California v. WismerAnnotate this Case
In this case, defendant John Wismer was accused of sexual molestation by the nine- and 13-year-old daughters of Wismer's friend and business associate, Richard S. The physical evidence was inconclusive; the prosecution's case turned largely on the credibility of the two girls and, to a certain extent, their parents. The primary incident, involving the younger of the two girls, allegedly took place on an evening in late November. Roughly a week later, police arranged for Richard to make a recorded pretext call to Wismer in which he confronted Wismer with his daughter's allegations. Although the pretext call failed to elicit any admissions from Wismer, jurors nonetheless focused on the call during their deliberations, listening to it three times and discussing whether Wismer's reaction to the call was consistent or inconsistent with guilt. One of the jurors (of Asian descent) took it upon herself to conduct what she characterized as an "experiment" illustrating for her colleagues how a truly innocent person would respond to a fabricated allegation. Using racially charged language, she falsely accused a male Hispanic juror of slapping her behind, punctuating the accusation by claiming he said "he wanted to put his Mexican burrito in my chicken fried rice." The Asian juror's false accusation and the Hispanic juror's reaction were not part of the evidence in the case, yet they were presented to and considered by the jury in reaching a verdict. The Court of Appeal concluded that was juror misconduct of a fundamental nature that required reversal of the judgment.