A man serving a 15-year prison sentence for conspiring to burn down his North Natomas restaurant had his convictions thrown out earlier this month on a rare argument: His trial was not actually public.
Sundeep Dharni, now 42, walked free because spectators, including some members of his family, were briefly excluded from the courtroom during at least part of jury selection to make room for an unusually large pool of prospective jurors.
Dharni’s lawyer, Quin Denvir, argued successfully in the 9th U.S. Circuit Court of Appeals that Dharni was denied his Sixth Amendment right to a public trial, an argument that had been made and rejected by the trial judge before Denvir accepted a court appointment to the case.
Dharni was tried and found guilty in July 2007. He was sentenced to 15 years for trying to burn down the restaurant he was preparing to open, and for collecting $22,291 from Farmers Insurance on a loss claim.
Co-conspirator Richard Duran testified against Dharni, admitting he bungled the torch job on the restaurant. He failed to disable the sprinkler system; set the fire directly under a sprinkler head, which activated and doused the flames before they could do much damage and, before setting the fire, took expensive equipment that later showed up on the insurance claim out of the place and put it in his van. When he was stopped on a traffic violation sometime later, some of the equipment was still in the van.
“As you can see, I’m not too good at committing crimes,” Duran told the jurors.
In return for his cooperation, Duran, now 39, received a reduced sentence of five years in federal prison.
Dharni was serving his sentence in 2012 when Denvir was appointed as his new attorney. Now all but retired, Denvir has a national reputation as an effective appellate attorney. He served as the California public defender from 1978 to 1984, and as the federal defender in the Eastern District of California from 1996 to 2005, defending and high-profile prosecutions and arguing before the U.S. Supreme Court. He was a lead defense counsel for Theodore Kaczynski, the notorious Unabomber.
When Denvir entered the Dharni case, it was set to go at the 9th U.S. Circuit Court of Appeals on a petition for habeas corpus, a post-conviction tool available to a defendant after a direct appeal has failed.
On March 7, 2013, six months before they heard oral arguments on the petition, two circuit judges took the unusual step of granting Denvir’s motion for Dharni’s release pending a final decision. In a cryptic, 12-line order, the judges said Dharni “is not likely to flee or pose a danger” and has “demonstrated ‘a high probability of success’ such that this is an ‘extraordinary case.’ ”
A month later Dharni was freed on a $200,000 unsecured appearance bond and under conditions set down by U.S. Magistrate Judge Dale Drozd in Sacramento. He never returned to prison. He had more than seven years shaved off his incarceration.
“I am thankful for my attorney’s relentless representation and am glad that the judges in this case made the right decision and allowed justice to prevail,” said Dharni, who says he is now “gainfully employed” and living in the Sacramento area. “I would like to thank my friends and family for their love and support throughout this long process.”
In July 2014, a split three-judge circuit panel sent the case back to Sacramento for additions to be made to the record reflecting the scope of the courtroom closure, and for the lower court to decide “whether spectators had an opportunity to re-enter the courtroom during (jury selection), including whether seats in fact opened up and, if so, whether spectators would have been aware of the vacancies, and whether the district court and court officials would have allowed the spectators to enter” while jury selection was underway.
The parties agreed it would be next to impossible to come up with precise answers to the circuit’s questions about 7 1/2 -year-old events. Instead, in January Denvir and the prosecutor asked the circuit to let them find out whether the court in Sacramento would grant a motion by the government to dismiss Dharni’s convictions, conditioned upon Dharni’s acceptance of a plea agreement and a re-sentence to time served.
The circuit granted the request, which was signed for the government by Assistant U.S. Attorney Audrey Hemesath.
“I’m gratified that the government would consider such a reasonable solution,” Denvir said in an interview. “Ms. Hemesath was a pleasure to work with. She listens to what you have to say and takes it seriously.”
But the agreement did not please U.S. District Judge William Shubb, who had inherited the Dharni case after the trial judge retired. Shubb didn’t want to second-guess the trial judge, he said at an April 6 hearing. “It was a considered opinion. It cited the applicable law. It made a determination that, based upon what (the judge) knew from his involvement in the case, the closure was trivial.”
Neither did Shubb like an arrangement that had him telling the parties “how I’m going to sentence a defendant before I even decide whether to set aside (the trial judge’s) order and before I even address the plea or the plea agreement.”
He then proceeded to put the onus on the appellate judges to do something “helpful.”
“I have thought about this case every time that I selected a jury ever since I first heard about this appeal, and every time I look at the back of the courtroom to see if there’s any empty seats, because I want to be able to say, if it was the case, that the public could have observed (jury selection),” he said at the April hearing.
With the ball back in their court, Circuit Judges Raymond Fisher and Marsha Berzon reversed Shubb on Oct. 6, sending the case back to him with directions to dismiss Dharni’s convictions. Circuit Judge J. Clifford Wallace dissented, writing: “Even if the courtroom closure was not trivial and violated Dharni’s Sixth Amendment rights, we should deny Dharni’s petition because he has not claimed, much less established, that he was actually prejudiced by the closure.”
On Oct. 13, Shubb dismissed Dharni’s convictions. In accord with his bargain, Dharni then pleaded guilty to one count of arson and was sentenced to time served.