One of the four defendants convicted of killing Edgewood resident Jim Sanders during the so-called “Craigslist case” four years ago will get a new trial after a Washington State Court of Appeals panel ruled his rights were violated during his first trial.
Clabon T. Berniard, 27, is serving a nearly 124-year sentence after being convicted of first-degree murder and other charges in the 2010 death of Sanders.
The Edgewood man was shot while defending his family from a group of robbers who invaded his home under the guise of buying a ring the victim had advertised on Craigslist.
The invaders tied up Sanders and his wife, beat them and threatened their school-age sons at gunpoint before one of the robbers – Kiyoshi Higashi – shot Sanders when the 43-year-old man broke free of his bonds and fought.
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Berniard maintained his innocence during trial, saying he wasn’t at Sanders’ home the night he was killed.
A three-judge panel for Division II did not comment on the evidence in an opinion released Tuesday, but did say Berniard’s right to a fair trial was infringed by two errors by Superior Court Judge Rosanne Buckner, now retired.
The first was Buckner’s decision to allow Pierce County sheriff’s detectives to testify about statements Berniard’s co-defendants made about him during interrogations after their arrests.
Such out-of-court statements sometimes can be admitted at trial, but their use is heavily constrained.
Buckner limited how prosecutors could use the testimony, but didn’t do it well enough to ensure Berniard’s Sixth Amendment right to confront the witnesses, the appellate panel said.
None of Berniard’s co-defendants –Higashi, Amanda Knight and Joshua Reese – testified at his trial.
“The officers’ testimony amounted to a ‘backdoor’ introduction of inadmissible out-of-court statements,” Judge Thomas Bjorgen wrote for the panel, which included judges Lisa Worswick and Jill Johanson.
Buckner’s second error was dismissing a deliberating juror without questioning the woman thoroughly enough, the panel said.
The juror broke down in tears the day after deliberations began while talking with a county employee, who referred her to another county employee who counsels jurors who might be having a hard time.
That counselor spoke to the woman, offered her comfort and told her she would have to advise the court about their conversation, court records show.
The counselor then told Buckner the woman had expressed thoughts of hurting herself because of the stress and that “she was fearful that all the jurors would be against her,” the records show.
Buckner held a hearing on the matter before dismissing the juror over the objection of Berniard’s attorney, ruling the woman, “because of her unstable mental and emotional condition,” was unfit to continue serving on the jury, the records show.
Buckner never brought the juror out to be questioned by her or the attorneys in the case.
The judge then appointed an alternate juror and ordered the newly formed jury to begin deliberating anew.
On appeal, Berniard argued that lawyers should have been able to question the juror before her dismissal to see whether she should have been allowed to continue deliberating or whether a mistrial should have been declared.
The appellate panel agreed.
“In these circumstances, the trial court had a duty to conduct a balanced investigation and apply the heightened evidentiary standard,” Bjorgen wrote.
“This error led to the removal of a juror who had begun deliberations and may have believed that the state had not met its burden, violating Berniard’s right to unanimous verdict, and may have suggested to the reconstituted jury that the court preferred guilty verdicts, violating Berniard’s right to an impartial jury.”
Higashi, Knight and Reese were convicted of murder charges and are serving long prison terms.