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Jurors' questions revealed evidence, insight in Pasco neo-Nazi trial

NEW PORT RICHEY — When neo-Nazi John Ditullio took the stand in his own murder trial last month, first his lawyer questioned him. The prosecutor had his shot, and the defense attorney stood again to follow up.

Then the lawyers sat back and listened as the 12 members of the jury became the questioners.

In January 2008, changes adopted by the state Supreme Court gave jurors a more active role in trials. They are now allowed to take notes and, in all civil cases, question witnesses. With disagreement about the practice still lingering, it's left to judges' discretion in criminal cases.

Circuit Judge Michael Andrews, who presided in Ditullio's case, routinely allows it. He, prosecutor Mike Halkitis and Bjorn Brunvand, Ditullio's lead attorney, huddled at the bench and read through more than 40 questions submitted by jurors to decide which could be asked.

Ditullio had joined a small clan of American Nazis living in a single-wide mobile home in the Griffin Park area of west Pasco. On March 23, 2006, authorities say, Ditullio put on a gas mask, broke into the home of a next-door neighbor and stabbed two people. Patricia Wells, who suffered injuries to her face and arms, had an openly gay son and a black friend who visited. Kristofer King, a friend of Wells' son who was also gay, died in the attack.

Some of the jurors' questions to Ditullio reflected their curiosity about his lifestyle. How did the group pay its bills? How long had Ditullio held neo-Nazi beliefs? Does he still consider the other members his brothers?

Other questions zeroed in on the evidence. Why was Ditullio's DNA found on the gas mask, if he was innocent as he claimed? What were he and the others in the neo-Nazi compound wearing that night?

One question provided a window into a juror's mind-set. It began, "Do you really expect us to believe …"

Brunvand said he didn't think the jurors' questions threw an advantage to either side. But he said their questioning may have helped his client a little because of the evidence the defense used to try to poke holes in the state's case.

Foremost, there was an unresolved issue about what Ditullio had on that night and the next morning when he was arrested — a red T-shirt and black pants — and what another neo-Nazi had been seen in. Shawn Plott, several witnesses said, had on a white T-shirt and khaki pants, which matched what Wells said her attacker wore.

"It's helpful that I had some good facts to deal with," Brunvand said.

What sometimes concerns him about the practice in general is the questions that don't get asked.

"Jurors are curious about all kinds of things that they can't know about," said Circuit Judge Lowell Bray, who hears civil cases in Pasco County.

He once had a juror ask how much money a plaintiff's lawyer would keep if monetary damages were awarded.

In Ditullio's case, Brunvand said one juror wanted to know if Ditullio had any prior convictions. He didn't, but procedural rules prohibit such questions from being asked.

"My concern is then there's this lingering doubt: 'Are they hiding something?' " Brunvand said.

The jury ended up deadlocked after deliberating for almost 10 hours. Ten of the 12 voted for acquittal.

Ditullio, 23, will be retried in March. The state is seeking the death penalty.

Circuit Judge Pat Siracusa, who hears criminal cases in Dade City, does not generally allow jurors to ask questions of witnesses during trials.

His reason: Jurors shouldn't take on the job of the prosecutors.

"They're searching for evidence rather than neutrally observing the evidence that's being presented," Siracusa said. "They're not the investigators, they're not the prosecutors. If the state doesn't meet its burden (of proof), then it's not for them to fill in the gaps."

But he sees the other side of the argument.

"I certainly understand the allure of allowing them to ask questions and getting them to participate in that way," he said.

Mike Kenny, a former prosecutor who recently switched to doing private defense, tried several cases in front of Judge Andrews in which jurors asked questions.

As a prosecutor, he said, the jurors' questions sometimes helped him identify what issues they wanted to know more about.

"I knew there were unanswered areas that I needed to fill in," he said. "We think that we know exactly what the issues are. The problem is we think too much like lawyers sometimes."

For the most part, through depositions and pretrial investigation, prosecutors know what defense attorneys will ask of witnesses, and what the answers will be, and vice versa.

That's how both sides like it — no surprises.

"We're always a little bit afraid of the unknown," said Brunvand, Ditullio's attorney. "We like to know what the question is and what the answer is, and so from that perspective it's a little scary to have jurors ask questions."

Molly Moorhead can be reached at moorhead@sptimes.com or (727) 869-6245.

Jurors' questions revealed evidence, insight in Pasco neo-Nazi trial 01/04/10 [Last modified: Monday, January 4, 2010 11:10pm]
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