Jury in Orange County judge murder trial struggles with 'willful act' definition

After five days of deliberations, jurors weighing murder charges against Orange County Judge Jeffrey M. Ferguson are struggling with the definition of a "willful act."

On Wednesday morning, Los Angeles County Judge Eleanor J. Hunter convened counsel to discuss how to respond to the jury's latest question - one that suggests they are weighing whether Ferguson's actions meet the threshold for murder or involuntary manslaughter.

Speaking without the jury in the room, Hunter read the question:

"If we all agree with the below statement, is that enough for the murder charge?"

Then the jury quoted from the jury instruction for involuntary manslaughter. Hunter told the lawyers that the note also referred to Instruction 580, which concerns whether producing a gun from its resting place - in Ferguson's case, a holster strapped to his ankle - constitutes a willful act.

Ferguson, 74, shot and killed his wife on Aug. 3, 2023, during a domestic dispute. He claims the gun discharged accidentally, while prosecutors point to text messages including one to his court clerk: "I lost it. I shot her. I won't be in tomorrow. I'll be in custody." People v. Ferguson, 23NF1975, (O.C. Super. Ct., filed Aug. 11, 2023).

When the jury was brought to into the courtroom, Hunter began by telling them: "You might have taken note that it's not my job to tell you what the verdict should be. So, I always have to be very careful how I answer questions."

"As when you were out here before, I had told you about the definitions that are at play here and the definition for murder that is contained in 520. Murder is an unlawful killing of a human being with malice aforethought. And if you've read these instructions, there are two kinds. You intend to kill, that's express malice, or the implied malice. And the definition for the implied malice is in that Instruction 520. However, implied malice is also defined in Instruction 580 and that's where they compare what is murder versus involuntary manslaughter."

Then the judge pointed out that they had already written the definition of murder in their note to her.

"I'm going to add intentional because in 520, 'willful' and 'intentional' are basically interchangeable. Done with the full knowledge and awareness that the person is endangering the life of another, and this is done in conscious disregard for that risk. Meaning they know that it's dangerous, but they go ahead anyway," Hunter told them.

"Another question you wrote out was 'is a willful act taking the gun out?' I can't tell you that. That's something that you have to decide for yourself based on all of the evidence that is presented."

With that, the judge sent the jury back into deliberations but very quickly, they sent another note to Hunter.

"We are requesting guidance from the counsel to clarify what the willful act that was done. Was the willful act taking out the gun, was it the pull of the trigger, or is it the totality of pulling out the gun and everything leading to the pulling of the trigger?" the note read.

Hunter decided to allow supplemental oral argument Wednesday afternoon from the prosecution and defense counsel.

The prosecutor, Deputy District Attorney Seton B. Hunt, compared it to vehicular homicide cases, which Ferguson prosecuted when he was a deputy district attorney.

"Operating their vehicle drunk and getting in a deadly crash, even though they know it's wrong couldn't back out later. They're still guilty of murder," Hunt told the jury.

After Hunt sat down, Cameron Talley, defense counsel for Ferguson, stepped up the lectern and said the government got it wrong again.

"This was an accident," he said. 

Talley argued that implied malice requires intentional conduct with foreseeable deadly consequences - not merely an accidental discharge.

With that, the jury returned to deliberations.