View full sizeDavid French, who prefers to be called Z, took the stand Tuesday to say roommate Frank Johnson was the one who was in a murderous rage on May 4, 2007, which is the day he died.A Multnomah County judge has ordered KPTV-FOX 12 to defend itself against a contempt of court accusation in the trial of a defendant accused of murdering a North Portland man with a pickax.
Tuesday, defendant David Wayne French took the stand. Video aired by the TV station of that testimony showed the profile of one of the jurors and the back of the head and glasses of another juror. Judge Michael Marcus previously instructed all media not to capture any images of jurors, as outlined in Uniform Trial Court Rule 3.180 about cameras in the courtroom.
Defense attorney Scott Sharp said he saw the video, and asked the judge to dismiss the juror whose profile was shown. Prosecutor Kirsten Snowden also asked the judge to dismiss the second juror because she might also be recognized by those who know her or the wider public.
The judge dismissed both jurors, saying it's possible that they could feel pressure to decide the case in a certain way knowing that their peers or the wider public were aware they were on the jury.
That leaves 12 people on the jury. Originally, 14 jurors were seated. The judge planned to randomly dismiss two of the jurors before deliberations begin. Courts often seat more jurors than necessary in case some don't show up or it becomes apparent that other conflicts have arisen.
"It's no fault whatsoever of yours," the judge said. "What happened was Channel 12, the person operating the video, in their enthusiasm to photograph the defendant while testifying, caught glimpses of you."
It's unclear what the penalty would be for contempt of court, but it could involve a fine.
5:44 p.m. UPDATE: Multnomah County Circuit Judge Michael Marcus said he won't pursue a contempt of court charge against KPTV-FOX 12 for airing video of two jurors.
Marcus said he spoke with the reporter who recorded the video and a manager from the station, who were apologetic.
"We apologized to the court," said Patrick McCreery, vice president and general manager. "...It was an error, and we regret the error."
Marcus said he explained the implications of recording jurors to FOX 12 -- including that it could have caused a mistrial if there hadn't been 12 jurors left after dismissing the two who were aired on TV.
The judge said if a mistrial had occurred, that could have jeopardized the state's ability to ever prosecute David Wayne French -- because French could have successfully argued the additional delay was a speedy trial violation and the murder case should be thrown out.
Nearly four years have passed since the death of French's roommate. Some of those delays have been attributable to French, and others to the state.
