednesday morning at 9:00.

MURDER TRAIL WILL RESTART AUGUST 24

Hello all. Thank you for the many emails. A brief note...

The trial is currently scheduled to start in two weeks - assuming that no filings occur which will create another delay.

The Jury Selection process should start later in the week of August 24.

It is expected that opening statements and testimony from witnesses will begin at the end of September or more likely the first week of October.

The Defense is bringing a post-traumatic stress disorder claim along with a self-defense claim.

You can expect that Assistant District Attorney Steve Wagstaffe will bring a strong case against both of these claims.

Rich's Father...

Memorial Day - 2009

Rich:

We remember your life and service to the communities where you worked - every day. Today, we remember all the heroes who gave their lives in the line of duty.

Always,

Your Family

Tuesday, March 24

Officer Richard May's Murder Trial is delayed for five months - until August 24th.

We commend Judge Parsons and the Chief Deputy District Attorney Steven Wagstaffe for their work

Mr. Wagstaffe asked Judge Parsons to continue with the start of jury selection on Monday, stating that they could re-visit the issue murder of the Oakland officers if it appears it is too difficult to get impartial jurors. We appreciate Mr. Wagstaffe asking to get a trail started three plus years after the murder of Officer May. At the same time, we understand Judge Parsons decision to delay.

The key to the delay was not the fact of the murder of the Oakland officers - but the similarities. In both murders, the shooter was on parole and in possession of a handgun. If found, the parolee would return immediately to jail. The knowledge of this fact could be the reason for both murders.

Thank you to all the people in the San Mateo District Attorney's office for their investigative work to date.

And again, our most sincere condolences to the families and the department in Oakland.

Monday, March 23

TRIAL IS DELAYED UNTIL AUGUST 24. Jury selection will restart on that date.

The change of date is, naturally, because of the death of four Oakland police officers.

Judge Parsons stated he regretfully had concluded that the highly publicized Oakland murders required that the trial be delayed for several months. He ruled that a brief continuance of a month or two would not work because to try to get a jury of twelve people and four alternate jurors who could give up their entire summer would be an impossible task.

Judge Parsons granted the defense motion to continue and reset the start of the trial to August 24, 2009 9:00 and jury selection will start on that day. The three weeks of motions we just completed do not have to be repeated since Judge Parsons will remain the judge on the case.

We send our sympathies to the Oakland officer families and the department, and the citizens of Oakland, California - and to all police officers ever where who risk their lives every hour of the day so the rest of us can live peacefully.

Rick May

Sunday, March 22

It is time to pause and remember four young and brave Oakland Police Officers, their families, and their fellow officers at the department.

Thursday, Friday March 19/20

No Trail on Thursday and Friday. Jury Selection Starts next week.

During this pause in the trial, you can wander through pictures of Rich when he was young. http://www.officerricardmay.org/

Wednesday, March 18

The hearing on motions was completed today with the exception of a couple of motions the court deferred until later. Trial is in recess until Monday when jury selection starts. Here are
today's results (nothing major today).

(1) The court granted the prosecution motion to allow family members to be present in chambers during the review of juror requests to be excused from jury duty due to hardship; the court had previously decided that review of hardship requests of jurors will be conducted in the judge’s chambers.

(2) The court approved the final draft of the juror questionnaire; it is 27 pages in length.

(3) The court approved the combined prosecution and defense potential witness list of 181 witnesses (to show to the jurors to see if they know anyone).

(4) The court granted over defense objection the prosecution proposed admonition to prospective jurors to not approach or consider the Peace Officer Memorial on the first floor of the building (the defense motion to remove the Memorial or Officer May’s name from the Memorial had previously been denied). The court did change his prior ruling and decided to have the Sheriff’s Office cover the words “in the Line Of Duty” at the top of the Memorial in case a juror approached the and read the Memorial.

(5) The court heard arguments on the defense renewed motion for discovery and the court decided to defer the hearing on this motion to April 3, 2009 10:30.

(6) The trial is in recess the remainder of the week and will resume on Monday, March 23, 2009 9:30 with the start of jury selection. The first two weeks will be spent asking jurors whether they can sit for the duration of this trial which is estimated to last all of May and
June and perhaps (hopefully not) into early July. 840 jurors will be questioned about hardship. Regular questioning will start on April 6.

Tuesday, March 17

Another day in the courtroom completed. The court ruled on six motions today. Here are the results:

(1) The court granted the prosecution motion to admit evidence of the defendant's fleeing the crime scene and hiding after the crime, as evidence of the defendant's consciousness of guilt for the crime.

(2) The court denied the defense motion to exclude evidence of the police manhunt after the murder and evidence of the defendant’s being found on the back floorboard of a car trying to escape the police perimeter. Defense argued the evidence was irrelevant and the court
rejected the argument.

(3) The court denied the prosecution Evidence Code section 1101(B) motion to rule admissible, during the guilt phase of the trial, evidence of four prior incidents involving chases of the defendant by the police or the defendant being caught in possession of a handgun. The court agreed with the prosecution that the four incidents may still be considered by the jury during the penalty phase. The court will rule on that after the guilt phase is completed.

(4) The court granted the motion of the Sheriff's Office to have the defendant, for security purposes, wear a locked leg restraint device. The device locks in place when the defendant stands up, precluding him from running. The court rejected the defense argument
that such a leg restraint was unnecessary.

(5) The defense motion to have the penalty phase motions (on the admissibility of penalty phase witnesses and evidence) heard prior to the start of jury selection was opposed by the prosecution and denied by the court (the motions will be heard after the guilt phase if there is to be a penalty phase).

(6) The prosecution motion to preclude death penalty questions to jurors about specific facts of the case and the jurors’ views of those facts was granted. The court agreed that such questions would be asking the jurors to prejudge the case and the court ruled that the
questions must be generic, not specific to feelings or conclusions about our case.

(7) The court deferred the defense Brady discovery motion for EPAPD personnel records until Wednesday morning.

(8) At defense request, the court deferred the prosecution motion to limit defense psychiatric testimony and the prosecution motion to allow prosecution questioning of the defense psychiatrists about the defendant’s gang involvement until April 10, 2009. The defense needs more time to respond to the prosecution written motions.

This was another good day for the District attorney's office (Steve Wagstaffe). They have a couple of motions in the morning and will finalize the jury questionnaire tomorrow.

Jury selection starts on Monday morning with a couple weeks of hardship inquiry (asking the jurors whether they can sit for a trial of this length). The jurors will be told that the trial will formally start in early May and could run as long as to mid-July. 840 jurors will be brought in the next two weeks to be questioned about hardship and their availability for a 2-1/2 months long trial.

Monday, March 16

The court ruled on three motions today.

(1) Parole Status: In the morning the court heard extensive
argument on the prosecution motion to admit evidence of the
defendant’s parole status at the time of the crime to show motive,
intent and premeditation and deliberation. Over strenuous defense
objection, the court granted the prosecution motion to admit the
evidence, including the nature of the two felony convictions for which
he was sentenced to state prison (possession of a firearm and possession
of marijuana for sale), the fact that he served a state prison sentence,
the fact that he had a duty to submit to search and seizure and to a
detention as a parolee, the fact that he had a prior parole violation in
2005 and was incarcerated for the violation, and the fact that he knew
the carrying of a handgun would be a parole violation and send him back
to prison.

(2) Sanitizing Motion: The court denied the defense motion to
sanitize Count II 12021(A)(1) possession of a firearm by a felon to not
let jury hear what are his prior felony convictions. The court will
allow the prosecution to present evidence to the jury that his two prior
felony convictions are for (1) possession of a firearm and (2)
possession of marijuana for purposes of sale.

(3) Gang Membership Evidence: In the afternoon after hearing
extensive arguments from the attorneys, the court denied the prosecution
motion to admit evidence of the defendant’s gang membership to show a
secondary motive for the crime (kill a police officer and move to the
top of the gang in importance). The court excluded the gang evidence
during the prosecution case in chief. The second part of the
prosecution motion on gang evidence (to allow the prosecutor to
cross-examine the defense psychiatrists on the defendant's gang
membership and to offer the gang evidence in the prosecution rebuttal
case was deferred by the court until Wednesday). On Wednesday the court
will deal with prosecution motions to limit the defense psychiatric
testimony and allow cross-examination of the defense doctors on gang
membership.

Friday, March 13

No court today for the Murder Trial of East Palo Alto Officer Richard May, Jr.

Thursday, March 12:

The court ruled on three motions:

(1) Over DA objection, the court ruled admissible a 2004 incident in which Officer May was alleged to have punched and maced an arrested suspect improperly.

(2) The court also granted over DA objection the defense motion to admit a 2005 incident in which Officer May allegedly struck a suspect during an arrest with his gun.

(3) Over defense objection, the court granted the prosecution motion to exclude evidence of an argument with Officer May's ex-wife.

The trial is in recess Friday and will resume on Monday morning at 9:00 with further hearing on the trial motions. Two important motions will be heard Monday: (1) DA motion to admit evidence of the fact the defendant was on parole at the time of the murder, as motive for the shooting; and (2) DA motion to admit evidence of gang membership and the gang expert on the defendant's involvement in the Sacramento Street gang.

Jury selection remains set to start on March 23, 2009.

Wednesday, March 11

Judge Parsons heard legal arguments from the attorneys and ruled on three motions today:

(1) The court granted the prosecution motion to exclude conclusionary statements of the prosecution witness next door to the scene of the shooting, about watching the defendant at the time of the shooting (after Officer May had been initially shot and fallen to the ground). The excluded statements were:

(A) He was right at the garage door. Like he was trying to, you know, figure out a way, figure out a way how to get out of there. And I was like, “Damn, somebody’s shooting at him.”
(B) I was like, damn, somebody’s shooting at him.
(C) I was like, oh, somebody must be shooting at him, seen him turn around like he was trying to defend himself… he looked like, either he was looking for a place to run but he wouldn’t have ran that way.
(D) I thought somebody was shooting at him.

(2) The court granted the defense motion to preclude witness Marco Marquez (the explorer) from using the word “jaywalking” to describe how the defendant ran across University Avenue away from Officer May and Mr. Marquez. Mr. Marquez can simply describe the manner in which he ran across the street.

(3) The court denied the prosecution motion to have the mannequin dressed in a similar police uniform for demonstrative purposes with the pathologist. The prosecution can use Officer May’s actual blood soaked uniform with the pathologist (just not on the mannequin). The prosecution is allowed to use a mannequin with the pathologist; just not a clothed mannequin.

Trial resumes Thursday morning at 9:30 with further hearing on the trial motions. The motions for Thursday involve defense motions to admit evidence of alleged prior use of excessive force by Officer May (couple of citizens who complained about two incidents of prior force). Prosecution has filed opposition to the defense motions.

Tuesday, March 10

Judge Parsons heard arguments and ruled on five motions today.

1) The court denied the defense motion to remove Officer Rich May's name from the San Mateo County Peace Officer Memorial. The defense claimed jurors would be prejudiced by seeing the name on the Memorial and the words at the top of the Memorial "Killed In The Line Of Duty". Court accepted prosecution argument that the jurors could be instructed to stay away from the Memorial. Prosecution argued it was an insult to Officer May's memory to suggest the removal of his name from the Memorial.

2) The court granted the defense motion to prohibit spectators from wearing at the courthouse the badges with Officer May's face as potentially inflammatory to prospective jurors. The court took the cautious route and disallowed the badges. This applies only on days the jury is present. On other days spectators may wear the badges.

3) The court denied the defense motion to prohibit uniformed police officers to be in the courtroom during the trial (defense claimed it would be unduly prejudicial). Following a California Supreme Court case, Judge Parsons did restrict the uniformed officers present to three at a time. Officers not in uniform have an absolute right to be present in unlimited numbers. The limit of three does not include the bailiff or the two transportation deputy sheriff's that are always present.

4) The court denied the defense motion to prohibit the prosecutor in opening statement from using the phrase "execution" in describing the murder. In closing argument, the prosecution (Steve Wagstaffe) can use whatever phrase Mr. Wagstaffe desires. In opening statement Mr. Wagstaffe can say the defendant "executed" Rich (just not "execution-style"). Witnesses are directed not to use word "execution".

5) The court denied the defense motion to make the prosecutor set forth all legal and factual theories of the case. Prosecutor is not required to reveal his approach to the case.

None of these motions today was critical to the outcome. Steve Wagstaffe is generally satisfied with Judge Parsons' rulings today.

Three motions will be argued Wednesday. More significant motions start on Thursday. Jury selection still set to start on Monday, March 23, 2009.

Monday, March 9

Today in the morning session the court ruled on the admissibility of crime scene and autopsy photos. Photos are always a part of a trial and the Judge ruled on the amount and type of photos he will allow. In the afternoon session the court dealt with scheduling issues for the remainder of the motions. This allows the court and the attorneys to be better prepared to argue the motions.

In a previous session:
Mannequin allowed; no photo of Rich alive til penalty phase; family members entitled to be present all of trial; jury procedures approved.