The holdout

At this moment, Elijah Johnson’s future is to die behind bars for three murders the 24-year-old didn’t directly commit. That is not in dispute.

On January 4, Johnson was sentenced to multiple lifetimes in prison, along with David Thuan Nguyen, a 27-year-old marijuana dealer who actually pulled the trigger on a father and his two adult sons during an April 2016 home invasion that Nguyen orchestrated.

Johnson’s fate was almost different.

According to court transcripts, one juror refused to send Johnson to prison for the slayings. Identified as Juror 1, the woman told the court she was being pressured by her peers to vote against her conscience.

The juror’s comments surfaced during a behind-the-scenes inquiry into whether she was following the judge’s instructions. How the matter was settled ensured Johnson’s guilty verdict—and may become part of an appeal under a new state law that limits who can be convicted of murder.

The jury misconduct inquiry was sparked by two jurors who accused Juror 1 of disobeying the judge’s instructions to consider only the facts of the crime, not the possibility of a lifelong sentence.

Juror 1 countered that four jurors discussed aspects of the case outside the full panel’s presence, also against the judge’s instructions.

In October, Sacramento Superior Court Judge Maryanne G. Gilliard called jurors into her courtroom to sort out the dispute. Gilliard told each juror to answer only the questions she posed so she could avoid interfering with their deliberations. Jurors occasionally slipped, revealing a majority leaning toward guilt following a grueling trial and lengthy deliberations.

During her time on the witness stand, an emotional Juror 1 told the judge that she grew up like Johnson, who was abandoned when he was young and intercepted late by foster care.

“I stated that he shouldn’t go [away] for the rest of his life for not murdering somebody he didn’t murder,” she said, according to the transcript. “One of them is guilty of something, but not the other one. I did say that. But I never said nothin’ about laws being changed.”

Juror 1 denied having a problem with the judge’s instructions, but asked to be released for a scheduled vacation early, she said, “because once … I’m back in that room, they’re just going to keep pressuring and pressuring me. And I might just go—just go to go along.”

Defense attorneys pressed for a mistrial. Instead, Judge Gilliard replaced the holdout juror with an alternate, but let the others stay, even though she determined they violated her instructions and vented about the stress of the case outside the full jury. Days later, Nguyen and Johnson were found guilty of the murders.

Gilliard defended her decision before sentencing the men on January 4, in carefully worded remarks she anticipated an appeals court would review.

“Was there juror misconduct? Yes. There was juror misconduct,” the judge said. But, she added, “It did not rise to the level that either defendant incurred any type of prejudice such as would require a new trial.”

Juror 1, on the other hand, Gilliard said, claimed she told a bailiff something none of the bailiffs could remember—that she recognized one of the people who attended the trial.

“At that point I was faced with eight or nine jurors and an alternate that were all saying basically the same thing and Juror No. 1 who was shown to have demonstrably engaged in a falsehood with the court,” Gilliard said.

The defendants’ attorneys quietly accepted the denial of their fourth motion for a new trial, but indicated they would appeal.

“You don’t have to be in Mr. Johnson’s presence long to realize he’s not Dillinger,” attorney Olaf Hedberg told SN&R following his client’s sentencing. If the public could take anything away from this case, Hedberg added, “Please take a moment and think twice about foster children. Because it’s a tough and lonely life when you’re abandoned at 11 and have to make your way in the world.”

Hedberg filed his notice of appeal on January 11.

Johnson, who took part in the robbery, was convicted even though Gilliard instructed the jury to consider a pending state law restricting who can be convicted of murder.

Before January 1, people could be charged with first-degree murder if they participated in any aspect of certain felonies that resulted in death, even if they didn’t kill anyone. The justification for California’s long-standing felony murder rule was that people involved in serious crimes should know that the loss of life is a likely outcome, and are therefore just as culpable as those who pull the trigger or draw the blade.

But critics found the rule too broad, applied to defendants who were caught by surprise when violence erupted.

“California’s murder statute irrationally treated people who did not commit murder the same as those who did,” state Senator Nancy Skinner, the Berkeley Democrat who authored Senate Bill 1437, said in a statement following its signing. “SB 1437 makes clear there is a distinction, reserving the harshest punishment to those who directly participate in the death.”

Juror 1 was leaning toward that interpretation before she was replaced.

For Jamilia Land, who took Johnson into her home seven years ago and came to think of him as a son, Juror 1’s dismissal sealed her boy’s fate.

“It was just way too easy to say this juror was the problem,” Land told SN&R. “But she wasn’t the problem. She was the problem for the other jurors.”