Dan Dow mishap at sexual assault trial leads to dismissal of entire jury panel

January 17, 2019

A San Luis Obispo County judge dismissed the entire jury panel in a Cambria sexual assault case that SLO County District Dan Dow is personally prosecuting after Dow appeared to trivialize reasonable doubt in his questioning of prospective jurors, something he had been warned against doing prior to committing the offense. [Tribune]

Before the start of jury selection on Monday in the trial of 72-year-old Herbert George Connor, Judge Jacquelyn Duffy approved a series of motions filed last October by defense attorney Ilan Funke-Bilu. The motions sought judicial intervention in the case Dow committed any of 19 unlawful courtroom actions that could prejudice the jury.

Funke-Bilu’s 19 separate motions included requests that the judge intervene if Dow made unfounded hypotheticals, made statements about possible consequences of Connor not being convicted, brought up religion, stated his personal belief that Connor is guilty, appealed to jurors’ passions or prejudices or trivialized or misstated the standard for reasonable doubt. Duffy approved all 19 motions.

On Tuesday afternoon, with just 17 of 62 prospective jurors remaining in the jury pool, Dow began raising hypotheticals about reasonable doubt when questioning jurors.

“Who here flies in an airplane?” Dow asked prospective jurors. “And who’s ever worried either on a plane or before going on a plane that this plane might go down? I know I have. It’s kind of a natural thing.”

Dow asked an individual juror how he or she makes the decision to fly, to which the person responded “statistics,” according to court transcripts.

“If you had reasonable doubt, a doubt that was based in reason, would you get on that plane?” Dow asked.

The juror said no.

“So I think we’ve all been in situations where there might be something that could be dangerous, like getting on the freeway in L.A., different things,” Dow said. “And if your vehicle had a major mechanical problem with it, you know, would you let your children or grandchildren ride in that vehicle?”

Funke-Bilu then objected, arguing that Dow was “trivializing reasonable doubt.” In turn, Duffy directed Dow to not use the hypothetical airplane and vehicle analogies when questioning prospective jurors.

Duffy later read a transcript of Dow’s comments and granted a motion by Funke-Bilu for a new jury panel.

Connor, Funke-Bilu’s client, is charged with felony counts of assault with intent to commit rape and sexual battery and a misdemeanor count of inflicting corporal injury. He faces a maximum sentence of seven years in prison if convicted of all charges.

The charges stem from an incident in which he allegedly forced himself on a 67-year-old woman, groped her and caused her to fall into a door jam while she tried to escape. Connor and the woman previously had a sexual relationship, though there are conflicting accounts as to the nature of their encounters.

Though prosecutors had previously planned to drop the charges against Connor, shortly after Dow’s reelection as district attorney in June, he appeared in court to take over the case. Sitting district attorneys very rarely personally try cases in SLO County.

Funke-Bilu has previously alleged that Dow took over the case because of political pressure placed on him by the alleged victim’s attorney during the height of his reelection campaign. The alleged victim’s lawyer threatened Dow with bad publicity just days before Election Day if the district attorney did not grant the lawyer’s request for a meeting, according to court documents.

Jury selection resumed Wednesday afternoon with a fresh panel of 125 prospective jurors. Opening statements in the case could begin as soon as Thursday afternoon.