Mistrial for Priest Protesting Abortion : Courts: Case is dismissed after a jury deadlocks in the trial of the first activist in the county allowed to use the ‘necessity defense.’

A mistrial was declared Friday in the trespassing case of a Roman Catholic priest who was the first antiabortion activist in Los Angeles County allowed to use the so-called “necessity defense,” after one juror reportedly said she could never convict a priest.

An outraged prosecutor immediately moved to retry Father George Peter Irving, associate pastor of Church of the Assumption in East Los Angeles, who was arrested in December for allegedly blocking the entrance to an El Monte family planning clinic.

But Rio Hondo Municipal Judge Richard Van Dusen--who allowed the defense to be used--turned down the request and dismissed the case. Although the jurors split 11 to 1 favoring guilt, he said there was no reason to believe 12 new jurors would have an easier time reaching a verdict.

“You’re really dealing with a simple trespassing case that has larger moral issues thrown in,” Van Dusen said in an interview after the case was dismissed. “One side says those issues don’t make any difference, and the other side says they make all the difference. It’s just a real tough area.”

The trial marked the first time in 600 such cases that a defendant was allowed to argue that blocking a clinic was necessary to prevent a greater harm, according to Los Angeles County district attorney and Los Angeles city attorney officials.

In all the other trespassing cases against members of the antiabortion group Operation Rescue, prosecutors have successfully excluded such testimony on the grounds that abortion is legal and, therefore, does not pose a “significant evil” that would justify breaking the law.

“For us, just being able to put on that defense was a victory,” said Irving’s lawyer, Kevin P. Lane. “Anything else would be icing on the cake.”

Operation Rescue spokeswoman Sue Finn, who said she has received calls from around the country on the case, also hailed the dismissal.

But abortion rights activists said they were troubled by the outcome. “Justice was not done,” said Robin Schneider, executive director of the California Abortion Rights Action League. “This says it’s OK to be easy on a criminal just because he’s wearing a collar.”

Throughout the weeklong trial, Deputy Dist. Atty. DeAnn M. Delgado tried to steer the debate away from abortion, saying the case was a simple question of whether Irving blocked the clinic door.

But Lane argued that it was absurd for the priest to stand trial without being allowed to explain that he believed he was preventing a murder when he and 100 others gathered outside Clinica Eva in El Monte on Dec. 19, 1989.

The judge agreed. “If you muzzle someone and don’t let them put their case on, you can’t really have a fair hearing,” Van Dusen told The Times in an earlier interview.

As part of his defense, Lane flew in Dr. Thomas Hilgers, director of the Pope Paul VI Institute in Omaha, who testified that he believes life begins at conception and showed an ultrasound videotape of a fetus in the womb.

At first, the seven-woman, five-man jury agreed that Irving, 37, was guilty of trespassing and obstructing a public thoroughfare. But when it came time to decide whether the priest acted out of necessity, the jurors were divided.

Fearing that Irving would be convicted, one juror said she could not allow that to happen to a priest and changed her vote to not guilty, Delgado and several jurors said.

The holdout juror was not publicly identified, and efforts to reach her were unsuccessful.