Oral arguments as to whether Kristin Smart’s convicted killer Paul Flores should have the jury’s verdict overturned or reduced took place Thursday — almost three years to the date of Flores’ conviction for the 1996 crime in October 2022.

Soloman Wollack, Flores’ appellate attorney, focused on three issues in his arguments: a juror he believed should have been dismissed, the testimonies of two women who said Flores raped them should have been found inadmissible and that the jury instructions on the definition of attempted rape were incorrect.

Meanwhile, California Deputy Attorney General Colleen Tiedemann argued that the decisions made by Monterey County Superior Court Judge Jennifer O’Keefe were correct, and that the jury’s decision to convict Flores should stand.

Flores is currently serving a 25-years-to-life sentence in California state prison in Corcoran and was ordered to pay more than $1.3 million in restitution to the Smart family. He was attacked twice in the first year of serving his sentence.

According to the Smart family, they have not yet received any money from Flores. Denise Smart, Kristin Smart’s mother, told The Tribune the appeal was just a continuation of the arduous case that has gone on for the past 29 years.

“It’s just really difficult because it never goes away,” Denise Smart said. ”It’s a life sentence we got. I’m just going to trust the process.”

Judge abused discretion by not removing juror after outburst, attorney argues

Wollack began his arguments by noting that there were four separate motions to remove Juror 273 from the jury throughout the three-month trial.

He said the culmination of all four incidents — and perhaps the second incident alone — would be grounds for finding a reversible error in the case.

“Each motion to discharge became stronger than the preceding one because it was based on not just whatever gave rise to that motion most immediately, but also everything that happened previously,” Wollack said.

Wollack said Juror 273 had a “major breakdown” in response to Cindy Arrington’s testimony that the soil stains found underneath the deck of Ruben Flores — Paul Flores’ father who was acquitted by a separate jury of helping his son hide the murder — were likely from the decomposition of a human body.

He argued Juror 273’s was “well beyond” a typical emotional response to graphic evidence shown in a murder case. “She’s essentially having a meltdown where other jurors had to come console her,” Wollack said.

Wollack added that when Flores’ defense attorney, Robert Sanger, said it was “the worst outburst he’d ever seen in nearly 50 years of trial practice,” former San Luis Obispo Deputy District Attorney Chris Peuvrelle did not take issue with that statement.

The outburst caused an immediate break in proceedings, and Wollack acknowledged the juror “eventually got around to professing that she could be fair and impartial” — but he argued that her actions throughout the case show otherwise.

He claimed the juror violated the court’s admonishment to not talk about her thoughts or feelings about the case with anyone when she told the bailiff that the soil evidence was the first time she thought Flores might be guilty of killing Smart.

“That’s like an aggravated violation of the courts order to not talk about the case,” Wollack said. “You can’t even talk to the judge about your thought processes if you’re a juror, and here she is talking to the bailiff about it.”

Wollack claimed the juror showed she violated the admonishment again when she was questioned about a Pinterest board she had made years ago that had to do with home improvements. The juror said she had not accessed the board in years or researched anything to do with the case, and O’Keefe ultimately allowed the juror to stay on the case.

Wollack also claimed on Sept. 29, 2022, Juror 273 said she had talked to friends and coworkers about the case, but according to Tribune notes from time, the juror had said friends and coworkers had asked her if she was on the case and she told them she was not allowed to talk about the case she was deciding.

He said these two known violations in the high-publicity case gave major reason to believe the juror was not capable of following the court’s order and may have talked about the case in other occasions.

The other two incidents Wollack focused on where when Juror 273 asked for breaks in response to Sanger’s questioning of Steve Fleming and Jennifer Hudson. Juror 273 expressed that Sanger’s questioning of the witnesses gave her anxiety.

Fleming testified that Flores had shown interest in Smart prior to her disappearance while Hudson claimed Flores admitted to her that he had killed Smart.

“Goodness, he’s asking tough questions and it’s giving her such an anxiety attack that she has to demand a break in the proceedings,” Wollack argued. “That’s not a juror who should be on this case.”

Wollack added that it’s a defense attorney’s job to ask tough questions to witnesses.

He claimed with all of these incidents, the record shows the juror should not have been allowed to stay on the case, arguing that it was an abuse of O’Keefe’s discretion to keep the juror on. He added that the judge had many alternates to replace the juror with if she was dismissed.

Tiedemann, meanwhile, argued that Juror 273 did not have any sort of major breakdown, meltdown or debilitating anxiety attacks in response to the case.

“What the record shows is that she had an emotional response to very graphic testimony,” Tiedemann said, adding that emotional responses were common in murder cases. “We don’t expect jurors to be robots,” she continued. “They are going to have emotional responses to things.”

“There’s case law that supports your point of view,” Presiding Appellate Judge Arthur Gilbert responded, adding, that “this was an unusual case and unusual situation with a juror.”

“I think we have to acknowledge that,” Gilbert said. Tiedmann said this was a “disturbing and graphic case” and noted that O’Keefe noted during one of the discussions with Juror 273 that emotional responses can happen in these types of cases.

Tiedmann disagreed that O’Keefe abused her discretion when she did not dismiss Juror 273 because the record shows O’Keefe instructed the juror about her responsibilities and that the juror affirmed that she could remain unbiased and keep an open mind.

“The judge was very proactive in this case, in making sure that this juror was fine and that she could proceed in this case and she could remain unbiased,” Tiedemann said.

Tiedemann noted that Juror 273 told O’Keefe that her emotions were the result of seeing evidence that showed a possibility of being guilty — not that she had made up her mind or was unwilling to deliberate.

Associate Appellate Justice Tari Cody clarified the issue wasn’t that the juror was thinking about the evidence, but that she told the bailiff and judge what she was thinking, to which Tiedemann responded that O’Keefe found the comment to the bailiff to be not significant and found the juror to be credible.

In his rebuttal, Wollack stated Juror 273’s emotional responses were not only to graphic evidence, but also to the defense asking tough questions, which makes this case unique.

In an April 2023 interview with the The Tribune, Juror 273 said she was one of three people who remained on the fence of whether Flores was guilty despite her earlier emotional outburst.

She said she and the other two jurors needed to make sure there was enough circumstantial evidence that outweighed not having a body.

Recalling the Pinterest board hearing, Juror 273 told The Tribune that she felt Sanger was wanting to get rid of her despite the judge finding her truthful and credible.

“It’s interesting, it’s hard to describe, because you’re not really fighting for your place but your fighting for people to believe your truth,” she said. “It’s an interesting situation because I got called in so many times.”

She said her truth was that she simply had anxiety, but felt that each time she was called in to meet with the judge her character was bring picked apart.

She also said she never talked to anyone about the case until deliberations — something that she said was the most difficult part of the process.

“It’s very traumatizing to go through something like that,” Juror 273 told The Tribune. “Having nightmares, experiencing something, and not be able to tell each other, ‘This is what we’re going through. This is what I’m feeling. This is what I’m thinking. Is this normal?’”

No evidence Kristin Smart was a victim of a sex crime, attorney argues

Under California law, Evidence Code 1108 allows prosecutors to admit evidence of uncharged sex crimes if the defendant is accused of a sex crime in order to show that the defendant had a propensity to commit such an act.

Wollack argued that there was no evidence that there was any sort of sexual assault against Smart.

“No one knows what happened,” Wollack said.

Wollack noted that in Flores’ preliminary hearing, San Luis Obispo Superior Court Judge Craig van Rooyen ruled against allowing the District Attorney’s Office to join two additional rape cases to the case because there was no evidence Smart had been assaulted, calling it a “correct ruling.”

When Gilbert pushed back on Wollack, asking if the evidence could be admissible under 1101, which is a similarity of conduct, Wollack responded “we can’t have a similarity of conduct because we don’t know what happened in this case.”

“We know these women, what they say about what Mr. Flores did to them on subsequent occasions in later years, but that doesn’t create evidence that there was a sexual assault of any kind in this case,” Wollack argued.

When asked by Justice Cody about whether evidence of Flores’ previous sexual interest in Smart — which included testimony that Flores exhibited stalking behavior toward Smart — Wollack responded that Flores showing interest and saying Smart was attractive does not get the evidence to the threshold to accuse Flores of a sex crime.

He added Flores allegedly making lewd comments about Smart does not show any actual attempt to commit rape.

“I don’t think there is any threshold evidence, and I think there needs to be because otherwise the DA would simply get to say, ‘I’m proceeding on a felony murder theory with the target crime of rape,’ and 1108 would apply essentially on the DA’s say so alone,” Wollack argued.

He said it would be a dangerous policy for district attorneys to be able to admit evidence based on a theory of what they think happened alone without proper evidence.

Tiedemann argued that sexual offenses are distinct in nature because they are often committed in seclusion where there are no third-party witnesses and no corroborating evidence.

She said that was the reason Evidence Code 1108 exists, adding that there is not a threshold that needs to be met before 1108 evidence can come in. “This was a sexual offense and it fell within 1108 and therefore 1108 was admissible,” Tiedemann said. “It’s that easy.”

Tiedemann added that O’Keefe did analyze the evidence prior to it being admitted in court and weighed whether its probative value was outweighed by the probability that that the evidence would cause a substantial danger of undue prejudice, confusion or misleading of the jury and found that the evidence could be admitted.

“It’s not a situation where a prosecutor can just make this unfounded allegation that a crime involved a sexual offense to get propensity evidence,” Tiedemann argued.

Wollack said in his rebuttal that the rules of admissibility are clear that there needs to be evidence of a sexual offense in order to admit the 1108 evidence, and that this case simply did not have that.

Paul Flores may not have known Kristin Smart was too intoxicated to consent, attorney says

Wollack argued that while rape of an intoxicated person is guided by a reasonable person standard, meaning a reasonable person would know the victim is intoxicated, attempted rape is guided by a constructive knowledge standard, meaning the defendant should have known or have actually known the victim was intoxicated.

Flores was intoxicated himself, according to his testimony to investigators at the time and the testimony of one witness at the party, Wollack said, so he could have “easily mistaken — because of his own impairment — her level of impairment.”

Wollack clarified that he did not dispute that Smart was too impaired to consent, but argued that there was no evidence that Flore saw or knew how impaired Smart was, espcially since he told investigators that she appeared to be walking “just fine” and said she was not stumbling.

“There is reason to believe from the record that because of his own impairment, he may have mistaken her level of impairment and not realize she was too drunk to consent,” Wollack said.

Wollack argued that the misinstruction on the elements of attempted rape — specifically on the reasonable person versus constructive knowledge standard — could have led to the jury to find a verdict that they otherwise wouldn’t have if the instruction was correctly written.

He added that the attempted rape of an intoxicated person was an element that the jury likely relied on in order to find Flores guilty of Smart’s first degree murder. “The remedy on this error, at least, would be to reduce the crime to second-degree murder,” Wollack said.

According to the four jurors who spoke with The Tribune in April 2023, the testimony of the two women who said Flores raped them was in fact one of the most important pieces of evidence to support their because it established a pattern and made them believe Flores attempted to rape or raped Smart before her death.

Tiedemann argued that there was no objection to the instructions on attempted rape at the time of the trial. “These were standard instructions,” she said. “They accurately and correctly stated the law.”

Tiedemann added that evidence of Flores’ intoxication were only comments he made himself — a point Wollack refuted in his rebuttal, stating another witness said Flores looked drunk.

Flores also walked Smart home, and two witnesses said Flores did not appear to be intoxicated or stumbling, Tiedemann said.

The Court of Appeal is expected to release its decision as to whether Flores’ conviction should be reduced or lowered within 90 days.