A mistrial was declared Wednesday when jurors deadlocked in the retrial of a doctor charged with the attempted murder of a Newport Beach attorney he blamed for his pancreatic cancer.
After about three days of deliberations, jurors deadlocked 11-1 in favor of guilt in the retrial of Richard Lee Austin, 66, of Albuquerque, New Mexico. Attorneys will return to court Nov. 2 to discuss a potential third trial.
Austin’s attorney, Jack Earley, said he may file a motion to have the case dismissed, arguing jurors will never be able to reach a unanimous verdict. But Earley and Deputy District Attorney Jeffrey Boyd said it was also possible a plea bargain may be worked out.
“It’s just a question if we can ever get to a verdict given the facts,” Earley said.
Austin is charged with attempting to kill attorney Limor Lehavi on April 4, 2017. Boyd argued that the defendant was scared off at the last moment when he saw the victim with a co-worker, while Earley argued that his client had a pang of conscience at the last moment and turned away.
“He had this weapon, it was loaded and he was ready to kill,” Boyd told jurors in closing arguments of Austin’s trial.
When Austin showed up at Lehavi’s office, he had “zip ties, duct tape and a wig” as well as “ammunition, a police scanner and binoculars,” Boyd said.
Austin also stole a license plate from a car at John Wayne Airport and put it on his rental car in hopes of evading detection, Boyd argued.
“He was dressed in a disguise to conceal his identity,” Boyd said. “Why? Because he wanted to get away. … This is a man on a mission, a man with intent.”
Austin spent 2 1/2 hours at a target range before going to Lehavi’s office, and he called the attorney’s office several times to “make sure she was there,” Boyd said.
But Austin “made a mistake” when he phoned Lehavi’s office from his own personal phone, tipping off the attorney to his presence and prompting her to ask co-workers to walk with her to her car, thwarting Austin’s plans, Boyd said.
Austin was convicted in March of stalking and trying to kidnap the victim following years of contentious litigation stemming from a road-rage conflict in San Diego. Jurors in that trial, however, acquitted Austin of assault with a deadly weapon and deadlocked 8-4 in favor of guilt on a charge of attempted murder with premeditation and deliberation.
The defendant faces a possible life sentence if convicted in a retrial on the attempted murder charge, which also includes a sentencing enhancement for being armed with a firearm in the commission of a felony.
According to prosecutors, Austin’s troubles started in October 2008 when he got into a road rage confrontation in San Diego that resulted in his arrest on charges of carjacking, robbery and vandalism. He pleaded guilty to vandalism and was ordered to pay restitution to the victim, Cheryl Johns.
Austin settled a civil suit with Johns for $250,000, but he later sued Farmers Insurance, alleging his insurance policy should have covered the settlement. Lehavi successfully defended Farmers Insurance in the lawsuit and Austin was ordered to pay $60,000 in attorneys fees.
Austin appealed and then sued Lehavi, alleging a racketeering conspiracy. Lehavi won again and Austin’s attorneys fees swelled to $100,000.
Austin grew “obsessed” with Lehavi and “blamed her personally,” even later blaming her for his cancer diagnosis, prosecutors said.
During one settlement conference in the civil litigation, Austin “verbally accosted” Lehavi and a courtroom bailiff kicked him out of the building, prosecutors said.
When Lehavi got a new job at a firm in Newport Beach, Austin tracked her down and called her office, pretending to be a Chicago attorney named Robert Brown who wanted to meet with her.
On April 4 of last year, Austin traveled to Orange County, rented a car and again tried to contact Lehavi.
At one point during his calls, the defendant’s name appeared on the caller-ID function at Lehavi’s office, even though Austin was again calling himself Robert Brown. A receptionist alerted Lehavi, who was so frightened she asked co-workers to walk her to her car, according to prosecutors.
Austin was spotted in the parking facility by the victim’s co-worker, prompting him to yell at Austin, prosecutors said.
That led Austin, who had a gun in his medical scrubs, to dash to his rental car, jump in and put the car in reverse, forcing Lehavi’s co-worker to jump out of the way — leading to the assault with a deadly weapon charge, prosecutors said.
Police later arrested Austin at his home in New Mexico.
But Earley said all the evidence against Austin is circumstantial.
Earley argued there is scant evidence to show his client ever went to a shooting range for target practice. He said prosecutors used cell phone tracking to show Austin was near a target range, but the area in question includes “tons of stores there and restaurants.”
“You have one ping near” the shooting range, Earley said of cell phone tracking evidence.
“Do they have anyone who came in here and saw him in there (the shooting range)?” Earley asked.
Austin admitted he ” was there to kidnap her” and was convicted of “stalking” the victim, Earley said.
“Now you have to determine what is the crime” beyond that, Earley told jurors.
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