Cliff Gardner

Today, the NAACP Legal Defense and Educational Fund, Inc. (LDF), along with co-counsel Cliff Gardner, filed a cert petition on behalf of Johnny Duane Miles in the United States Supreme Court. The petition requests that a writ of certiorari be granted to review the California Supreme Court’s judgement in People v. Miles, which rejected Miles’ jury discrimination claim and affirmed his conviction and death sentence.

“Jury discrimination remains a serious problem in the United States, as prosecutors use peremptory challenges to remove Black prospective jurors far more frequently than white prospective jurors. This violates the constitutional rights of prospective jurors, who are entitled to the responsibilities of full citizenship, and accused individuals, who are entitled to a fair trial,” said Chris Kemmitt, Senior Counsel and Director of Professional Development at LDF. “When implemented properly, federal case law helps diminish instances of jury discrimination in this nation’s court system. However, as Mr. Miles’ case demonstrates, the state of California has repeatedly refused to faithfully apply federal case law, making it nearly impossible to win a jury discrimination challenge in the California Supreme Court.”

Since the landmark Supreme Court jury discrimination case, Batson v. Kentucky, was decided in 1986, subsequent U.S. Supreme Court cases have sought to ensure that prosecutors heed Batson’s requirement and do not strike Black prospective jurors because of their race. But the California Supreme Court’s cases have not. Since 1992, the California Supreme Court has reviewed 135 cases in which the trial court denied Batson challenges (objections to peremptory juror strikes on the grounds that a prospective juror was excluded based on race, sex, or ethnicity). It has reversed two of these denials. And, since 1987 — the year after the Batson decision was issued — the California Supreme Court has rejected every single Batson challenge involving a Black prospective juror.

“Comparative juror analysis — which involves assessing whether a prosecutor’s stated reasons for striking a Black prospective juror could also apply to a white juror who the prosecutor accepted — is arguably the most powerful tool for proving jury discrimination in a legal challenge,” said co-counsel Cliff Gardner. “The California Supreme Court’s decision in Mr. Miles’ case reflects a longstanding issue in California courts of rendering comparative juror analysis inoperable, a violation of Supreme Court precedent that undercuts the integrity of the judicial system.”

Federal Judge Grants Petition To Man Convicted Of Strangling Jennifer Schipsi, Setting Their Cottage On Fire

Bulos Zumot, a former Palo Alto resident who was convicted in 2011 of murdering his girlfriend, Jennifer Schipsi, and setting their rented cottage on fire, will face a new trial after a federal judge concurred with his claims that prosecutors had failed to disclose to the jury evidence that supported his alibi.

In a Sept. 2 order granting Zumot's petition for a writ of habeas corpus, U.S. District Judge William Orrick directed the state to release Zumot from prison, unless the state commences proceedings for a new trial within 120 days. The Santa Clara District Attorney's Office plans to retry Zumot within that window, spokesman Sean Webby said in an email.

Zumot is currently serving a term of 33 years to life at California Men's Colony, a state prison near San Luis Obispo, after being convicted of killing Schipsi and setting their Addison Street cottage on fire on Oct. 15, 2009. According to the California Department of Corrections and Rehabilitation, he is eligible for parole in October 2034.

By granting Zumot's petition, the federal court handed him a victory after numerous defeats on the state level. In November 2016, the California Superior Court denied his petition for writ of habeas corpus. Two months later, he filed a petition to the California Court of Appeals, which rejected his argument on Aug. 31, 2017. Zumot then took his petition to the California Supreme Court, which similarly denied it in March 2019.

Orrick, however, concurred with the arguments from Zumot's attorney, Cliff Gardner, that the prosecution's case had significant flaws. In his petition, Gardner focused on two pieces of evidence that were used during the trial: surveillance footage from the now-closed Da Hookah Spot on Oct. 15, 2009, the day of the fire, and a record of phone calls from a blocked number that Schipsi received on Aug. 24, 2009.

During the trial, Palo Alto police officers testified that Zumot was at Da Hookah Spot, a University Avenue hookah lounge that he owned, at about 6:47 p.m., and surveillance footage showing him at the downtown establishment at that time. This suggested that it was feasible for Zumot to set the fire between 6:35 p.m. and 6:40 p.m. and reach the hookah lounge by 6:47 p.m. The Fire Department received the call about the fire at about 6:39 p.m., when Zumot's landlord saw the flames and reported the blaze.

In his petition, Gardner presented evidence suggesting that Zumot may have been at the hookah lounge earlier, which would make it less likely that he had started the fire. One was footage showing Zumot at 6:45 p.m. The other was a five-second clip from 6:41 p.m., showing a blurry image of someone walking to the hookah shop from the Ramona Street entrance. Gardner contended that the man was Zumot; prosecutors claimed that the man was another hookah shop employee.

"The video evidence shows that the state presented false evidence and argument as to exactly when Mr. Zumot arrived in the café," Gardner wrote in the petition. "The state's argument that he did not arrive until 6:47:38 was false."

In its response, prosecutors from the California Attorney General's Office disputed the idea that this footage represents "false evidence" and pointed to prior court decisions, which found the 6:41 p.m. footage highly questionable. The person in the brief clip is shown wearing a shirt with shirttails extending below the waste, the state's argument notes. Zumot was wearing a sweatshirt that ended at waist level.

"Petition's claim should be rejected. No 'false' evidence was introduced or argued at trial, and even if it was, the prosecution neither knew that nor should have known it, and the evidence was not material," Attorney General Xavier Becerra, Supervisor Deputy Attorney General Peggy Ruffra and Deputy Attorney General Gregory Ott wrote in their answer to Zumot's petition. "Petitioner's claims to the contrary are built upon a selective characterization of the evidence adduced at trial, the prosecutor's argument, and petitioner's defense."

Laci Peterson’s 2002 disappearance from her Modesto home on Christmas Eve made instant headlines. Her family initially said that Scott, her husband, was beyond suspicion. Then a woman surfaced who said she was having an affair with him. Finally, Laci’s remains and her 8-month-old fetus washed up on a rocky shore near where Scott said he had gone fishing on Christmas Eve.

Eighteen years later, Peterson’s death sentence for killing his pregnant wife and unborn son has been overturned, and his convictions are under scrutiny. Alleged juror misconduct has sent the case back to San Mateo County Superior Court, where the fertilizer salesman was found guilty and sentenced to death after a 2004 trial.

“It’s basically a second chance for Peterson,” said Loyola Law School professor Laurie Levenson, a former federal prosecutor who now leads a project at the school to try to free the wrongly convicted.

The unraveling of such a high-profile murder case stems from legal errors made by the trial judge and a woman who allegedly lied to get picked for the jury and became obsessed with the death of the fetus, whom Laci and Scott were going to name Conner.

The California Supreme Court on Wednesday issued an order requiring a San Mateo County judge to examine whether the juror committed misconduct, and if so, whether the guilty verdicts should be overturned. A full-blown hearing with witnesses is possible. If the evidence clearly shows misconduct, prosecutors will have to show the juror’s actions were irrelevant to the case to prevail.

Whatever the judge decides can be appealed, and the process could take months if not years. If the defense succeeds in overturning the convictions, Peterson most likely would be retried.

The order issued by the state’s highest court is called “an order to show cause.” It asks the trial court to determine whether Peterson should be granted a new trial on the grounds that “Juror No. 7 committed prejudicial misconduct by not disclosing her prior involvement with other legal proceedings, including but not limited to being the victim of a crime.”

The California Supreme Court rarely issues such orders and usually limits them to sentences, not verdicts, said Scott Kauffman, a criminal defense appellate lawyer. In any case, Kauffman said, the prosecution ultimately prevails most of the time.

“When you are in habeas you are already dead and buried,” Kauffman said. “If you get an order to show cause, you’re closer to the surface but you are not there. You have to prove your claims in a hostile environment against a usually hostile judge.”

But the defense can prevail. Cliff Gardner, Peterson’s defense lawyer, said he has had two capital cases in which such orders led to the overturning of sentences.

“I am very confident that we can win it,” Gardner said Thursday. “Whether we do or not, there are a lot of things that go into that calculus.”

The California Supreme Court’s actions, he said, “reflect the importance of jury selection in a case.”

John Goold, a spokesman for the Stanislaus County district attorney’s office, which prosecuted Peterson, downplayed the significance of Wednesday’s order.

“This is one step in a very long and complicated appellate process,” Goold said.

The California Supreme Court had little choice but to overturn Peterson’s death sentence this year. The late Judge Alfred Delucchi, who presided over the trial, discharged prospective jurors who expressed opposition to capital punishment but said they would be willing to impose it. Delucchi’s actions flouted U.S. Supreme Court precedent.

“Jurors may not be excused merely for opposition to the death penalty, but only for views rendering them unable to fairly consider imposing that penalty in accordance with their oath,” Justice Leondra R. Kruger wrote for a unanimous California Supreme Court.

The court expressed bewilderment about Delucchi’s actions. He had experience in criminal law and should have known better, the court said.

The Aug. 24 decision left intact the guilty verdicts.

But Peterson’s lawyers also challenged the convictions in a separate habeas corpus petition, which examines evidence the court did not hear.

Most legal documents are dry and soporific, but Peterson’s 277-page habeas was gripping. It raised evidence suggesting Peterson was innocent and alleged that his trial lawyer, Mark Geragos, had failed his client by neglecting to read a document that could have been used to challenge a prosecution witness.

The court, however, rejected all claims but one: that Richelle Nice, Juror No. 7, lied to get picked for the jury.

Initially seated as an alternate, Nice replaced a discharged juror during deliberations. She later co-wrote a book about the case with several other jurors.

Peterson’s lawyers argued that Nice worked hard to get on the jury. Even though her employer would pay for only two weeks of jury service, Nice said she was willing to forgo months of pay to serve.

All the potential jurors were asked whether they had ever been a victim of a crime or involved in a lawsuit. Nice said no to both questions.

In fact, Peterson’s lawyers said, Nice in 2000 had obtained a restraining order against her boyfriend’s ex-girlfriend for harassing her when she was 4 ½ months pregnant.

Nice filed a lawsuit to obtain the order, saying she feared for her unborn child. The attacker was tried based on Nice’s charges, convicted and sentenced to a week in jail, according to Peterson’s lawyers.

They also said Nice also was one of two holdouts for convicting Peterson of first-degree murder for killing his unborn child. The jury convicted Peterson of the first-degree murder of Laci and the second-degree murder of the fetus, whom Nice called “Little Man.”

After the trial, Peterson’s lawyers said, Nice wrote Peterson more than two dozen letters, many of them focused on the killing of his unborn son.

Peterson was tried in San Mateo County after a judge ruled he could not get a fair trial in Stanislaus County. Stanislaus County prosecutors may seek a new penalty trial for Peterson to try to get the death penalty reinstated. Goold, the district attorney’s spokesman, said no decision has been made on that.

Loyola’s Levinson said the errors the judge made in the Peterson case and the possible juror misconduct raised questions about less visible death penalty trials.

“If this can happen in a high-profile case, it certainly makes us wonder what is happening in cases that are not under the microscope,” she said.

The California Supreme Court on Wednesday ordered a review of Scott Peterson’s convictions for murdering his wife, Laci, and their unborn son, because a juror in the 2004 trial failed to disclose that she was involved in certain legal proceedings.

The court ordered the state to show why Mr. Peterson’s murder convictions should not be overturned on the grounds that the juror, No. 7, “committed prejudicial misconduct by not disclosing her prior involvement with other legal proceedings, including but not limited to being the victim of a crime.”

The case will return to the San Mateo County Superior Court to determine if Mr. Peterson should be given a new trial.

The Los Angeles Times reported that the juror had not shared that she was granted a restraining order in 2000 against her boyfriend’s ex-girlfriend for harassing her when she was pregnant.

Mr. Peterson’s lawyer, Cliff Gardner, said in a statement that he was pleased with the court’s decision.

“We agree not only with the court’s apparent concern about juror candor during the jury selection process, but with its recognition about how central the misconduct was to the ability of the jury to reach a fair decision in this case,” he said.

The case and trial, which drew widespread media coverage and spawned at least one made-for-TV movie, returned to the spotlight in August when the California Supreme Court overturned Mr. Peterson’s death sentence. At the time, the court upheld Mr. Peterson’s convictions, but said that the trial judge had made mistakes that hindered his right to an impartial jury during sentencing.

“We reject Peterson’s claim that he received an unfair trial as to guilt and thus affirm his convictions for murder,” the court said. “But before the trial began, the trial court made a series of clear and significant errors in jury selection.”

The court said prosecutors could again seek the death penalty for Mr. Peterson at a new hearing.

Laci Peterson, a 27-year-old substitute teacher who was eight months pregnant, was reported missing on Christmas Eve 2002 from the home she and Mr. Peterson shared in Modesto, Calif.
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In April 2003, her body was found in San Francisco Bay, close to where Mr. Peterson, then 30, had told the police he had gone fishing the day she went missing.

Mr. Peterson was arrested not long after.

During the trial, the prosecution argued that Mr. Peterson, who ran a fertilizer company in Modesto, had killed his wife so he could carry on a relationship with another woman, Amber Frey.

A jury found Mr. Peterson guilty of first-degree murder for the death of Ms. Peterson and second-degree murder for the death of the fetus. The couple’s baby, whom they had decided to name Conner, was due in February 2003.

The case had been moved to San Mateo County Superior Court from Modesto, about 70 miles to the east, because of pretrial publicity.

When Mr. Peterson was sentenced to death by lethal injection in 2005, the judge gave Ms. Peterson’s family members the opportunity to address him.

“You are going to burn in hell for this, you are,” Ms. Peterson’s father, Dennis Rocha, said. “Your life is done.”

Allyson Waller and Christine Hauser contributed reporting.

The California Supreme Court on Monday unanimously overturned the death penalty for Scott Peterson, who was convicted of killing his wife, Laci, and their unborn son in 2002.

In a decision written by Justice Leondra Kruger, the state's highest court said the death sentence must be removed because the trial judge wrongly discharged prospective jurors who expressed opposition to capital punishment but said they would be willing to impose it.

The court left in place the guilty verdict and said prosecutors could retry Peterson on the penalty if they wished.

"Before the trial began, the trial court made a series of clear and significant errors in jury selection that, under long-standing United States Supreme Court precedent, undermined Peterson's right to an impartial jury at the penalty phase," Kruger wrote.

The court said the rules for dismissing potential jurors based on concerns about the death penalty were well established by Peterson's trial.

"Jurors may not be excused merely for opposition to the death penalty, but only for views rendering them unable to fairly consider imposing that penalty in accordance with their oath," Kruger wrote.

Instead of just dismissing the prospective jurors, the judge should have permitted them to be questioned so their views could have better been explored, the court said.

"As the present case demonstrates, an inadequate or incomplete examination of potential jurors can have disastrous consequences as to the validity of a judgment," Kruger wrote.

In addition to challenging the removal of prospective jurors, Peterson had argued that massive pretrial publicity deprived him of a fair trial.

Peterson's trial was moved to San Mateo County after a judge found he could not get a fair trial in Modesto. Peterson's appellate lawyer argued the trial should have been moved again after questionnaires of more than 1,000 potential jurors in San Mateo County showed many already were convinced Peterson was guilty.

But the court said the publicity was so widespread that moving the trial to yet another county would not have mattered.

"Precisely because this case was the subject of such widespread media attention, it is unclear what purpose a second change of venue would have served," the court said. "The publicity the Peterson trial generated, like the trials of O.J. Simpson, the Manson family, and any number of other so-called trials of the century before them, was intrinsic to the case, not the place."

Prosecutors in Stanislaus County must decide whether to try once again to seek the death penalty or agree to commute the sentence to life without possibility of parole.

John Goold, a spokesman for the Stanislaus County district attorney's office, said prosecutors were still examining the ruling Monday and had not yet decided how to proceed.

"We are going to have to review the decision and get together with the victim's family before any decision is going to be made," Goold said.

Cliff Gardner, Peterson's appellate lawyer, appeared doubtful Monday that prosecutors would seek a new trial on the penalty. He said the California Supreme Court was now reviewing a separate habeas corpus challenge filed on behalf of Peterson that contained "new forensic and eyewitness evidence of innocence."

"In deciding whether to seek a new death sentence, the question for prosecutors now is whether they can prove Mr. Peterson culpable for this crime to even a single juror seated through a fair jury selection process," Gardner said.

Peterson is confined at San Quentin prison, where scores of inmates have been infected by the coronavirus and several have died. Asked if Peterson had contracted the virus, Gardner said only: "He is doing fine now."

The California attorney general's office, which argued the case for prosecutors, declined to comment.

Laci Peterson, 27, was due to give birth in four weeks when she disappeared on Christmas Eve. Scott Peterson told police he had left their Modesto home that morning to go fishing in Berkeley.

Nearly four months later, Laci's remains and the body of her unborn son, with the umbilical cord still attached, washed up on a rocky shore on San Francisco Bay. A passerby walking a dog found them a few miles from where Scott Peterson said he had gone fishing.

Laci's disappearance sparked a massive search. At first her family did not suspect Scott. That changed after a massage therapist named Amber Frey told police that she and Peterson had been dating, and that he had told her his wife had died. She then secretly recorded calls with him for the police.

Police arrested Peterson in San Diego County. He had bleached his hair and goatee and was carrying $15,000 in cash.


Prosecutors told jurors that Scott either strangled or suffocated his wife on the night of Dec. 23, 2002, or the following morning. He wrapped her body in a blue tarp, put her in the back of his boat, affixed anchors to her and dropped her in the bay, they said.

Mark Geragos, who defended Peterson at trial, argued Laci had been kidnapped by strangers who dumped her in the bay to frame her husband.

California's Supreme Court on Monday reversed the death sentence handed down to Scott Peterson for the 2002 deaths of his wife Laci and unborn son.

The high court found that the trial itself was fair and the murder convictions stand.

In an automatic appeal, which was first filed with the Supreme Court in 2012, the court found that potential jurors were dismissed erroneously, in part because they expressed general objections to the death penalty on a questionnaire.

"While a court may dismiss a prospective juror as unqualified to sit on a capital case if the juror's views on capital punishment would substantially impair his or her ability to follow the law, a juror may not be dismissed merely because he or she has expressed opposition to the death penalty as a general matter," the opinion states.

Nothing in the questionnaires showed that the dismissed jurors would have been unable to vote for the death penalty if the the circumstances warranted, the justices said.

"The death sentence must be reversed, and the People given another opportunity to seek that penalty before a properly selected jury if they so choose," the opinion said.

The case has been remanded to Stanislaus County Superior Court to handle the sentencing.

Laci, who was seven months pregnant, disappeared from her Modesto home just before Christmas 2002 and was reported missing by her husband.

In the early days of the months long search for Laci, a woman who had been having an affair with Peterson came forward. In April 2003, Laci's body and that of her son washed up in San Francisco Bay. Scott Peterson was arrested shortly thereafter.

In November 2004, a jury found Peterson guilty of first-degree murder for Laci's death and second-degree murder for the death of the son, Conner. Peterson, now 47, was sentenced to death on December 13, 2004.

Cliff Gardner, attorney for Peterson, thanked the Supreme Court for its decision.

"We are grateful for the California Supreme Court's unanimous recognition that if the state wishes to put someone to death, it must proceed to trial only with a fairly selected jury. Prosecutors may not rely on a jury specifically organized by the state to return a verdict of death,"

Gardner said.

"In deciding whether to seek a new death sentence, the question for prosecutors now is whether they can prove Mr. Peterson culpable for this crime to even a single juror seated through a fair jury selection process."

John Goold, spokesperson for the Stanislaus County District Attorney's Office, said, "We are reviewing the decision and will discuss with the victim's family." The district attorney's office has not said whether it will seek the death penalty again.

In 2019, Gov. Gavin Newsom issued a moratorium on the death penalty. The moratorium is only in effect while Newsom is in office.

California hasn't executed an inmate since 2006.

A federal appeals court ruled on Friday to vacate the death sentence of Dzhokhar Tsarnaev, who along with his brother planted homemade bombs near the finish of the 2013 Boston Marathon, killing three spectators and injuring hundreds.

The court also ruled to set aside three of his 30 convictions but said he will remain in federal prison for the rest of his life.

The court ruled Tsarnaev should be given a new penalty phase trial, where a new set of jurors can again decide if he should be sentenced to death. Tsarnaev, now 27, will remain incarcerated and is being held at the nation's most secure federal prison in Florence, Colorado.

"And just to be crystal clear: Because we are affirming the convictions (excluding the three ... convictions) and the many life sentences imposed on those remaining counts (which Dzhokhar has not challenged), Dzhokhar will remain confined to prison for the rest of his life, with the only question remaining being whether the government will end his life by executing him," the opinion, authored by Circuit Court Judge Ojetta Rogeriee Thompson, says.

Tsarnaev was convicted in 2015, including for the deaths of Krystle Campbell, Martin Richard, Lingzi Lu at the marathon and police officer Sean Collier, separately.

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Tsarnaev's legal team had pushed to change the venue of the trial to a courthouse that wasn't so close to the site of the bombing, in the heart of a town so affected by the tragedy. The appeals court judges agreed, saying, "One could not turn on the radio either without hearing something about these stunningly sad events."

The appeals judges ruled that US District Court Judge George O'Toole, who oversaw Tsarnaev's trial, "fell short" of his promise to question jurors thoroughly enough to identify the degree to which they had been exposed to facts of the case through media coverage, "providing sufficient ground to vacate his death sentences."

Part of the appeals court's ruling was a decision to reverse three convictions for charges that Tsarnaev was carrying a firearm in connection with his possession of a pressure cooker bomb. The ruling tells the district court to enter judgments of acquittal on those charges, put together a new jury and preside over a new trial that strictly focuses on what penalty Tsarnaev should receive for the counts that are eligible for the death penalty. Tsarnaev's attorneys had filed a post-trial motion for judgments of acquittal on these convictions that the district court judge denied.

CNN has reached out to Tsarnaev's legal team [Cliff Gardner, Deirdre Von Dornum Daniel Habib, Mia Eisner-Grynberg and Gail Johnson] for comment on the ruling.

The ruling also states that the judges make no judgment about whether Boston is a "proper venue" for a sentencing retrial, and says it is a decision that should be left to the US District Court for Massachusetts, where the initial trial was held.

The US Attorney's office said: "We are currently reviewing the opinion and are declining further comment at this time."

Tsarnaev was 19 years old when he and his brother, Tamerlan, who was 26 years old at the time, went to Boston's Boylston Street shortly before 3 p.m. on April 15, 2013, to carry out their plot. Surveillance video showed the brothers carrying the pressure cooker bombs in backpacks and moving through the crowd near the marathon finish line in what federal prosecutors called a coordinated attack.

Tamerlan set off the first bomb, a 6-quart pressure cooker that contained gunpowder, nails and BBs, prosecutors said. The bomb killed Campbell, a 29-year-old restaurant manager, and permanently injured several other people who lost their legs.

The second pressure cooker bomb, carried in by Dzhokhar, went off 12 seconds later and killed two people, Martin and Lu, a graduate student from China.

The bombings sparked a manhunt for days that shut down the city and resulted in wall-to-wall coverage of the search. The brothers, while on the run, killed Massachusetts Institute of Technology police officer Sean Collier. After they stole an SUV, the two were chased by police. Tamerlan died in an explosive firefight with police in nearby Watertown. Dzhokhar was arrested a day later.

Victims, families to relive another trial

The decision to order a new trial will be difficult for the families of victims, Boston Mayor Marty Walsh said after the decision came down on Friday.

"I think the concern that some families have had from the very beginning was that this day was going to come, where they would have to relive another trial, and you know they shouldn't have to relive another trial," Walsh said. "The only thing that I'll say is a positive ... this guy will never see the light of day again. He's going to live within those four walls. He got exactly what he deserved."

Shortly after Tsarnaev was found guilty on all counts, the parents of 8-year-old Martin Richard, who was killed in the bombing, publicly pleaded for prosecutors not to pursue the death sentence in the penalty phase of the trial.

"We hope our two remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring," the parents wrote in a column in The Boston Globe. "As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours. The minute the defendant fades from our newspapers and TV screens is the minute we begin the process of rebuilding our lives and our family."

CNN has reached out to the Richard family for comment on Friday's ruling.

A federal appeals court Friday threw out Dzhokhar Tsarnaev’s death sentence in the 2013 Boston Marathon bombing, saying the judge who oversaw the case did not adequately screen jurors for potential biases.

A three-judge panel of the 1st U.S. Circuit Court of Appeals ordered a new penalty-phase trial on whether the 27-year-old Tsarnaev should be executed for the attack that killed three people and wounded more than 260 others.

“But make no mistake: Dzhokhar will spend his remaining days locked up in prison, with the only matter remaining being whether he will die by execution,” Judge O. Rogeriee Thompson wrote in the ruling, more than six months after arguments were heard in the case.

An attorney for Tsarnaev said they are grateful for the court’s “straightforward and fair decision: if the government wishes to put someone to death, it must make its case to a fairly selected jury that is provided all relevant information.”

“It is now up to the government to determine whether to put the victims and Boston through a second trial, or to allow closure to this terrible tragedy by permitting a sentence of life without the possibility of release,” David Patton said in an email.

A spokesperson for the U.S. Attorney’s office in Boston said they were reviewing the opinion and had no immediate comment. Prosecutors could ask the full appeals court to hear the case or go straight to the U.S. Supreme Court.

The mother of Krystle Campbell, the 29-year-old killed in the attack, expressed outrage at the court’s decision.

“I just don’t understand it,” Patricia Campbell told The Boston Globe. “It’s just terrible that he’s allowed to live his life. It’s unfair. He didn’t wake up one morning and decide to do what he did. He planned it out. He did a vicious, ugly thing.”

Former Massachusetts Bay Transportation Authority officer Dic Donohue, who was severely injured in a gunfight with the brothers, said the ruling was not surprising to him.

“And in any case, he won’t be getting out and hasn’t been able to harm anyone since he was captured,” he tweeted.

Tsarnaev’s lawyers acknowledged at the beginning of his trial that he and his older brother, Tamerlan Tsarnaev, set off the two bombs at the marathon finish line. But they argued that Dzhokar Tsarnaev is less culpable than his brother, who they said was the mastermind behind the attack.

Tamerlan Tsarnaev died in a gunbattle with police a few days after the April 15, 2013, bombing. Dzhokar Tsarnaev is now behind bars at a high-security supermax prison in Florence, Colorado. Tsarnaev was convicted on 30 charges, including conspiracy and use of a weapon of mass destruction. The 1st Circuit upheld all but a few of the convictions.

Prosecutors told jurors that the men carried out the attack to punish the United States for its wars in Muslim countries. In the boat where Tsarnaev was found hiding, he had scrawled a confession that referred to the wars and wrote, among other things, “Stop killing our innocent people and we will stop.”

Tsarnaev’s attorneys [Cliff Gardner, Deirdre Von Dornum, Daniel Habib, Mia Eisner- Grynberg and Gail Johnson] identified a slew of issues with his trial, but said in a brief filed with the court that the “first fundamental error” was the judge’s refusal to move the case out of Boston. They also pointed to social media posts from two jurors suggesting they harbored strong opinions even before the 2015 trial started.

One juror had said in Twitter posts that that she was “locked down” with her family during the manhunt and retweeted another post calling Tsarnaev a “piece of garbage,” but later told the court she had not commented on the case or been asked to shelter in place, the defense said. On the day of Tsarnaev’s sentencing, the juror changed her Facebook profile picture to an image that said “BOSTON STRONG,” a rallying cry used in the wake of the bombing, the attorneys said. Tsarnaev’s lawyers pushed several times to move the trial out of the city where the bombs exploded, arguing the intense media scrutiny and number of people touched by the attack in Boston would taint the jury pool. But U.S. District Judge George O’Toole refused, saying he believed a fair and impartial jury could be found in the city.

The 1st Circuit said the “pervasive” media coverage featuring “bone-chilling still shots and videos” of the bombing and dayslong manhunt required the judge to run a jury selection process “sufficient to identify prejudice.” But O’Toole fell short, the judges found.

The judges said O’Toole deemed jurors who had already formed the opinion that Tsarnaev was guilty qualified “because they answered ‘yes’ to the question whether they could decide this high-profile case based on the evidence.” Yet he didn’t sufficiently dig into what jurors had read or heard about the case, it said.

“By not having the jurors identify what it was they already thought they knew about the case, the judge made it too difficult for himself and the parties to determine both the nature of any taint (e.g., whether the juror knew something prejudicial not to be conceded at trial) and the possible remedies for the taint,” Thompson wrote.

All three judges agreed that the death sentence should be tossed. In a concurring opinion, Judge Juan Torruella wrote that the case should never have been tried in Boston.

“If this case did not present a sufficient basis for a change of venue, there are no set of circumstances that will meet this standard, at least not in the First Circuit,” he wrote.

President Donald Trump weighed in on the ruling during an address to supporters on the tarmac of Tampa International Airport.

“I see in Boston, where you have the animal that killed so many people during the Boston Marathon,” Trump said. “They just sent this conviction for the death penalty back to the lower courts so they’ll argue about that for a long time. It’s ridiculous.”

An attorney representing Scott Peterson -- the Modesto fertilizer salesman who received the death penalty in 2004 for murdering his pregnant wife Laci Peterson -- made the case Tuesday his client didn't get a fair trial and deserves his conviction reversed.

Attorney Cliff Gardner made the points during a virtual hearing before California's Supreme Court as part of an automatic appeal granted in capitol cases. Peterson has been on California's Death Row at San Quentin prison since 2005. The prison sits a short distance from the Berkeley Marina where Peterson is alleged to have launched his boat just before Christmas Eve 2002 to dump his wife's body in the bay.

Gardner argued several points before court justices who listened remotely -- claiming one of the jurors lied in her jury questionnaire, jurors during the trial were allowed to conduct experiments on Peterson's boat without defense attorneys present, and that the case was prejudiced by extensive publicity.

"My position in a nutshell," Gardner said, "if this isn't an extreme case then what is?"

In court filings, Peterson's legal team alleges his high profile trial attorney Mark Geragos failed to call witnesses who could've shown Laci was walking the family dog through the neighborhood at the time when her husband was supposedly dumping her body in the bay -- just before Christmas Eve 2002.

The filings describe a mailman who told police he noticed the family dog was missing at the family's Modesto home -- suggesting Laci was walking him. The appeal also mentions a burglar who claimed he saw a homeless man pushing a woman into a van, which Peterson's defense team said could have been Laci.

During Tuesday's hearing, Donna Provenzano, an attorney with California's Attorney General's Office refuted Gardner's claim Peterson's trial was unfair.

"There is no contention in this appeal that that quantity of evidence was insufficient," Provenzano said. "Because it wasn't."

Even though Peterson was convicted in 2004, the appeal has dragged on as his family sought out an attorney to take the case. The trial, which was moved to Redwood City and lasted six months, gripped national headlines. Scott Peterson appeared on several talk shows including Diane Sawyer claiming his innocence.

The partial remains of Laci and the couple's unborn son Connor washed up in April of 2003, spurring investigators in their pursuit of Peterson as a suspect. He was arrested later that month near a golf course in La Jolla. He had dyed his hair blonde and was carrying camping equipment, $15 ,000 in cash and four cell phones.

Police said Peterson's motive was he was having an affair with Fresno hairstylist Amber Frey and wanted to be single.

Legal expert Dean Johnson who reviewed Peterson's appeal and watched Tuesday's hearing said Peterson's team is attempting to chip away at the evidence used to convict him.

"They are attacking the reliability of the prosecution's evidence," Johnson said. "They're saying that evidence simply wasn't sufficient to convict anybody."

Johnson said the defense is numerous issues with the hopes one will resound with the justices who will consider the appeal over the coming months. Depending on the issue, the court could overturn the death penalty or even reverse the entire conviction altogether.

"At this point there is a significant probability," Johnson said, "that we could see Scott Peterson II somewhere many years down the road."

A lawyer for Scott Peterson, convicted in 2004 of murdering his wife, Laci, and their unborn son, told the California Supreme Court on Tuesday that he was denied a fair trial because of massive publicity and a slew of legal errors made at trial.

During a hearing on his appeal, Cliff Gardner, Peterson’s lawyer, started his argument by noting that 12 prospective jurors were discharged after stating on written questionnaires that they opposed the death penalty but would be willing to impose it.

The prosecution has conceded that if the state high court finds that any one of those potential jurors was improperly excused, the court would have to overturn Peterson’s 2005 death sentence. Since his sentence, Peterson has been incarcerated at San Quentin prison’s death row.

Laci Peterson, 27, four weeks shy of giving birth, disappeared on Christmas Eve in 2002. Scott Peterson told police he had left their Modesto home at 9:30 a.m. that day and driven to a marina in Berkeley. He said he went fishing in his new boat, returned home late that afternoon and called his mother-in-law, telling her that his wife was missing.

Nearly four months later, Laci’s remains and the body of her unborn son, with its umbilical cord still attached, washed up on a rocky shore on San Francisco Bay. A passerby walking a dog found them a few miles from where Scott Peterson said he gone fishing.

Gardner argued during Tuesday’s hearing that the trial court also improperly allowed two jurors to climb into the 14-foot aluminum boat that police said Peterson used to dispose of his wife’s body in San Francisco Bay. The two jurors rocked it as it sat in a trailer to test its stability.

The trial judge erred again, Gardner said, when he insisted the prosecution be present if the defense were to take the boat out into San Francisco Bay to determine whether it would have capsized if Peterson had thrown over his wife’s anchored body overboard.

“The right to effective assistance of counsel includes the right to investigate your case in confidence,” argued Gardner, who has successfully represented other death row inmates.

After the judge insisted on the prosecution’s presence for the experiment, Peterson’s defense dropped the request.

Peterson’s trial was moved from Modesto, where he and Laci lived, to San Mateo County after a judge determined he could not get a fair trial in Modesto. After seeing the juror questionnaires in San Mateo County, Peterson’s defense filed another motion to move the trial to a different county. That motion was denied.

Gardner argued it should have been granted because the written questionnaires of 1,000 potential jurors showed that almost half had already decided what the verdict should be, and of those, more than 98% of them believed Peterson was guilty.

He said pretrial media coverage was massive and included information on evidence that was deemed inadmissible. A San Francisco radio station bought a billboard in San Mateo County, showing Peterson in a jail suit, and asking people to vote on whether he was “man” or a “monster.”

“In light of that extensive publicity,” Justice Goodwin Liu asked, “where should this case have been tried?”

Gardner conceded prospective jurors in all counties would have heard about the case but said surveys showed that fewer prospective jurors in the state’s larger counties, including Los Angeles, had made up their minds about Peterson’s guilt.

Liu was one of four justices who asked Gardner questions. None of the seven justices asked a lawyer representing the prosecution a single question, and none indicated how the court was likely to rule. Gardner asked the court to overturn both Peterson’s conviction and death sentence.

Deputy Atty. Gen. Donna M. Provenzano, representing the prosecution, countered that the law required the court to overturn only the death sentence if a prospective juror had been improperly dismissed.

“The prosecution marshaled and presented a mountain of evidence that pointed the finger of guilt squarely at Scott Peterson for the murder of his wife and their child,” she told the court.

She argued there was “no credible claim” that the any of the 12 jurors who decided Peterson’s fate were unfair or partial.

The judge’s requirement that the prosecution attend any demonstration involving Peterson’s boat was warranted because if the vessel had capsized, “a critical piece of evidence” would have been lost, she said.

She also defended the judge’s decision to allow two jurors into the boat while it sat on a trailer. The judge admonished the jurors, she said, to keep in mind that the stability of the boat would have been much different out in open water.

After Laci disappeared, a massive search was mounted to find her. Family and friends set up a command center at a downtown hotel and passed out 25,000 fliers to scores of volunteers. They appeared on shop windows and utility poles as far away as Los Angeles, Salt Lake City and Mexico.

Eventually, Amber Frey, a massage therapist who lived in Fresno, contacted the police. She and Peterson were dating. He had told her his wife had died, she said. She secretly recorded calls with him for the police.

Police arrested Peterson in San Diego County. He had bleached his hair and goatee and had $15,000 in cash and camping gear at the time.

Prosecutors told the jury that Peterson strangled or smothered his wife either on the night of Dec. 23, 2002, the following morning. He wrapped her corpse in a blue tarp and put her the back of his truck, got his boat, drove to Berkeley and dumped the body, weighted by anchors, in the bay, they said.

Mark Geragos, who defended Peterson at trial, countered that Laci was probably kidnapped by strangers, who dumped her in the bay to frame her husband.

The state Supreme Court will decide the appeal within a few months. The court will get another chance to examine the case when it decides a separate habeas corpus challenge, which is based on evidence that was not presented at trial. If Peterson loses that challenge, he can bring his case to federal court.

A lawyer for Scott Peterson, sentenced to death for the 2002 murders of his pregnant wife and their unborn child in a case that drew nationwide attention, told the California Supreme Court on Tuesday that Peterson could not have gotten a fair trial from a jury that was awash in hostile publicity.

After the trial was transferred from Stanislaus County, where the couple lived, to San Mateo County because of local outrage at the killings, a pretrial survey in the new venue showed that nearly all prospective jurors knew about the case and nearly half were convinced Peterson was guilty, attorney Cliff Gardner told the court.

“If this isn’t an extreme case, what is?” Gardner asked, arguing for a new trial on Peterson’s guilt and sentence. Although the 12 seated jurors were questioned by opposing lawyers, a process known as voir dire, and promised to be fair, he said, “when the community has been saturated by prejudicial publicity, we cannot rely on voir dire to obtain a fair jury.”

Although the case was well known throughout the state, he argued, the trial should have been transferred to Los Angeles County, where surveys showed much less of the public had made up its mind about Peterson’s guilt.

Under that standard, asked Justice Carol Corrigan, “don’t we begin to move in the direction that the court must select the venue?” Not in most cases, Gardner replied, but this was an extreme case, in which thousands of local residents outside the courthouse cheered enthusiastically when Peterson was convicted, and again when he was sentenced to death.

The prosecution’s lawyer, Deputy Attorney General Donna Provenzano, countered that Superior Court Judge Alfred Delucchi had taken all legally required steps to screen prospective jurors and order them to base their verdict on the evidence.

As Delucchi observed at the time, “the only place where this case could have gone where no one would have heard about it was Mars,” Provenzano said. “Yes, there was a lot of publicity, but it stopped at the courtroom doors, at the courthouse doors.”

The justices gave virtually no hint of their views during the one-hour hearing, conducted by teleconference, asking few questions of Gardner and none of Provenzano. A ruling is due within 90 days.

Peterson, now 47, was convicted in 2004 of murdering his wife, Laci Peterson, 27, who was eight months pregnant, and their unborn son, Connor, in their Modesto home. Their remains washed ashore four months later in Richmond, near an area where Peterson said he had gone fishing. A prosecution witness, Amber Frey, testified she had been having an affair with Peterson.

There was no physical evidence of Peterson’s guilt, however, and his lawyers have offered evidence in a separate proceeding before the court that they say would establish his innocence.

Another issue at Tuesday’s hearing was Delucchi’s dismissal of 13 prospective jurors who had declared their opposition to the death penalty. Gardner said the judge had failed to ask them, as the law requires, whether they could put their views aside and vote for a death sentence based on the evidence.

There was a “systematic exclusion of people who were opposed to the death penalty but would consider death” as a verdict, the defense lawyer said. “That results in an imbalanced jury.”

Provenzano said Delucchi had valid reasons for dismissing each of the prospective jurors, and cited comments by Peterson’s trial lawyer referring to the judge’s “Herculean efforts” to seat an impartial jury. But she acknowledged that under legal standards, the court must overturn Peterson’s death sentence if it finds that any jurors were improperly dismissed because of their views on capital punishment.

California conducted its last execution in 2006 and will not hold another during the term of Gov. Gavin Newsom, who has declared a moratorium on executions. The state has 727 inmates on Death Row.

The case is People vs. Peterson, S132449.

The lone conviction for an undocumented immigrant whose actions resulted in the shooting death of a 32-year-old woman in 2015 has been overturned by an appellate court in California.

A jury acquitted Jose Ines Garcia-Zarate, 46, in 2017 of first degree murder, second degree murder, involuntary manslaughter, and assault with a semiautomatic firearm for his role in the death of Kate Steinle.

Garcia-Zarate was convicted, however, on the charge of felon in possession of a firearm.

During jury deliberations, jury members asked the court for the definition of possession and if there was a time requirement for possession. [Defense counsel Cliff Gardner] argued during the appeal that the trial court failed to instruct the jury that it could acquit Garcia-Zarate because he only possessed the gun for a moment.

On Friday, the First Appellate Court of Appeals in California, in a 3-0 decision, agreed with that defense.

“Viewing the evidence in the light most favorable to the defense, as we must, we conclude the trial court erred in failing to give the momentary possession instruction. Because the error was prejudicial, we are compelled as a matter of law to reverse,” the court’s opinion says.

"These questions go to the heart of the momentary possession defense," Justice Sandra Margulies wrote. "The fact the jury asked whether there was a time requirement for possession suggests jurors were wrestling with how long defendant had the gun."

Steinle was walking with her family on Pier 14 on July 1, 2015, when she was hit by a bullet that had ricocheted off a concrete wall, hitting her in the back. Police said Garcia-Zarate knowingly fired the gun, then threw it in the water.

The defense successfully argued during his trail that the gun was wrapped in rags, which he picked up when it fired accidentally. He then, the defense said, threw it in the water so it would stop firing, according to court documents.

The gun Garcia-Zarate shot belonged to a U.S. Bureau of Land Management ranger who reported that the gun was stolen from his car in San Francisco.

Despite the overturned conviction, Garcia-Zarate will remain in jail on related federal charges.

"We pray that the U.S. Attorney's Office is successful in prosecuting Garcia-Zarate and that this menace will no longer be able to terrorize our streets,” the police association said.

The San Francisco Police Officers Association blasted the court's decision, saying this is “another episode" of San Francisco judges caring more about criminals than victims.

"This is yet another disgusting injustice perpetrated by a broken criminal justice system that is more intent on re-harming the victims of crime and their families than holding violent offenders accountable,” a statement from the police association read.

The San Francisco district attorney's office is weighing its next steps, according to The Associated Press.

The Steinle family did not immediately respond when asked for comment by ABC News.

A California state appeals court on Friday threw out the sole conviction against an immigrant who fatally shot a young woman on the San Francisco waterfront in 2015 in a case that sparked a national immigration debate.

Jose Inez Garcia-Zarate was acquitted of murder in the killing of Kate Steinle, who was walking on a pier with her father when she was struck by a bullet in the back in July 2015. The appeals court overturned a single conviction on a charge of being a felon in possession of a gun.

The case against Garcia-Zarate, who was in the country illegally and had been deported five times, was a regular talking point in Donald Trump’s 2016 presidential stump speeches.

The 1st District Court of Appeal overturned the gun conviction because the judge failed to give the jury the option of acquitting Garcia-Zarate on the theory he only possessed the weapon for a moment.

The ruling means prosecutors have the choice of retrying him in San Francisco Superior Court on the single count, but it may have little real impact because Garcia-Zarate remains in custody facing related federal charges.

Garcia-Zarate said he unwittingly picked up the gun wrapped in a T-shirt, and it fired accidentally. The bullet ricocheted off a concrete walkway and struck Steinle, who was with her father and a family friend.

The weapon used in the shooting belonged to a U.S. Bureau of Land Management ranger who reported it stolen from his car parked in San Francisco.

Defense lawyer [Cliff Gardner] argued on appeal that because Garcia-Zarate held the gun for such a short moment, he couldn’t be convicted of illegal gun possession.

Prosecutors argued that the jury instruction lapse was harmless because Garcia-Zarate admitted firing the gun and experts said he couldn’t do so without pulling the trigger.

The court disagreed, saying the jury’s verdict showed they rejected the prosecution theory that the shooting was intentional or even negligent and they had asked the judge to define possession and whether there was a time requirement for possession.

“These questions go to the heart of the momentary possession defense,” Justice Sandra Margulies wrote in the 3-0 decision. “The fact the jury asked whether there was a time requirement for possession suggests jurors were wrestling with how long defendant had the gun.”

Public defender Matt Gonzalez, who argued the case before the jury, said the improper instruction meant that Garcia-Zarate did not get a fair trial.

“This really wasn’t a close call. We were entitled to the instruction, and we should’ve had it. We thought that Mr. Garcia-Zarate would have been acquitted had the jury been instructed this way, so this is very gratifying for us,” he said. “He picked up an object not knowing what it was, it fired, and he threw it to the ground when it did fire.”

Garcia-Zarate, who was facing deportation proceedings at the time of his arrest in the killing, had been released by county jail officials three months before the tragic event.

Immigration and Customs Enforcement officials had requested that the Sheriff’s Department inform them of his release date and hold him until they could pick him up. But San Francisco’s sanctuary city policy barred local law enforcement officials from cooperating with most federal immigration investigations.

Trump referred to the shooting on the campaign trail as he railed on sanctuary cities and argued for tougher immigration policies.

After the acquittal in 2017, Trump called the verdict in “disgraceful” in a Tweet, and former U.S. Attorney General Jeff Sessions blamed the sanctuary city policy for Steinle’s death.

Garcia-Zarate was sentenced to three years in prison on the gun charge, but he ended up serving no additional time because of time he spent behind bars awaiting trial.

He was taken into custody, however, on federal charges, where he awaits trial Jan. 13 for gun possession.

Tony Serra, the attorney who is representing Garcia-Zarate on federal charges, said the state reversal means the district attorney will have the option of re-trying Garcia-Zarate on the gun charge.

“That kind of error causes reversals all the time. Then the prosecution has the prerogative of going again,” Serra said. “It’s going to be a big potential decision on what they’re going to do.”

Gonzalez said in a typical case it would not be likely for prosecutors to retry a defendant on a charge for which he cannot serve any more jail time, but “given the political nature of the case, it’s anybody’s guess as to what they will do.”

The San Francisco district attorney’s office was weighing its options, spokesman Alex Bastian said. The state attorney general’s office, which argued the case on appeal, also said it was reviewing the case Friday.

Gov. Gavin Newsom on Wednesday placed a moratorium on the death penalty in California, telling lawmakers and reporters that he could not face the prospect of overseeing the executions of dozens of inmates in quick succession.

California has 737 inmates on Death Row, although just 25 have exhausted all their appeals. With years-long litigation over the state’s lethal injection process potentially ending during his administration, Newsom said he wanted a more “enlightened” alternative to lining up “human beings every single day for execution for two-plus years” and risking that some of the condemned are innocent.

“I don’t know about you, but I can’t sign my name to that,” Newsom said in Sacramento at a press conference, where he was flanked by supportive Democratic legislators. “I can’t be party to that. I wouldn’t be able to sleep at night.”

Executive Order N-09-19 grants a reprieve to all inmates sentenced to death. It repeals the state’s challenged lethal injection protocol, and it immediately shuttered the death chambers at San Quentin State Prison.

But interviews with attorneys on both sides of the issue suggest the order actually changes little about capital punishment in California—except the frame of debate.

The death penalty is still on the books, approved by voters in 1978. The order only formalizes a de facto, 13-year moratorium that’s been in place since lawsuits over the lethal injection method, and the administrative process for its approval, have slogged on in courts.

Some county district attorneys have continued to pursue death penalty charges, adding to the backlog of condemned inmates. Voters, too, have rejected two initiatives in six years to repeal the death penalty and approved another one in 2016 aimed at speeding up the process. In fact, the Judicial Council on Friday will consider seven proposed rules for handling habeas corpus petitions to comply with Proposition 66.

“My capital cases are still capital cases. They’re still pending in the Supreme Court,” said Cliff Gardner, a Berkeley attorney and veteran of approximately 20 capital appeals and habeas petitions in multiple states.

Gardner called Newsom’s order “an extraordinary step,” and one that he hopes leads to another repeal measure on the 2020 ballot. But he doesn’t see an end to death penalty cases any time soon.

“As for prosecutors, I don’t think this will change anything that a Riverside County prosecutor will do or a Kern County prosecutor will do,” Gardner said.

The order does not commute any prisoners’ sentences. Newsom instead relies on Article 5, Section 8 of the state constitution, which grants governors the authority to issue reprieves “on conditions the governor deems proper.”

The order does not include additional funding, either, to increase the pool of lawyers who can assist death penalty defendants. Finding an adequate number of willing and qualified capital attorneys has been a challenge.

The Habeas Corpus Resource Center, which represents inmates in their habeas proceedings, issued a statement Wednesday hailing the governor’s actions but calling for a review of the state’s “dysfunctional” death penalty process.

“We look forward to working with the governor on determining whether it is possible to resolve all the deficiencies in California’s capital punishment system,” the statement said.

Kent Scheidegger, legal director of the pro-capital punishment Criminal Justice Legal Foundation, said Wednesday he had expected previous Gov. Jerry Brown to issue reprieves before leaving office. Scheidegger said he wasn’t shocked when Newsom, an open critic of the death penalty, announced Tuesday that he would.

Scheidegger said there may be a legal challenge under Proposition 66 to Newsom’s rescission of the lethal injection protocol and to his dismantling of the death chamber. But the moratorium, he said, is on solid legal footing.

“It’s gratuitous cruelty to the families of victims,” Scheidegger said. “We’re fighting this very long legal battle and we had a light at the end of the tunnel ... It was pulled out from underneath us.”

Newsom also has the power to commute sentences. But he can only do so unilaterally for inmates convicted of just one felony.

The California Supreme Court must approve of commutations involving inmates with two or more separate felonies. After complaints that the court’s guidelines for approval were opaque, the justices last year issued a nine-page minute order laying out their role in considering commutation and pardon recommendations.

Still, in the final days of Brown’s tenure, the court rejected 10 of his clemency requests without explanation.

“We need to understand that more fully before we move forward with next steps, potentially around commutation,” Newsom said Wednesday.

Democratic lawmakers Wednesday also introduced legislation that would put the death penalty issue before voters again in November 2020. Michael Ramos, the former district attorney of San Bernardino County and a leader of the Proposition 66 campaign, said death penalty proponents were discussing a possible ballot measure “as we speak.”

Ramos, like Gardner, said he expects county prosecutors to continue charging death penalty cases despite the executive order. “I think that’s going to be another issue they’ll have to deal with,” Ramos said. “But in the appropriate cases, that’s the only path to justice.”

The lawyer for the undocumented immigrant who was found not guilty in November 2017 for the 2015 fatal shooting of a woman on the San Francisco pier-- but convicted for illegally possessing a weapon-- has appealed the conviction, arguing that he had fired the gun by accident and "momentary possession" of a gun is not a crime.

Jose Ines Garcia Zarate, 46, a previous felon and undocumented immigrant who served nearly two years for felony re-entry into the U.S. from Mexico, was sentenced to three years in prison for the gun conviction while he awaits deportation.

In July 2015, Kate Steinle, 32, was walking on San Francisco pier with her father when a bullet ricocheted off the pier’s concrete floor and fatally struck her in the back. Garcia Zarate was reportedly holding the gun after it "unexpectedly" went off and threw it in the bay, prosecutors said.

Garcia Zarate was acquitted of murder, manslaughter and assault charges, but convicted of illegally possessing a firearm. The case sparked a national fervor about illegal immigration run amok, with President Donald Trump calling the verdict “a complete travesty of justice.”

The San Francisco Chronicle reported that Garcia Zarate’s lawyer, Cliff Gardner, filed a motion on Friday with the First District Court of Appeal in San Francisco, asking the court to overturn his client’s conviction and order a new trial because Superior Court Judge Samuel Feng did not instruct the jury that “momentary possession” of a gun is not a crime, and the jury had no choice but to convict Garcia Zarate.

The man who was convicted of possessing the gun that killed Kate Steinle on a San Francisco pier in 2015 has appealed his conviction, claiming that the trial judge failed to give a key jury instruction.

Jose Ines Garcia Zarate was convicted in San Francisco Superior Court in 2017 of being an ex-felon in possession of a gun. The jury acquitted him of the murder of Steinle, who was killed on July 1, 2015, by a ricocheting bullet from a gun held by Zarate.

Zarate was sentenced in January 2018 to three years in prison. A Mexican citizen, he was in the United States illegally at the time of the shooting and had been deported five times.

In an appeal filed last week with the state Court of Appeal in San Francisco, Zarate argues that his rights were violated because trial judge Samuel Feng failed to give the jury an instruction on the concept of momentary possession.

That instruction advises jurors that gun possession is not illegal if it was for only “a momentary or transitory period” and for the purpose of disposing of the firearm.

Zarate contends that he picked up a package wrapped in rags under a chair at the pier and did not know he had a gun until it fired accidentally. He then immediately threw the gun into the bay.

The gun had been stolen from the car of a U.S. Bureau of Land Management law enforcement officer.

Zarate’s appeal attorney, Cliff Gardner, wrote that because that claim “was the central theory of defense, the trial court was required to instruct on the defense of transitory possession.”

The appeal asks for reversal of his conviction and a new trial. A hearing on the appeal has not yet been set. The next step in the case will be the filing of a prosecution response.

Separately, Zarate faces two federal charges of being an ex-felon and an undocumented person in possession of a gun.

He claims that a federal trial on those charges would amount to unconstitutional double jeopardy, or being tried twice for the same crime.
U.S. District Judge Vince Chhabria of San Francisco has postponed the federal trial until the U.S. Supreme Court rules on a similar case from Alabama concerning double jeopardy.

Copyright © 2019 by Bay City News, Inc

An undocumented immigrant who was acquitted in the shooting death of a San Francisco woman was seeking to overturn his weapons conviction.

Jose Ines Garcia Zarate, 46, was found not guilty of murder in the death of Kate Steinle in November 2017. The jury found that Garcia Zarate “did not commit a willful act in firing the gun—that it went off accidentally just as the defense contended,” his attorney, Cliff Gardner, said in a filing on Friday.

Gardner filed an appeal with the First District Court of Appeal in San Francisco in the hopes of overturning his client’s conviction for illegally possessing the fatal weapon in Steinle’s death. Garcia Zarate’s defense team argued that momentary and accidental possession of a gun was not a crime, the San Francisco Chronicle reported.

In the appeal, Gardner said that the jury had no choice but to convict his client of illegal firearms possession by a previously convicted felon after Superior Court Judge Samuel Feng failed to tell jurors that “momentary possession” of a gun was not a crime. Gardner asked the appeals court to overturn Garcia Zarate’s conviction and to order another trial.

Garcia Zarate claimed that he picked up the gun, which was wrapped in rags under a swivel chair he was sitting on at the pier, but that he did not know it was a weapon. He only realized he was holding a gun when it fired accidentally and he threw it in the bay immediately afterwards.

The bullet ricocheted off Pier 14’s concrete floor and fatally struck 32-year-old Steinle, who was walking on the pier with her father in July 2015. Garcia Zarate was sentenced to three years in prison for gun possession in January 2018 and has been in prison awaiting deportation.

At the time of the shooting, Garcia Zarate had been deported five times and as wanted for a sixth deportation proceeding, the Associated Press reported. He had been released from jail despite a request from federal immigration officials to detain him for deportation proceedings.

San Francisco’s sheriff claimed the city’s sanctuary city policy limited local cooperation with immigration enforcement.

The jury’s verdict was called a “complete travesty of justice” by President Donald Trump, the San Francisco Chronicle reported. The Trump administration filed federal gun charges against Garcia Zarate, which could extend his time in prison by 10 years before his deportation.

The undocumented immigrant acquitted by a jury of murder in the shooting death of Kate Steinle on a San Francisco pier, in a case that touched off a furor about immigration and sanctuary laws, has appealed his conviction for illegally possessing the fatal weapon, saying momentary and accidental possession of a gun is not a crime.

The November 2017 verdict in the case of Jose Ines Garcia Zarate showed that jurors believed he “did not commit a willful act in firing the gun — that it went off accidentally just as the defense contended,” Garcia Zarate’s lawyer, Cliff Gardner, said in a filing Friday with the First District Court of Appeal in San Francisco.

Because Superior Court Judge Samuel Feng refused to instruct the jury that “momentary possession” of a gun is not a crime, the jury had no choice but to convict Garcia Zarate of illegal firearms possession by a previously convicted felon, Gardner said. He asked the court to overturn the conviction and order a new trial.

Garcia Zarate, 46, was sentenced to prison on the gun conviction and remains jailed to await deportation and possible federal prosecution.

Steinle, 32, was fatally wounded as she walked with her father on Pier 14 in July 2015. The bullet bounced off the pier’s concrete floor before striking her in the back. Garcia Zarate, who was holding the gun when it went off, had been released from federal prison four months earlier after serving 46 months for felony re-entry to the U.S. following a previous deportation to Mexico.

Immigration officials had transferred him to San Francisco County Jail because of a local warrant alleging he had fled to avoid marijuana charges in 1995, but city prosecutors dropped that case, and the Sheriff’s Department then released Garcia Zarate despite a federal request to hold him for deportation. Then-Sheriff Ross Mirkarimi said he interpreted the city’s sanctuary policy, which limited local cooperation with immigration enforcement, as barring him from notifying federal agents.

The handgun used in the Steinle killing had been stolen four days earlier from the car of a U.S. Bureau of Land Management ranger. It has not been established who stole the weapon. Prosecutors contended Garcia Zarate had brought the weapon to the site of the shooting, but his lawyers said it was wrapped in a T-shirt or cloth that he picked up from underneath a bench, unaware of its contents, and threw it in the bay after it unexpectedly went off.

After nearly six days of deliberations, the jury acquitted Garcia Zarate of murder, manslaughter and assault charges, and convicted him only of illegally possessing the gun. Garcia Zarate was sentenced to three years in prison, a term he has already served, but he remains in jail awaiting further proceedings.

President Trump called the verdict a “complete travesty of justice,” and his administration filed federal gun charges that could extend Garcia Zarate’s confinement by up to 10 years before he is deported. A federal judge in San Francisco has postponed his trial, however, to await a U.S. Supreme Court ruling on federal prosecutors’ authority to file charges that duplicate a state prosecution.

In appealing the gun conviction, Gardner, the defense lawyer, noted that jurors had asked Feng during deliberations whether knowingly possessing a gun was enough for a conviction and whether there was “any time requirement for possession.”

Gardner said the judge should have instructed the jury, as the defense requested, that Garcia Zarate was not guilty if he had possessed the gun “for a momentary or transitory period,” solely to dispose of it, and had not intended to prevent police from seizing it.

Feng rejected that instruction, citing evidence that Garcia Zarate had told a police officer he fired the gun. But Gardner said there was strong evidence that “he disposed of the firearm as soon as he learned what it was.”

It’s illegal to dismiss prospective jurors because of their race. But civil rights advocates say some California prosecutors have found a way to keep blacks off their juries without using overtly racial criteria.

You might call it the “O.J. strategy.”

The first step is asking prospective jurors how they felt about the 1995 acquittal of former football star O.J. Simpson, who is African American, in the killing of his ex-wife and her friend, both of them white.

The next step is to dismiss black jurors who agreed with the verdict, while offering a non-racial explanation that satisfies the courts.

Attorneys for two men on California Death Row say their clients were denied a fair trial in the 1990s, because prosecutors used the O.J. question as a “proxy for race” to cull black people from juries. Both of the convicted men are black, and both of the victims were white.

Lawyers for one of the men are seeking review in the U.S. Supreme Court after California’s Supreme Court upheld his death sentence without deciding whether the Simpson question was a tool for racial exclusion. Attorneys in the second case want the state’s high court to finally address that issue in their upcoming hearing.

Floyd Daniel Smith is on Death Row for the 1994 murder of a white teenager in San Bernardino County. His attorneys argue that prosecutors at the time of the trial unconstitutionally removed black people from the jury pool, based on a question about the O.J. Simpson verdict.

Johnny Duane Miles is on Death Row for the 1992 murder of rape counselor Nancy Willem in San Bernardino County. His attorneys are arguing that prosecutors unconstitutionally removed black people from the jury

California courts have banned racial discrimination in jury selection since 1978, eight years before the U.S. Supreme Court reached the same conclusion as a matter of constitutional law. But defense lawyers, joined by the NAACP, say some San Bernardino County prosecutors used the O.J. strategy as a thinly veiled loophole.

“These are cases that were tried in the mid- to late ’90s, when O.J. was still really fresh,” said Alexis Hoag, a senior counsel with the NAACP Legal Defense and Educational Fund who has filed a brief with the California Supreme Court. Using the O.J. question responses to strike jurors, she said, was “something that the D.A.s inserted into these cases, in what I argue was a very meaningful and intentional way.”

Simpson’s case had strong racial overtones, including testimony about racist slurs by a white Los Angeles police detective who investigated the killings. Soon after the trial, a CBS poll found that 79 percent of white respondents, but only 22 percent of blacks, believed Simpson was guilty. More recent polls have found that the racial gap has narrowed but hasn’t disappeared.

If the Simpson question is a stand-in for race, it isn’t the only one.

In separate cases, federal and state courts in California have found racial discrimination by prosecutors who said they had removed jurors because they lived in the heavily black communities of Compton and Inglewood in Los Angeles County.

And last year, the Georgia Court of Appeals overturned a black man’s robbery conviction because the prosecutor said one reason he dismissed a black juror was that the man had a mouth full of gold teeth. That is “a cultural proxy associated with African Americans,” the court majority said.

So far, though, no court majority opinions are known to have flagged jury questioning about O.J. Simpson as a veiled form of racism.

The California Supreme Court passed up a chance to address the issue in May, when it considered the death sentence of Floyd Daniel Smith, a black man convicted by a jury with no black members for the 1994 murder of a white teenager in San Bernardino County. Prosecutors at Smith’s trial asked prospective jurors whether they were upset about the Simpson verdict, and removed all four blacks — each of whom said they weren’t upset. But several non-black jurors who also said they weren’t upset about the verdict were seated without complaint.

In arguing to the court’s justices, Smith’s lawyers claimed racism in jury selection but didn’t focus on the Simpson issue. Neither did Justice Leondra Kruger, the court’s only African American member, who wrote the unanimous ruling upholding Smith’s conviction and sentence. She said prosecutors had offered adequate non-racial explanations for the prospective jurors’ dismissals, which included reservations about the death penalty, one juror’s casual clothing, and the similarities in the evidence against Simpson and Smith.

Smith’s lawyers have appealed to the U.S. Supreme Court.

In three similar cases since 2010, California’s high court has upheld death sentences without deciding whether prosecutors had engaged in racial discrimination by dismissing black jurors who agreed with the Simpson verdict.

In another capital case that awaits a hearing before the California court, defense lawyers and their allies are asking the justices to finally decide whether removing black jurors based on their views of the O.J. Simpson trial is truly race-neutral.

Johnny Duane Miles, a black man, was convicted by a jury with no black members and sentenced to death in 1999 for the 1992 rape and murder of a white woman, Nancy Willem, a 35-year-old rape counselor, in Rialto (San Bernardino County). Prosecutors asked prospective jurors whether they were upset about the Simpson verdict and dismissed two African Americans who said they weren’t. Two other jurors who gave the same answer, one white and one Latino, were both allowed to serve, one as a juror and one as an alternate, or backup. The alternates also included one African American.

Prosecutors denied racial bias, saying they removed the black jurors because they seemed skeptical of the types of evidence presented against Simpson, including DNA evidence, which was also used against Miles.

Those explanations were “pretexts for discrimination,” Miles’ lawyer, Cliff Gardner, said in a state Supreme Court filing. He said both prospective jurors had backgrounds that prosecutors usually find appealing. One had been a Marine who was married to a correctional officer and believed that prosecutors were trying “to protect the community.” The other was the son of a federal drug agent and had considered law enforcement as a career. And both said they support the death penalty.

“Especially now, courts cannot sit on the sidelines when the government makes decisions based on race,” Gardner told The Chronicle. “The O.J. Simpson question is clever, but it is simply another way to do just that.”

NAACP lawyers have filed arguments in Miles’ support, saying the prosecutors’ selective dismissal of black jurors who supported the Simpson verdict left “no doubt that the O.J. Simpson question was a tool for racial discrimination.”

“This court should decide this issue because it’s recurring,” the lawyers said, citing the earlier capital cases in which prospective jurors were asked about Simpson. “A decision on this issue will hopefully forestall prosecutors from using this invidious ... discrimination tactic again.”

In response, Attorney General Xavier Becerra’s office, representing the prosecution, contended the Simpson case, when it was fresh in jurors’ minds, was a legitimate, non-racial topic for pretrial questioning.

“The Simpson case was not all about race,” Deputy Attorney General Seth Friedman said in a court filing. He said the trial had divided the public on several issues relevant to future cases, including “the reputation and trustworthiness of police officers” and allegations that police planted evidence to frame defendants.

And although polls still find whites more likely than blacks to believe that Simpson had committed the murders, Friedman said, a Washington Post-ABC News poll in 2015 reported 57 percent of African American respondents now thought the former football star was guilty.

“That more blacks might be accepting of the Simpson verdict than members of other groups does not establish that the criterion is not race-neutral,” Friedman said.

Hoag, the NAACP attorney, said it is puzzling that the attorney general’s office would highlight a poll taken 16 years after Miles’ conviction.

“We were very intentional in our amicus (brief) about timeliness,” she said. “National and California newspaper articles in 1999 underscore how the views of the (1995 O.J. Simpson) verdict were still divided along racial lines.”

As the fifth anniversary of the Boston Marathon bombing comes and goes, we can’t help but wonder what Dzhokhar Tsarnaev might have to say for himself — if he were allowed to speak.

For one thing, we’d like to ask him if he could fill in some details about his brother Tamerlan’s mysterious activities in the years leading up to the bombings — much of which the government continues to withhold as “classified.”

Dzhokhar is being held at the maximum-security federal penitentiary in Florence, Colorado — known as the “Alcatraz of the Rockies” — under extreme confinement conditions called Special Administrative Measures (SAMs). He was convicted and sentenced to death in 2015 for his role in the bombing near the finish line of the 2013 Boston Marathon. Tsarnaev is appealing his federal death penalty conviction. (All death penalty convictions are automatically appealed.)

Essentially a form of solitary confinement, SAMs prevent inmates from communicating with all but a few pre-approved individuals. Tsarnaev is not even allowed to communicate with other inmates in the facility. The government justifies the imposition of SAMs by pointing to the possibility that Tsarnaev could try to secretly communicate with criminal compatriots or incite violence of one kind or another.

It’s not clear who that might be, since the government insists that Dzhokhar and his brother Tamerlan acted on their own.

The few statements Dzhokhar made that we heard about actually sounded apologetic and remorseful in nature.

For instance, Sister Helen Prejean, Catholic nun and death penalty opponent, testified at trial that Tsarnaev “had pain in [his voice] when he said what he did, about how nobody deserves that. I think he was taking it in and he was genuinely sorry for what he did.” Prejean had met with Tsarnaev in jail multiple times over the course of two months.

In a final statement in court, Tsarnaev said he “would like to now apologize to the victims, to the survivors,” and, “I am sorry for the lives I have taken, for the suffering that I have caused you, for the damage I have done — irreparable damage.”

Does this sound like what one would expect from an extremist hell-bent on inciting violence?

In justifying the imposition of the SAMs, prosecutors cited, in part, a phone conversation the defendant’s mother recorded and then played for the public “in an apparent effort to engender sympathy,” they wrote. The defense team characterized that concern as “telling.”

“While the government may not want anyone to feel ‘sympathy’ for Mr. Tsarnaev,” a defense motion reads, “that is not a proper basis to impose SAMs.”

Nonetheless, Tsarnaev can’t speak with members of the news media, although the reasoning for that comes across as a little overwrought:

Communication with the media could pose a substantial risk to public safety if the inmate advocates terrorist, criminal, and/or violent offenses, or if he makes statements designed to incite such acts. Based upon the inmate’s past behavior, I believe that it would be unwise to wait until after the inmate solicits or attempts to arrange a violent or terrorist act to justify such media restrictions.

The warden at the US Penitentiary in Florence recently refused our third interview request citing the SAMs. We’ve written previously about our efforts to interview Tsarnaev. Each time the request was denied. A second letter to Dzhokhar was also recently returned — unopened this time.

The warden suggested we take up the matter with “the US Attorney’s Office in the district he was sentenced in,” i.e. Boston. The US Attorney’s office in Boston has not responded.

Ironically, when we previously requested the underlying justification for the SAMs from the Department of Justice (DOJ), it refused to provide it because to “confirm or deny” the mere existence of SAMs would be a violation of Tsarnaev’s privacy.

Tsarnaev’s appellate team has until August to present its written brief opposing the decision of the lower court. A brief is the legal team’s argument about why the trial court’s decision was legally incorrect. The government then files its own brief responding to the appellant’s brief — which the appellant then responds to in a final brief. At that point the case will be fully “briefed” and would then move on to an oral arguments stage.

As far as how long all this will take? “That requires a bit of a crystal ball,” Cliff Gardner, one of Dzhokhar’s attorneys wrote in an email to WhoWhatWhy. Gardner could not guess how long it will take the government to file its brief, but did say that it is certain to be “long and complex.”

Whenever the actual appeal trial finally gets underway, the government will still be firmly in control of the narrative that is fed to the public about Dzhokhar.

Update notice, 4/17/2018, 9:55 pm: Boston US Atty.’s Office spokesperson Christina Dilorio-Sterling responded to our request to reconsider the provision of the SAMs that prevents members of the media from interviewing Tsarnaev. She wrote: “The Attorney General has determined that Special Administrative Measures (SAMs) are warranted to safeguard national security and the safety of individuals and the community. I cannot get into any further detail, and I am sorry that we are unable to assist any further.”

The Third District Court of Appeal yesterday reversed a conviction on two counts of second degree murder based on incompetence of counsel and directed the court's clerk/administrator to forward a copy of the opinion to the State Bar for possible disciplinary action.

It was the second time that the panel has referred Stockton attorney Ralph Cingcon to the State Bar based on inadequate pretrial efforts to muster expert evidence. In contrast to the denigration of Cingcon by Justice Elana J. Duarte, in her opinion for the appeals court, was effusive praise of him by the trial judge, San Joaquin Superior Court Judge William Johnson.

In the present case, Cingcon's client, Zane Ashik Ali, was convicted by a jury in accordance with the prosecution's theory that he was driving while drunk, resulting in a crash in which his two passengers were killed.

The defense was that it was one of the passengers who was at the wheel.

Following the conviction, new counsel, Edward Swanson and Cliff Gardner, substituted in as Ali's counsel, made a new-trial motion based on deficiencies in Cingcon's representation. They pointed to the availability of testimony by two accident reconstruction experts as to the likelihood that one of the passengers was, in fact, the driver.

Johnson denied the motion, saying: "Mr. Cingcon is a very experienced attorney. So, in looking at the books that he looked at, while he did not have an expert at his shoulder, he did review numerous books and has great trial experience. He decided to utilize the prosecution's expert, which is done routinely in this court. I see it done all the time with defense attorneys using the prosecution witness to make their points."

The judge indicated he was unimpressed by the experts' version of what happened, and noted that there was an eye witness who saw Ali in the driver's seat earlier.

Johnson said: "I do not believe that there is a lack of performance by Mr. Cingcon, therefore, I do not believe also that there was prejudice suffered by Mr. Ali, so I'm going to deny the motion."

He later clarified: "I think the evidence was overwhelming that Mr. Ali was the driver based on his testimony."

Disagreeing, Duarte wrote: "The trial court found Cingcon was "very experienced" and "has great trial experience." This factual finding is well-supported by the record. But the issue is not whether Cingcon is a good criminal defense attorney in general. The trial court's job (in the first instance) and our job (on review) is to determine whether in this particular case Cingcon did or did not provide constitutionally effective counsel. That an attorney has garnered many laurels over a long career does not mean he can rest on them in a given case."

With respect to Johnson's point that Cingcon had done some reading, she scoffed that this was no substitute for putting on expert testimony remarking: "[T]he fact that Cingcon reviewed parts of some books about accident reconstruction does not support the conclusion that he provided effective representation in this case."

Duarte dismissed the significance of it being common practice for defense lawyers to rely on cross-examining experts for the other side. She said: "As the Attorney General concedes, the expert trial evidence did not attempt to answer the one critical issue at trial: "Who was driving?" This undermines the view that Cingcon's decision not to ask the prosecution witnesses who was driving was tactical. He could not ask them that question because none were qualified answer it. In short, Cingcon's plan to rely on the People's experts under these specific circumstances was not an informed, rational, or tactical plan."

What was needed by the defense, Duarte said, was the sort of expert testimony that Swanson and Gardner proposed: based on "kinematics." She defined that as "body movement during crashes."

The jurist decried Cingcon's failure to produce such testimony, commenting: "In the nearly three years Cingcon had this case, he never talked to any kinematics expert - or any expert - on the merits.[T]he use of such testimony is not novel. Nor did Cingcon claim he was hampered by lack of funding. Therefore, had Cingcon looked for such evidence, he would have found it and could have presented it at trial."

She declared that Johnson's "conclusion that Cingcon performed within the standard of care cannot be squared with the record."

More, she said, is required than a showing of faulty performance to establish inadequate assistance of counsel. There must be, Duarte recited, prejudice, declaring:

"The prosecutor had emphasized in closing argument at trial the lack of 'kinetic' experts to support defendant's story. This was proper argument based on the evidence, but it highlights the prejudice caused by Cingcon's failure to consult a kinematics expert. Such testimony quite probably would have made a difference at trial."

In a footnote, Duarte told of the Third District's unpublished 2014 opinion in In re Gorman in which a murder conviction was reversed. There, she said, "we also found IAC based on Cingcon's failure to conduct an adequate pretrial investigation."

She went on to note: "Gorman is irrelevant to our legal analysis, but is relevant to our referral: Cingcon testified at the new trial hearing in this case that the State Bar 'summarily dismissed' our prior referral in Gorman. A thorough review by the State Bar of this court's second referral in three years is merited, regardless if the outcome. The cost to taxpayers and damage to public confidence in the judicial system by IAC reversals of serious criminal cases is incalculable."

That opinion was also written by Duarte. There, as in Ali's case, Cliff Gardner was the defendant's attorney in the Court of Appeal.

A promotional website says of Cingcon: "Ralph Cingcon, Attorney At Law, A Criminal Defense Lawyer. Some times referred to as Stockton's Silver Fox. He was established in 1980 as Stockton's the first Black Assistant District Attorney. He tried more cases than anyone in Stockton history. Incorporated in Stockton California, he has many accolades. Attorney Cingcon has an excellent work ethic, his experience and career history precedes him."

Yesterday's decision came in People v. Ali, C080387.

Copyright 2017, Metropolitan News Company

The acclaimed antideath penalty defender who opened her argument for sparing the life of Boston Marathon bomber Dzholdrnr Tsarnaev with the shocking declaration, "It was him," now wants off his case, telling a federal court his appeal "would benefit from a fresh look."

Attorney Judy Clarke's legal acumen kept the likes of Olympic Park bomber Eric Rudolph and Unabomber Ted Kaczynski from facing execution before a jury sentenced Tsarnaev, 23, to die. She has asked the U.S. Court of Appeals for the First Circuit in Boston to replace her with fellow California legal eagle Clifford Gardner. Gardner's infamous clients include Scott Peterson, who is appealing his death sentence for the 2002 murder of his pregnant wife, Laci.

"This substitution would provide Mr. Tsarnaev with high-quality and cost-effective appellate representation," the motion to remove Clarke reads. "Mr. Gardner ... is one of the most experienced capital appellate and federal appellate lawyers in the United States. He has particular expertise representing high-profile defendants whose trial court proceedings resulted in voluminous, complicated records."

Tsarnaev has been held in the federal Supermax prison in Colorado since his trial wrapped in 2015. He signed off on the substitution of Gardner for Clarke Jan. 18 in a consent document filed with the court Friday.

His defense team, led by Clarke, filed its notice of appeal one year ago yesterday, but still has not submitted a brief stating on what grounds it believes Tsarnaev's conviction and capital punishment should be overturned.

In a ruling that could signal tougher scrutiny of capital cases by California's highest court, Gov. Jerry Brown's three appointees have joined a fourth justice to overturn a death sentence that a previous majority had voted to uphold.

Monday's 4-3 vote by the state Supreme Court granted a new penalty trial to Gary Grimes, to determine whether he should be resentenced to death or to life in prison without parole for his role in the murder of a 98-year-old Shasta County woman. State voters could take that issue off the table in November if they approve Proposition 62, which would repeal the state's death penalty law and resentence the nearly 750 Death Row inmates to life without parole.

In the meantime, however, the ruling suggests a shift on a court in which the death penalty has been an overriding issue for nearly four decades.

After legislators passed a death penalty law in 1977 and voters expanded it in 1988, the court under Chief Justice Rose Bird reversed nearly every death sentence it considered until 1986. The voters removed Bird and two other Brown appointees, Cruz Reynoso and Joseph Grodin, and the newly composed court became one of the nation's leaders in upholding death sentences, with an affirmance rate that rose above 90 percent. It has also had a majority of Republican appointees for nearly three decades.

The court has become less conservative on social issues over the years, as illustrated by a May 2008 ruling granting same-sex couples the right to marry. But it has continued to uphold a large majority of the death sentences it has considered until six weeks ago. Since then, the court has overturned four out of seven death verdicts.

The first three reversals were unanimous, based on findings that the trial judge had wrongly dismissed jurors or interfered with jury deliberations.

In Grimes' case, however, the new ruling was due to a change in the court's membership, Brown's appointments of Justices Mariano-Florentino Cuéllar and Leondra Kruger, who joined the Democratic governor's previous appointee, Justice Goodwin Liu.

Grimes [represented in the Supreme Court by Berkeley lawyer Cliff Gardner] was sentenced to death for allegedly ordering the murder of Betty Bone, who was stabbed and strangled by burglars who broke into her home in 1995. Prosecution witnesses said the killer was 20-year-old John Morris, who committed suicide in jail the day after his arrest.

Grimes admitted taking part in the burglary, but denied any role in the murder. Prosecution witnesses said he had directed the killing, watched it take place and laughed about it with Morris afterward.

The disputed issue in the case was the trial judge's refusal to allow defense witnesses to testify that Morris told them Grimes had taken no part in the killing and had been shocked to see it happen.

A different 4-3 court majority, led by Chief Justice Tani Cantil-Sakauye, upheld Grimes' death sentence in January 2015, saying the testimony was properly excluded as secondhand hearsay accounts by other witnesses and would not have affected the verdict, because the prosecutor had never claimed Grimes was the killer.

But Cuéllar and Kruger joined the court before the ruling became final and voted to reconsider it, joining two of the dissenting justices, Liu and Kathryn Mickle Werdegar, a generally moderate appointee of Republican Gov. Pete Wilson.

On Monday, a new majority led by Kruger upheld Grimes' murder conviction but reversed his death sentence.

Kruger said Morris' reported statements about Grimes should have been allowed into evidence because the killer appeared to be taking responsibility rather than blaming someone else, a type of hearsay that is legally admissible. She said the statements might have persuaded one or more jurors to spare Grimes' life.

In dissent, Cantil-Sakauye said the ruling "opens the door to potentially untrustworthy hearsay" in future cases, and also argued that the evidence would not have affected the jury's decision.

Matt Cherry, executive director of Death Penalty Focus, a San Francisco nonprofit that opposes capital punishment, said the ruling and other recent decisions may reflect "a newfound courage" on the court.

Kent Scheidegger, legal director of the pro-capital punishment Criminal Justice Legal Foundation, responded, "It's a little premature to be calling it a trend for one case."

The case is People vs. Grimes, S076339.

The state Supreme Court has set aside the death penalty against Gary Lee Grimes by the slimmest of majorities, more than two decades after the defendant was sentenced.

Monday's 4-3 decision is a remarkable turnaround for Grimes, considering the high court just last year had affirmed the death penalty against him.

The about-face was prompted by the addition of two justices nominated by Gov. Jerry Brown, Mariano-Florentino Cuellar and Leondra R. Kruger.

Cuellar succeeded conservative stalwart Marvin R. Baxter, while Kruger took the seat vacated by Joyce L. Kennard.

Grimes and appointed counsel Cliff Gardner successfully petitioned the high court for rehearing within days of Cuellar and Kruger officially donning their robes.

Cuellar and Kruger joined another Brown nominee, Goodwin H. Liu, and the longest tenured member of the high court, Kathryn M. Werdegar, in support of rehearing the case.

The same group of four justices joined vacated the death penalty against Grimes in Monday's decision. Kruger wrote the majority opinion.

"It's never too late to reach the right decision and I'm glad they did," said Gardner, a Berkeley-based practitioner who has argued for Grimes three times before the Supreme Court. "It shows that in our profession, you need to persevere."

Grimes, convicted of murdering 98-year-old Betty Bone during a robbery and burglary in 1995, claimed a trial judge wrongly excluded statements by an accomplice that could have helped Grimes avoid a capital sentence.

The accomplice, John Morris, told acquaintances that Grimes was in another part of the house when Morris killed Bone.

On Monday, the high court majority found that the trial court was incorrect to exclude the statements made by Morris. The majority also concluded such an error was prejudicial against Grimes.

"We therefore conclude that Morris's statements... that he acted alone and that defendant and [accomplice Patrick James] Wilson appeared startled when [Morris] killed Bone were so disserving to his interests that a reasonable person in his position would not have made them unless they were true," Kruger wrote.

The majority also held that Grimes was a major participant in the crimes against Bone and affirmed the murder conviction with robbery and burglary special circumstances. People v. Grimes, 2016 DJDAR 8698.

Garner said that the case will return to Shasta County Superior Court unless prosecutors ask the justices to rehear the case.

If prosecutors wish to seek capital punishment against Grimes, they would have to retry the penalty phase. If no retrial is sought, Grimes would face life in prison without parole.

"The actual killer told people he was acting alone," Gardner said. "The jury considering whether [Grimes] should live or die should take into account whether he ordered the killing or whether he was surprised. It may not be dispositive but it is certainly relevant evidence for the jury."

Chief Justice Tani G. Cantil-Sakauye wrote in dissent that the trial court properly excluded the statements made by Morris as inadmissible hearsay. She added that she would have affirmed the death penalty sentence against Grimes.

"The majority needlessly complicates the law regarding statements against interest and opens the door to potentially untrustworthy hearsay," Cantil-Sakauye wrote.

The chief justice was joined in dissent by Justices Ming W. Chin and Carol A. Corrigan.

David S. Ettinger, a partner at Horvitz & Levy LLP who was not involved in the case, said the Grimes result is the most concrete example of the shift prompted by the recently installed Brown nominees.

"Rehearings happen almost next to never in the Supreme Court," Ettinger said. "But when they do happen, it's when there is a transition in the court."

Deputy Attorney General Stephanie A. Mitchell argued on behalf of the prosecution in Grimes. A spokeswoman for the attorney general's office said that prosecutors were reviewing the opinion.

Grimes is the second decision by the high court in as many weeks to vacate a capital punishment verdict.

Last week, the justices set aside a death sentence against Sergio Dujuan Nelson, who shot and killed two Target employees, because of a judge's improper interference with jury deliberations. People v. Nelson, 2016 DJDAR 8396.

A state appeals court in San Francisco has overturned the conviction of one of two brothers in a 2006 triple murder in Oakland, but upheld the guilty verdict and sentence of life in prison without parole for the other.

Asmeron and Tewodros Gebreselassie were convicted after a four-month trial in Alameda County Superior Court in 2011 of murdering their brother's widow and her brother and mother during an extended-family Thanksgiving dinner in the mother's North Oakland apartment on Nov. 23, 2006.

A three-judge panel of the state Court of Appeal on Wednesday unanimously upheld the conviction and sentence of three life terms without parole for Asmeron Gebreselassie, 53, who was identified by witnesses as the gunman in the shooting.

The court overturned the conviction of Tewodros Gebreselassie, 49, who was said by prosecutors to have aided his brother by signaling that the in-laws had gathered and then letting him into the apartment. Tewodros Gebreselassie was represented by Berkeley attorney Cliff Gardner.

The court said the trial judge, Vernon Nakahara, should not have allowed a police sergeant to testify that he believed Tewodros Gebreselassie did not tell the truth when he said in a police interview that he did not know his brother was coming to the apartment and did not open the door for him.

There is a reasonable possibility that the improper opinion testimony "tipped the scales in the jury's assessment of Tewodros's credibility and thus denied him the fair trial he was entitled to," Justice Peter Siggins wrote for the court.

The brothers were part of a close family of 11 siblings who had emigrated to Oakland and Berkeley from Eritrea.

Asmeron Gebreselassie mistakenly believed that the in-laws were responsible for the sudden death of his brother Abraham Tewolde in 2006, prosecutors said at the trial.

The victims were Tewolde's widow, Winta Mehari, 28; her mother, Regbe Bahrenegasi, 50; and her brother, Yonas Mehari, 17.

The decision requires a new trial for Tewodros Gebreselassie, unless prosecutors successfully appeal to the California Supreme Court or decide not to retry him.

A state appeals court overturned the convictions of one of two brothers Wednesday in the murders of their brother's widow and her mother and brother in a North Oakland apartment on Thanksgiving 2006.

The First District Court of Appeal upheld the convictions of the gunman, Asmerom Gebreselassie, but granted a new trial to Tewodros Gebreselassie, who was accused of aiding his older brother by leading him to the apartment and signaling that his intended victims were there. Both men were sentenced to life in prison without parole. Tewodros Gebreselassie was represented by Berkeley attorney Cliff Gardner.

The court said Alameda County Superior Court Judge Vernon Nakamura had wrongly allowed a police investigator to testify that he didn't believe Tewodros Gebreselassie's statement to police about the murders. Witnesses are supposed to testify only about facts and should not state their opinions about another person's credibility, the court said, and the case against Tewodros Gebreselassie depended almost entirely on whether the jury believed him.

The victims were Winta Mehari, 28, her brother, Yonas Mehari, 17, and their mother, Regbe Bahrenegasi, 50.

Winta Mehari's husband, Abraham Tewolde, had died suddenly in March 2006, and Asmerom Gebreselassie, his brother, accused Tewolde's wife and her family members of killing him. Tewodros Gebreselassie was visiting the Meharis when Asmerom entered and opened fire, killing three people and wounding a fourth. Tewodros Gebreselassie grabbed his 2-year-old nephew and escaped.

Asmerom Gebreselassie claimed he acted in self-defense after two of the Mehari brothers pulled guns on him. Police said no one else in the apartment was armed.

In upholding his convictions, the court said Nakamura had properly refused to let him act as his own attorney, after he repeatedly disrupted the proceedings by accusing family members of murder.

But the judge should not have allowed the investigator to question Tewodros Gebreselassie's credibility or to give a secondhand report that the defendant had not registered a gun, Justice Peter Siggins said in the 3-0 ruling.

In a rare move, the reconstituted state Supreme Court has voted to rehear a case as incoming liberal justices signaled their disagreement with a departing conservative in a death penalty appeal.

The new four-justice group, which included the newcomers plus one court veteran, had the votes to challenge the chief justice's majority opinion. In what legal observers said would be emblematic of their independence, the new group could opt to rehear as many as four additional cases.

The shift toward a liberal majority represented a dramatic about-face from that of 1986, when voters rousted from the bench three liberals on the court, then led by Chief Justice Rose Bird.

In 1987, with the liberals gone, a newly conservative court immediately restored a death sentence Bird and colleagues had reversed.

Wednesday's rehearing vote could do the opposite and lead to the sparing of a death row inmate.

Bird and the others rejected by voters over their anti-capital punishment views were appointments Gov. Jerry Brown made during his first stint in Sacramento from 1975 to 1983.

Brown also placed on the state high court the three who voted Wednesday to rehear the case of capital defendant Gary Lee Grimes: Goodwin H. Liu, Mariano-Florentino Cuellar and Leondra R. Kruger. They joined the liberal-leaning Kathryn Mickle Werdegar, who has been on the court since 1992.

An appellate lawyer who clerked for Bird, Paul D. Fogel of Reed Smith LLP, contrasted the 1986 expulsions with Brown's new court additions. "In 1986 we saw the polticization of the judiciary as the three were swept out of office based on the death penalty," he said. "This is very different, based on a change in the composition of the court via retirements."

Grimes, convicted in the 1995 murder of 98-year-old Betty Bone during a burglary, claimed a trial judge wrongly excluded statements by an accomplice that could have helped Grimes avoid a capital sentence.

The accomplice, John Morris, told an acquaintance that Grimes was in another part of the house when Morris killed Bone.

In January, the court split 4-3 in concluding there was no prejudicial error in People v. Grimes, S076339. The majority held that the exclusion of hearsay statements, even if erroneous, was harmless.

"We find no reasonable possibility that the exclusion of Morris's statements ... made a difference in the outcome at either the guilt or penalty phase," wrote Chief Justice Tani Canitl-Sakauye, joined by Marvin R. Baxter, Carol A. Corrigan and Ming W. Chin.

The dissenters, including a court of appeal justice sitting by designation, contended there was a reasonable possibility Morris' statements would have swayed jurors away from death verdict.

Since then Baxter has retired. Cuellar and Kruger took the oath of office on Jan. 5, the same day the court published Grimes. Cuellar replaced Baxter, the court's conservative stalwart. Kruger occupied the seat vacated by Joyce L. Kennard, an unpredictable independent who retired a year ago.

"It's a new day. Rehearings are rare and unusual in a capital case," said Cliff Gardner, the Berkeley appellate lawyer who represents Grimes. "This tells me [the Brown appointees] are willing to look again at an important case and will step up and share their views."

Grimes was sentenced to death in 1999. "It's never too late to reach the right decision," Gardner said.

Opposing counsel Stephanie A. Mitchell, a deputy attorney general, could not be reached. Spokespeople for Attorney General Kamala D. Harris did not respond to a message seeking comment.

Fogel, the appellate lawyer at Reed Smith, said Grimes' ultimate outcome remains unclear. "Our experience of Cuellar and Kruger is too limited to offer a prediction of how they view harmless error doctrine," he said, referring to the question on which Grimes' rehearing will turn.

Liu has been critical of his colleagues' use of harmless error analysis to affirm judgments despite lower court mistakes.

"Voting to rehear, however, does show the independence of the new justices," Fogel said.

David S. Ettinger, a Horvitz & Levy LLP appellate specialist, said in a blog post that the conditions at the high court allowing a second look at Grimes - a divided decision with a justice in the majority replaced before the court rules on a rehearing petition-exist in four other cases. The issues involved include sex offender registration, another death penalty appeal and standards for environmental review.

The grant of a rehearing petition "is one of the rarest of rarities at the Supreme Court," Ettinger wrote.

The most recent pre-Grimes rehearing grant came almost 20 years ago in 1996 in a civil case after Chin joined the court.

Citing a number of errors during the trial, a California appeals court has thrown out the guilty verdict against a Napa teacher who was sentenced to five years in state prison in 2012 for molesting one of his former students.

Michael Raymond Copithorne was a teacher at Napa Christian, a Seventh-day Adventist school in Napa, when the former student accused him of sex crimes. In June 2012, a Napa County Superior Court jury found Copithorne guilty of oral copulation of a child under the age of 16 and three counts of lewd acts upon a child.

The First District Court of Appeals on Thursday reversed the verdict, citing cumulative errors made during the trial."In light of the cumulative effect of the various errors committed during trial, we conclude it is reasonably probable that the jury would have reached a result more favorable to appellant on all counts absent of those errors," the Court of Appeals stated.

The Court of Appeals found the trial judge, Michael Byrne, erred when it gave improper jury verdict instructions that two of the three lewd act counts occurred "on and around" a range of dates, at a time the owner of an exotic fly-fishing booking agency testified Copithorne was on an organized fishing trip in Belize.

Copithorne, who is now 40, was a professional athlete in 2000 when his vertebrae were shattered in a snowboarding accident. Authorities said Copithorne, who uses a wheelchair, molested the teen in the back of his truck in a parking lot. A surveillance video shown to the jury showed Copithorne getting in and out of his truck.

While the prosecutor, Napa County Deputy District Attorney Lance Hafenstein, asserted Copithorne was very athletic, the defense, James V. Jones, of Napa, maintained Copithorne, who has rods in his back and cannot sit on a hard surface without risking serious injury, could not have pushed himself to the back of the truck because of he is paralyzed from the navel down.

While the jury was allowed to inspect the pickup truck in the back the Criminal Courthouse, Copithorne was not allowed to demonstrated how he got in and out of the truck.

The Appeals Court ruled the trial court "prejudicially abused its discretion" when it refused to allow the defendant to show how he gets in and out of his truck with his wheelchair and his physical inability to move inside the vehicle.

The appeals court also found the psychological records of the teenager, who was 16 during the trial, should have been disclosed.Cliff Gardner, the Berkeley –based attorney who represented Copithorne before the District Court of Appeals, on Tuesday said he would have been shocked had the appeals court ruled against his client. "The evidence of culpability was so thin," he said.

The California Attorney General could ask for a re-hearing in front of the Court of Appeals or take the case to the California Supreme Court.

Once the Court of Appeals' issues its final order, the Napa County District Attorney could re-try the case in Napa County Superior Court or drop the case, Napa County District Attorney Gary Lieberstein said Tuesday his office is reviewing its options.

"We respectfully disagree with the court's decision. We're certainly disappointed by their decision. We felt Mr. Copithorne had a fair trial."In the meantime, Copithorne remains at Valley State Prison in Chowchilla, according to the California Department of Corrections' website.

A state appeals court has overturned a Napa schoolteacher's molesting conviction and five-year prison sentence, saying the trial judge's erroneous rulings undermined the defendant's alibi and his attempt to show the jury that his physical injuries - including a broken back - made his accuser's claims implausible.

Michael Copithorne, a longtime instructor at Napa Christian School, was convicted in 2012 of three counts of lewd and lascivious conduct and one count of oral copulation of a youth under 16, a girl who had been his student in the sixth through eighth grades. He remains in prison.The girl, identified by the court only as Jane Doe, was 14 at the time of the incidents in 2010. She testified that Copithorne, whom she had known since kindergarten and considered a good friend, let her kiss him on the cheek after class one day, and responded with a long kiss on her lips. She said the same thing happened twice more, the last time after she sat on his lap.Several months later, she said, he gave her a ride in his truck, took her to a parking lot, lifted himself into the back seat, fondled her and licked her vagina.

Copithorne denied the accusations and presented witnesses who said he had a reputation for honesty while Jane Doe was mentally troubled and known to make up stories. The defendant, who uses a wheelchair because of a fractured spine - but was described by the prosecutor as "very athletic" - said his disabilities would have made his alleged maneuvers in the truck either severely painful or impossible. He also produced records that appeared to show he had not been at the school on the two days in March when she said the first two kissing episodes took place.

But Superior Court Judge J. Michael Byrne told the jury that the kissing incidents, the basis for two of the charges, were alleged to have happened "on or around February 2010 to May 2010" rather than on specific dates. He also refused to let Copithorne climb into his truck and move around in the back seat in the jurors' presence, saying such a demonstration would not produce reliable evidence.

On Thursday, the First District Court of Appeal in San Francisco said Byrne's rulings had denied Copithorne a fair trial.

The judge's "on or around" language allowed the jury to ignore Jane Doe's testimony about when the incidents took place and to disregard Copithorne's alibi, Presiding Justice J. Anthony Kline said in a 3-0 decision that entitles Copithorne to a new trial. He said Byrne also should have let the jury watch Copithorne in his truck and decide whether he was exaggerating his injuries.

"This was an extremely close case, which centered on the credibility of (Copithorne) and Jane Doe," Kline said. He said Byrne's errors "affected the jury's determination of who was telling the truth.

"Copithorne's lawyer, Clifford Gardner, said the justices made it clear in the ruling that "they thought, as I do, that Michael is innocent. I'm hoping that the district attorney will take that to heart" and drop the charges, he said.

A law professor here has collected 2,000 signatures on a petition calling for Gov. Jerry Brown and Attorney General Kamala D. Harris not to appeal a federal judge's July 16 ruling that California's death penalty law is unconstitutionally flawed.

U.S. District Judge Cormac J. Carney of Santa Ana held that the glacial pace of executions in the state violates the Eighth Amendment's ban on cruel and unusual punishment. Jones v. Chappell, 09-02158 (C.D. Cal., filed March 27, 2009).

Only 13 of the 749 people on death row have been executed since California reinstated capital punishment in 1978.

Hadar Aviram, a criminal justice authority at UC Hastings College of the Law, said several scenarios could flow from Harris' decision on an appeal. Though both Brown and Harris are longtime foes of the death penalty, neither has said to date what they will do.

"If the AG does not heed our call and appeals," Aviram said, "the best case would be that the 9th Circuit affirms Judge Carney so that his decision would apply to the entire state. Then the AG could refrain from appealing to the U.S. Supreme Court so the circuit decision would stand."

Aviram is the author of a forthcoming book, "Cheap on Crime," that in part details what she calls a new death penalty abolition movement in the wake of the financial crisis. By her count, six states have abandoned capital punishment since 2007.

"It's more realistic to think that the 9th Circuit will not affirm or that the AG will appeal all the way to the Supreme Court, in which case Carney will be overruled," Aviram said. "I can write you Justice [Antonin] Scalia's opinion right now."

Even Justice Anthony M. Kennedy, who has voted to limit the death penalty in some cases, "isn't likely to be sympathetic to the argument that we're not killing people quickly enough," Aviram said.

A Harris spokesman, Nick Pacilio, said Carney's opinion remains under review. As for Aviram's petition, "The attorney general values input from the public," Pacilio said.

Absent a 9th Circuit appeal, Carney's decision becomes final Aug. 25. Though it technically applies only to death row inmate Ernest Dewayne Jones, Carney's reasoning will be used at trials and in habeas appeals at the state and federal levels, said veteran death penalty appellate litigator Cliff Gardner of Berkeley.

"People are rushing to amend their federal petitions up and down the state," Gardner said.

One Orange County Superior Court judge, Thomas M. Goethals, has announced he will not follow Carney and rule out a death sentence as he rejected a defense request to immediately send mass killer Scott Eugene Dekraai to prison for life without parole.

Goethals said he assumed Harris will appeal. He left the door open for Dekraai's defense to renew its request if Harris does not appeal or a higher court affirms Carney.

Gardner said Carney has advanced a discussion begun by former Chief Justice Ronald M. George, who pronounced capital punishment "dysfunctional" in the state in 2008.

"Judge Carney now has said it hasn't been fixed," Gardner added. He doubted whether Aviram's petition will directly impact Harris. "But it gets people talking, and that's a worthwhile endeavor," he said. "For the attorney general, it's more a political than a legal decision."

Though it's true that public opinion has shifted from strong to moderate support for capital punishment, "Not many politicians are surfing on that tide. It would be a gutsy move," Gardner said.

A prominent conservative lawyer contended that Harris must appeal. "It should be a no-brainer," said Kent S. Scheidegger, the legal director of the Criminal Justice Legal Foundation. "The state Constitution holds that it is the duty of the attorney general to see that the laws are enforced. There are loads of grounds for attacking Judge Carney's opinion. There is no good-faith argument for not appealing. And [Harris] did promise that she would enforce the death penalty if elected."

A.J. Kutchins of Berkeley, a veteran appellate litigator, said politics will likely guide Harris' decision. "The reality is that we've had a succession of AGs who are ambivalent at best about the death penalty, who would be considered progressive, but who in their own political interest are reluctant to interfere with the more hawkish tendencies of their own criminal justice staff," he said.

"And it is no mystery that an ambitious politician is going to go to great lengths not to appear soft on crime."

If Harris declines to appeal, Aviram said, "it would be a fairly strong symbolic proclamation," on par with the one she and Brown made in refusing to defend Proposition 8, the gay marriage ban.

"Prop. 8 was a voter initiative, and so was the law that reinstated the death penalty in 1978," Aviram said. "The path could be long or short, but following Judge Carney's opinion, logic requires that the death penalty ends."

A California appeals court has reversed the murder conviction of a Stockton man charged with the beating death of a 48-year-old woman on grounds the defendant had ineffective representation.

James Andre Gorman in 2011 was sentenced to 15 years to life for the second-degree murder of Frankie Fisher Todd, found inside her home bludgeoned and with bite marks on her body.

The Third Appellate District sided with a petition __EDITOR__ that says Gorman's trial defense attorney, Ralph Cingcon, failed to attempt to locate three available witnesses who could have made a difference in the outcome of the trial.

"Two of whom could have bolstered Gorman's alibi, and one who could have identified another plausible killer, the victim's daughter," the petition says.

The court granted the reversal Wednesday based on ineffective assistance of counsel.

Gorman alleges Todd's daughter, a drug dealer, had made incriminating admissions to one of her customers.

It's a claim Deputy District Attorney Robert Himelblau says has "zero" evidence to support.

Should he retry the case again, he said, "I will prosecute it the exact same way I did it before."

"This woman, Frankie Todd, was beaten brutally with a blunt object," Himelblau said. "That blunt object was not in the home."

Gorman, 49, had a reputation for carrying a bat and assaulting people with it, Himelblau said, adding that DNA evidence and witness accounts support a conviction.

Cingcon declined to comment on the appellate court decision.

Todd was beaten to death with a baseball bat March 25, 2005, at her home in the 2400 block of Ophir Street.

The home was a known drug house that had people coming in and out in the late night and early hours, court documents say.

Gorman, who admitted to providing drugs to the victim in exchange for sexual favors, was arrested in 2006.

Saliva in at least one bite mark on Todd's body matched Gorman's DNA. One witness testified to riding with Gorman to the victim's home and seeing him enter it with a bat.

Gorman's petition challenges the reliability of witnesses who were substance users.

Himelblau, who prosecuted the case, said in 2011 that he believed Gorman attacked Todd because she had disrespected him weeks earlier by hitting him in front of other people.

Gorman's murder trial wasn't the first time Himelblau had crossed paths with Todd. The previous time, however, she was a witness to her other daughter's slaying.

Five years prior, Todd's 19-year-old daughter, Koi Wilson, was shot to death when someone opened fire in a home and stole a large amount of marijuana. That killer, Angelo Melendez, is now on California's death row.

Himelblau on Thursday said the District Attorney's Office plans to retry Gorman if the attorney general does not appeal the high court's decision to reverse the case.

Michael Pizarro may or may not have sexually assaulted and murdered his 13-year-old half-sister in Madera County in 1989. Two juries have found him guilty in verdicts that have been overturned on appeal. Pizarro’s wife said she saw him near the child in a field shortly before she was killed. He was linked to the crime by DNA evidence, which was challenged by the defense but has been ruled admissible. On the other hand, the prosecution’s case was far from airtight. The last jury took six days to convict him after reporting two deadlocks. Pizarro had gotten along well with the victim and had no apparent motive to kill her. And a witness reported that another man, whose pickup truck had been seen nearby, confessed to the murder in 1997 and killed himself a week later.

If Pizarro is tried for a third time, though, it seems safe to predict that his new jury will do a better job following the rules than the last one.

According to his lawyer, Cliff Gardner, the defense learned after Pizarro’s second trial that two of the jurors were brother and sister, two others were employer and employee and more than one juror had a felony record, facts they didn’t disclose during the trial.

The reason for the latest reversal was none of those, but instead some unauthorized online research by Juror No. 9 — conduct that a state appeals court said “made a mockery of the trial” and should have been criminally prosecuted.

Pizarro, who was then about 20, was convicted of sexually molesting and murdering 13-year-old Amber Dawn Barfield, who was beaten and suffocated near her home town of North Fork. His wife said he had left a party that night after an argument with her, she drove with Amber to look for him, and she last saw the girl as she was approaching Pizarro in a field. Pizarro denied killing Amber, but was convicted in 1990 and sentenced to life without parole, and has remained in prison during two appeals court reversals and a second trial that also ended in a conviction.

At the retrial, according to this week’s ruling by the Fifth District Court of Appeal, Juror No. 9 decided he wanted more information, so he first read a newspaper article about the case and then looked up the appeals court’s 2002 ruling that overturned Pizarro’s first conviction.

That ruling told him many things the jurors weren’t supposed to know: that Pizarro had been convicted and sentenced to life, that he had testified at his first trial, that he had been drinking and told an investigator that alcohol made him violent, and that the court that overturned his conviction because of misleading testimony about the DNA evidence had nevertheless observed that prosecutors presented a “strong circumstantial case” against him.

The trial judge had given all the jurors the customary instruction to rely on the evidence they heard in the courtroom and not to do their own research. Juror No. 9, who acknowledged his disobedience in a post-trial hearing, picked up to “extraneous information” that was “harmful and perhaps devastating to the defense,” the court said in a 3-0 ruling. And although the state Supreme Court has ruled that a juror’s exposure to unauthorized evidence is not ordinarily grounds for overturning a conviction, the appellate court said the evidence in this case was so damaging that it must have affected the juror’s judgment and tainted the verdict.

Attorney General Kamala Harris’ office, which represented the prosecution, said it is reviewing the decision, which it could appeal to the state’s high court. The lengthy ruling can be viewed here: http://www.courts.ca.gov/opinions/documents/F057722A.PDF.

Jurors who improperly search the Internet for information about the trial they're hearing are a growing problem for lawyers and judges.

This week, the California Court of Appeal tackled a worst-case scenario -- a juror who located a prior appellate opinion about a case, chock-full of inadmissible evidence -- while challenging the California Supreme Court to tighten standards for prejudice from extraneous materials.

The Fifth District on Tuesday reluctantly threw out the conviction of Michael Pizarro in the 1989 sexual assault and murder of his 13-year-old half-sister, Amber. Pizarro was prejudiced because a juror discovered that he'd been convicted on all counts at a previous trial, had given testimony at that trial that contradicted his statements to police, and that the appellate court had labeled it a "strong circumstantial case."

People v. Pizarro marks the third time the appellate court has ordered a new trial in the case.

"We sympathize with the trial judge who, having presided over two jury trials and a prolonged Kelly hearing amid two appeals, was called upon to make the difficult decision of whether to grant yet another new trial in a case that was then almost 20 years old," Justice Stephen Kane wrote for a unanimous panel. But "the juror's misconduct in disobeying the court's repeated admonitions and in investigating the case on his own made a mockery of the trial process and prejudiced defendant."

Madera County Superior Court Judge Edward Moffat II had found the juror committed "gross misconduct," but held it harmless under In re Carpenter, the leading California Supreme Court decision on jurors accessing extraneous materials.

Kane wrote that the Carpenter decision is "deeply troubling on many levels" and urged the California Supreme Court to revisit it.

"When jurors receive information about the case outside of the courtroom, all of the work of the court and parties to comply with the law is potentially undone," Kane wrote. When that information is likely to have biased the juror, it's wrong "to uphold the verdict simply because a reviewing court thinks the defendant would have been convicted anyway."

Pizarro had been drinking at a party near North Fork on the night of June 10, 1989, when he got into an argument with his wife and began walking home. His wife enlisted Amber to help persuade Pizarro to get into their pickup truck, but she disappeared with Pizarro off the side of the highway, then turned up dead the next morning. DNA evidence indicated sexual contact between her and Pizarro within 72 hours of her death. Pizarro said he had walked away from the women and then fallen asleep in a field.

Pizarro was sentenced to life in prison in 1990, but the appellate court reversed, twice, due to problems with the DNA evidence. "This was an awful case on many levels," Kane wrote, "an abominable crime with complicated DNA evidence, two jury trials and a lengthy Kelly hearing in between."

Pizarro was convicted a second time in 2008, but following that trial a juror, identified only as Juror No. 9, admitted researching one of the previous appellate opinions on the Internet during trial. The juror had felt "lost" during testimony, and referred repeatedly to the appellate opinion to help him understand the timeline of events.

"I was looking at everything," the juror testified. "I was looking at what people were saying, who said what. I was looking at who was where. I mean, that's timelines, that's what a timeline is. Where everybody was at. What they were saying. Who was involved."

The opinion recounted Pizarro's testimony at his first trial, which included the admission that alcohol made him violent. Pizarro did not testify at his second trial.

The attorney general's office argued that the misconduct was harmless under In re Carpenter. That 1995 decision by Justice Armand Arabian upheld the convictions and death sentence of "Trailside Killer" David Carpenter despite a juror reading extensively about the case in the local newspaper. Evidence of Carpenter's guilt was "truly overwhelming," Arabian reasoned, and "it is virtually inevitable that in a trial such as this some secrets cannot be kept."

Kane criticized the Carpenter ruling, adding he was not the first appellate judge to do so.

"We respectfully urge our Supreme Court to reconsider its Carpenter opinion," Kane wrote, with Justices Charles Poochigian and Donald Hanson concurring. "It should be sufficient to show juror bias if the extraneous material is substantially likely to have caused the juror to lower the prosecutor's burden, shift the burden to the defense, become skeptical of defense evidence or theories, or deprive the defendant of thorough consideration of his case."

Berkeley criminal appeals specialist Clifford Gardner argued the case for Pizarro. Deputy Attorney General Rachelle Newcomb represented the state.

Lawyers for death row inmates are accustomed to losing in the state Supreme Court.

But a string of wins in capital cases in recent months has some foes of the punishment feeling cautiously optimistic. Since December, the court has reversed five death sentences following two years of straight affirmances.

"They're on a hot streak," said attorney Cliff Gardner, who represents capital inmates.

Some practitioners and court watchers say the rulings suggest the court under Chief Justice Tani Cantil-Sakauye is taking a harder look at death penalty cases than in previous years, but others say the rulings are more likely a random blip. In an ironic twist, an unusual concurrence by Cantil-Sakauye in one reversal could eventually lead the U.S. Supreme Court to limit the use of automatic reversals.

"There is a pretty clear theme, which is very aggressive review of the sort that we saw a million years ago on the Bird court and then didn't at all under the Lucas court and have only seen intermittently since," said Robert Weisberg, co-director of Stanford Law School's Criminal Justice Center.

Between 1977 and 1986, the court under Chief Justice Rose Bird reversed nearly all death penalty cases that came before it, a trend that ended when Malcolm Lucas succeeded her. Chief Justice Ronald George had a more mixed record, according to Weisberg.

One unifying feature of some of the recent reversals shows the state Supreme Court grappling with the issue of jury composition in capital cases.

The U.S. Supreme Court has held that a trial judge can't exclude prospective jurors who personally oppose the death penalty if those beliefs would not "prevent or substantially impair" their ability to vote in favor of the death penalty, as required under the law. The high court gives trial judges wide latitude in determining whether a juror meets that standard, including an examination of a juror's demeanor.

At a time when support for the death penalty is waning, jurors' views on the death penalty could become even more important. If more individuals oppose the death penalty, there is a greater likelihood that judges will wrongfully exclude potential jurors.

Twice this year, the state Supreme Court vacated death penalty judgments because of trial court error on that question.

In one case, involving a man convicted of sexually assaulting and killing a woman, the court rejected the trial judge's assessment that a prospective juror made "conflicting or equivocal statements" about her ability to vote for the death penalty. Even if she had, the court said, that wasn't grounds for dismissal. People v. Pearson, S120750.

The court applied a stricter standard in a second case, involving a man convicted of shooting to death his ex-girlfriend and her best friend. The trial judge should have questioned a prospective juror face-to-face after she equivocated on a written questionnaire about imposing the death penalty, the court ruled. John Riccardi v. Los Angeles County Superior Ct., S056842.

Cantil-Sakauye wrote a concurring opinion in Riccardi asking the U.S. Supreme Court to "clarify" the issue of automatic reversals for juror exclusion error. The court's three more conservative members signed on to the concurrence.

"The chief justice appears to be looking to a more conservative court to reverse clear precedent that has protected the rights of defendants and jurors but has required the reversal of death penalty cases such as Riccardi's," said UC Berkeley School of Law Professor Elisabeth Semel.

The Riccardi decision was also interesting in light of a ruling from the state justices just a year earlier. In that case, the court ruled the trial judge wasn't obligated to question prospective jurors independently before dismissing them because the answers on the jury questionnaire forms left no doubt they would not impose the death penalty. Justice Kathryn Werdegar dissented, arguing the trial judge should have further questioned at least one of the dismissed jurors. People v. McKinnon, S077166.

Unlike in the Riccardi case, the defense attorney in McKinnon didn't oppose the jurors' dismissal - a fact that the state Supreme Court emphasized in its decision.

In a third case involving jury composition, the state high court reversed the trial judge's decision to dismiss a sitting juror who was a potential holdout against conviction during deliberations. People v. Cleamon Johnson and Michael Allen, S066939.

"Normally you are going to see a fair amount of deference to the trial judge. And [in these cases] they are not very deferential," Weisberg said. "The state Supreme Court has clearly signaled they are going to crack down on judges who dismiss these arguably anti-death penalty jurors too abruptly."

The other two reversals since December dealt with jury instructions and mental competency. People v. Brents, S093754; People v. Lightsey, S048440.

Death penalty attorney Scott Kauffman said the court appears more receptive to capital appeals, a change he attributed to the addition of the court's newest members - Cantil-Sakauye and Associate Justice Goodwin Liu.

"It's changed the dynamic on the court in some impalpable way," Kauffman said. "There clearly is more reception to the claims that we've been making."

But other death penalty attorneys rejected that assessment.

"It could be an interesting anomaly. It could be a trend," said death penalty attorney Charles Sevilla. "I just don't see a change in the personnel of the court being an explanation."

Gardner, who is representing infamous death row inmate Scott Peterson, agreed. "I think these cases would have been reversed by any combination of the justices sitting in the last 20, 25 years," Gardner said.

Jury composition issues are among the many claims in Peterson's appeal of his death sentence. Peterson was convicted in 2004 of murdering his wife and unborn child.

Santa Clara University School of Law professor Gerald Uelmen said the issue of jurors' attitudes toward the death penalty could become even more crucial because of shifting public opinion against capital punishment. According to annual Gallup polls, support for the death penalty has declined from all time highs in the mid-1990s. A 2011 poll found 61 percent of Americans approve of the death penalty, the lowest level of support since 1972.

"Public opinion is shifting on this issue and shifting fast," Uelmen said. "I don't think [before] we saw as many jurors coming in and expressing misgivings about the death penalty."

Scott Peterson on Thursday filed the automatic appeal of his 2004 death sentence to the California Supreme Court, maintaining as he always has that he had nothing to do with the murders of his wife Laci and unborn son Conner.

Peterson's attorney, noted death penalty lawyer Cliff Gardner, filed the 423-page document eight years after a San Mateo County jury found the former fertilizer salesman guilty of suffocating a Laci and dumping her in the San Francisco Bay on Christmas Eve 2002.

Peterson has always maintained his innocence and his appeal to the Supreme Court is no different. Gardner claims that the overwhelming publicity Peterson's trial received, incorrect evidentiary rulings and other mistakes deprived him of a fair trial. Peterson was convicted in 2004 after a trial that his attorney argues surpassed the O.J. Simpson murder trial in terms of publicity.

Peterson claims that Laci was killed sometime after he left their Modesto home the morning of Dec. 24, 2002 to go fishing in the San Francisco Bay. Gardner notes that Peterson was convicted and sentenced to death even though investigators never directly proving "how, where or when" the murder occurred.

Prosecutors told the jury that Laci was killed sometime between the night of Dec. 23, 2002 and the morning of Dec. 24, 2002. They believed Laci was suffocated in her home, but Gardner argues that there was little direct evidence collected at the house to support that theory.

Gardner argues that the intense publicity the case generated almost from the moment Laci disappeared deprived Peterson of a fair trial. The trial was ordered moved from Stanislaus County of the Petersons' home, to San Mateo County. Gardner argued that the trial should have been moved yet again because of the crush of publicity in San Mateo County.

"Before hearing even a single witness, nearly half of all prospective jurors admitted they had already decided Mr. Peterson was guilty of capital murder,' Gardner argues. And in what may be a first for the American system of justice, outside the courthouse in which the parties would try to select a fair jury, a radio station posted a large billboard which had a telephone number for people to call in and vote" whether Peterson was a "man or monster." Peterson was pictured in an orange jailhouse jumpsuit.

"The publicity continued throughout trial," Gardner argued. "A mob estimated at more than 1,000 people gathered at the courthouse to await the guilt phase verdict. After the guilty verdict was announced, the 12 jurors departing to await the beginning of the penalty phase - and decide whether Mr. Peterson would live or die - were met with wild applause and cheering."

Beyond issues with the publicity, Gardner argues the judge made several erroneous evidentiary decisions and other rulings that led to Peterson receiving an unfair trial. Gardner complains the judge automatically excluded prospective jurors who said they opposed the death penalty. Gardner argued that those jurors should have been questioned more about whether they could still decide the case fairly.

Gardner also argues that some of the prosecution's strongest evidence should never have been shown to the jury. For instance, Gardner alleges that the police dog who picked up Laci's scent at the Berkeley Marina "even though the dog had a dismal record of being wrong a remarkable 66 percent of the time."

The thick legal brief delves into numerous other issues alleging incorrect rulings, juror misconduct and other errors.

All death penalty cases are appealed to the California Supreme Court, which is struggling to keep up with the pace of cases. There are 725 inmates on Death Row and no prisoner has been executed in California since January 2006. Lawsuits in federal and state courts have temporarily halted executions.

The appeal is expected to take months, if not years, to be resolved.

When James Lee Crummel hanged himself in his San Quentin Prison cell last month, he had been living on Death Row for almost eight years - and he was still years away from facing the executioner.

California's automatic death penalty appeals take so long that the state's 723 condemned inmates are more likely to die of old age and infirmities, or kill themselves, than be put to death.


Since capital punishment was reinstated in 1978, California has executed 13 inmates, and none since 2006. Twenty have committed suicide, including Crummel, who abducted, sexually abused and killed a 13-year-old boy in 1979.

Another 57 inmates have died of natural causes. The ponderous pace of this process has helped make the state's death row the most populous in the nation, and it has generated critics from all quarters.

Victims-rights groups say the delays amount to justice denied. Death penalty opponents say the process, like execution itself, amounts to cruel and unusual punishment.

And now the state's voters will get an opportunity in November to vote on a measure that would abolish the death penalty, which critics deride as an inefficient and expensive system for a financially troubled state.

It took the Supreme Court four years to appoint Crummel a public defender, and it took his attorney almost that long to file his opening brief after several time extensions.

Crummel's appeal was expected to consume a few more years before the high court decided the case.

While most condemned inmates welcome legal delays, even those seeking a speedy resolution are stymied.

Scott Peterson, who was sentenced to death seven years ago for murdering his pregnant wife Laci, is attempting to get his case before the Supreme Court as soon as possible, because he said he was wrongly convicted.

Peterson's parents hired a top-notch private appellate lawyer after sentencing, while other Death Row inmates wait an average of five years each for appointment of taxpayer-funded public defenders.

""We are moving at lightning speed compared to most automatic appeals,"" said Peterson's attorney, Cliff Gardner. ""He wants to establish his innocence.""

The slow wheels of death penalty appeals, and the billions of dollars spent on them over the years, are making converts of some of capital punishment's biggest backers, including the author of a 1978 ballot measure that expanded the types of crimes eligible for capital punishment in the state.

Retired prosecutor Donald Heller, who wrote the 1978 proposition, and Ron Briggs, the initiative's campaign manager who now serves on the El Dorado County Board of Supervisors, said they support abolition in California because the system is too costly and hardly anyone is being put to death.

""We'd thought we would bring California savings and safety in dealing with convicted murderers,"" Briggs said in a statement.

""Instead, we contributed to a nightmarish system that coddles murderers and enriches lawyers.""

The current measure, known as the SAFE California Act, would convert all death sentences to life in prison without parole and redirect $100 million from the death penalty system to be spent over three years investigating unsolved murders and rapes.

Capital defense counsel - can't live with 'em, can't live without 'em.

That's what the California Supreme Court must have been thinking Tuesday, as the justices' tough threat to clamp down on lengthy habeas corpus petitions with monetary sanctions was quickly withdrawn when the court ran into an unrepentant defense lawyer and a courtroom packed with his colleagues wielding a threat of their own.

"What am I supposed to do as exhaustion counsel?" demanded Berkeley attorney James Thomson. "The federal court has told me I have to be here. I'm here."

Last week the Supreme Court sent Thomson and his co-counsel a letter warning that the court was considering monetary sanctions because of the 519-page habeas petition they filed in 2004 raising 143 claims on behalf of a client who calls himself Reno. The petition included dozens of claims already raised and rejected on appeal or in a previous habeas petition.

The letter upset the capital defense bar, with California Attorneys for Criminal Justice and the federal public defenders of Los Angeles and Sacramento submitting an amicus curiae brief a few days later.

"The difficulty this court has had with the recruitment of qualified counsel to take capital habeas appointments is well-known," San Francisco attorney Cliff Gardner wrote on their behalf. "There are currently 328 prisoners on death row without habeas counsel." The threat of sanctions "while attempting to navigate the shoals of complex and often contradictory state and federal habeas law will only increase the difficulty in obtaining counsel for these cases in the future."

Gardner, California Appellate Project executive director Michael Millman and UC-Berkeley Death Penalty Clinic director Elisabeth Semel were among the defense bar luminaries supporting Thomson in person Tuesday. But before Thomson even got up to speak, Chief Justice Tani Cantil-Sakauye announced that the court would allow additional briefing on the sanctions issue, and Justice Kathryn Mickle Werdegar told Deputy Attorney General Mary Sanchez, "I want to take off the table the thought of sanctioning any of the attorneys in this case."

It remained clear, nevertheless, that the case has touched a nerve with the court and that the justices want to use it to reduce the enormous resources spent on capital habeas petitions.

Reno, previously known as Harold Ray Memro, has been on death row for 32 years and has gone through eight court-appointed attorneys. He was sentenced to death in 1980 for the throat-slashing murder of two pre-teen boys in 1978 and the strangulation and sexual assault of a 7-year-old in 1976.

Virtually all of the evidence against Reno is based on his confession, which he says he gave South Gate police only because they were threatening to ram his head into a wall. Two other arrestees testified that they'd been threatened with the same beating by the same police officers. The California Supreme Court ordered a new trial in 1985 so that Reno could conduct discovery on the officers' personnel files. But by the time of his 1987 retrial the police department had destroyed the records.

Reno has been a difficult client who insisted on representing himself along with counsel at various times during his trials. "Your legal IQ is zero," Judge John Torribio snapped at him during his retrial.

He was sentenced to death a second time and the California Supreme Court affirmed in 1995, while rejecting Reno's first habeas petition later that year. Reno brought new claims in federal court, and in 1998 a judge sent the case back to the state Supreme Court, saying 18 of those claims had not yet been exhausted.

In 2004, defense lawyer Peter Giannini of Los Angeles filed Reno's second state habeas petition, acknowledging it included not only those 18 claims but many new ones. "Petitioner has included all known claims of constitutional error related to his trial, convictions, sentence and imprisonment for the sake of clear presentation and so this court can assess the cumulative effect and determine that a miscarriage of justice occurred," Giannini wrote in the petition. "This includes claims that have been previous presented."

On Tuesday, Deputy AG Sanchez said the defense lawyers should be sanctioned for abuse of the writ - not only raising too many claims, but failing to allege them with specificity. "We hope that will chill the filing" of these huge petitions, she said.

Counsel facing possible sanctions often are contrite, but Thomson was unbowed. He began his argument by saying the specificity demanded by the AG "is going to cause the petitions to be longer, not shorter."

He noted that he had filed a chart with the court that specified which claims had already been raised and rejected. "Maybe it should have been in neon," he added.

Justice Carol Corrigan was Thomson's toughest questioner. "We are over 25 years on from the commission of these crimes," she told him. "If it's sufficient to come back 17 years later and say 'I wasn't the lawyer [for the first habeas petition]' ... then there's never any end to this."

Thomson emphasized that his team felt duty-bound to preserve all claims for federal court, which has a different set of habeas rules that is constantly changing. "I don't want to be the lawyer 15 years ago, when my client is being marched to death row, to the execution chamber, kicking myself" for not recognizing a meritorious claim.

By the end of his argument the court sounded conciliatory. "Nobody wants to be in that spot," Corrigan told him. "We don't want to either."

Thirteen years ago, Edward Patrick Morgan asked the California Supreme Court for a lawyer to investigate and challenge his 1996 death sentence for a murder in Orange County. The court has yet to find Morgan an attorney.

The inability of the state to recruit lawyers for post-conviction challenges, or habeas corpus petitions, has caused a major bottleneck in the state's criminal justice system. Nearly half of those condemned to die in California are awaiting appointment of counsel for these challenges.

This "critical shortage," as the state high court describes it, has persisted for years, despite lawyer gluts. The average wait for these attorneys is 10 to 12 years.

Criminal defense lawyers attribute the scarcity to inadequate state funding, the emotional toll of representing a client facing execution and the likelihood that the California Supreme Court will uphold a capital conviction.

"There are myriad reasons why dozens of lawyers who used to do these cases decide they can't afford it," said UC Berkeley law professor Elisabeth Semel. "I am talking about not going broke because you are trying to do the right thing for your client."

Prosecutors and death penalty supporters blame the culture of criminal defense work or, as Kent Scheidegger, legal director Criminal Justice Legal Foundation, put it, the zeal "to turn over every rock in the world."

"The idea that you have to pull out every stop in every case is excessive," said Scheidegger, whose group favors capital punishment. "There is a lot of pressure, but that doesn't mean the state has to or should pay for it."

Lynne Coffin, 61, a criminal defense lawyer who does death penalty cases almost exclusively, said fewer young lawyers are willing to take on the work. She said even she is uncertain whether she would have become a capital defender "knowing what I know now."

"It's a big toll on people to have clients on death row," Coffin said. "Even if they are nowhere near execution, they are very needy. Most have no family connections anymore, no money, no friends, so the lawyer becomes the source of everything.... Emotionally it is very taxing."

Financially, the rewards also are elusive, she said. Most lawyers put their own money into prison accounts for their destitute clients for extra food and other expenses, she said.

"I know people think they are eating bonbons, but it is so far from the truth," she said.

As a capital defender, Coffin has had to witness two executions, which she said disturbed her long after they were over. "And I am not going to any more."

Chief Assistant Atty. Gen. Dane Gillette, who has been pushing for more frequent executions, questioned whether criminal defense lawyers deliberately boycott capital cases to slow the pace of executions.

Defense attorneys scoff at the notion, but some individual lawyers do refuse to participate for ideological reasons.

"Their view is they don't want to grease the skids, they don't want to make it easier to execute somebody, and by representing someone, you are bringing them that much closer to the Grim Reaper," said Cliff Gardner, a Berkeley-based criminal defense lawyer who represents death row inmates.

Gardner is one of the few lawyers who have won death penalty cases before the California Supreme Court. His death row clients include Scott Peterson, convicted of killing his pregnant wife and unborn son on Christmas Eve in 2002.

"The idea that you are saving someone who is condemned under appointment by the court seems be the highest calling any criminal lawyer can have," Gardner said. "Standing between the death chamber and your client is why we went to law school."

California has more than 700 inmates on death row, the largest number in any state in the country.

"We are dealing with numbers the system can't handle," said Michael Laurence, executive director of the Habeas Corpus Resource Center, a state agency that represents death row inmates in post-conviction challenges.

Some experts believe the shortage will be met only when the state expands such centers, where lawyers are on salary and have access to paid investigators and paralegals.

Each death row inmate is entitled by law to an automatic appeal to the California Supreme Court. These appeals are based on what happened at trial. They often include allegations that a judge gave improper jury instructions, a prosecutor made improper remarks during closing arguments or that evidence was impermissibly barred or admitted.

After an automatic appeal, a death row inmate may file a habeas corpus petition, which asks that the prisoner be taken to court to determine whether he or she is being held unlawfully.

A habeas or post-conviction challenge is based on evidence that was not presented at trial.

For instance, a defendant may argue that a prosecution witness obtained favors for testifying, a fact not disclosed during trial. If persuasive evidence is provided, the state high court will order a hearing before a trial judge.

A lawyer who takes a habeas is required by the California Supreme Court to have experience both in trial court and in appeals.

Chief Justice Ronald M. George said many lawyers lack the qualifications to take post-conviction challenges.

"I want to distinguish what we do in California from what they do in other states, where almost any warm body will qualify," George said.

The George court has upheld 90% of the death cases it has reviewed, the highest rate of any state court, according to Santa Clara University law professor Gerald Uelmen. George attributes the rate to the relatively high quality of defense the state provides at trial.

But criminal defense lawyers maintain that many capital defendants receive inadequate counsel at trial. They note that federal courts overturn more than half the California death penalty cases they review.

UC Berkeley's Semel said the state fails to meet American Bar Assn. standards for death penalty litigation. The quality of defense counsel varies from county to county, and the state increasingly pays a flat fee for capital cases, which the ABA opposes on the grounds it encourages lawyers to skimp on their duties to the client.

Semel said an investigation for post-conviction challenge costs about $250,000, which includes pay for expert witnesses and travel. The state high court two years ago doubled the investigation budget to $50,000 for an inmate.

Beth Jay, principal attorney to the chief justice and a 31-year veteran of the court, said the court pays a lawyer $200,000 to $300,000 on average for a post-conviction challenge, which can take years. Several law firms that take such cases cover the unreimbursed costs.

Earlier this year, the California Supreme Court accepted a cursory post-conviction challenge from Morgan, the death row inmate who has been waiting more than 13 years for a habeas lawyer. The court permitted Morgan's petition to be a mere place holder until an attorney could be found to file a proper one.

By accepting it, the court spared Morgan from missing a key legal deadline while still giving him the opportunity to challenge his sentence later on.

Atty. Gen. Jerry Brown had urged the court to reject Morgan's "shell petition," arguing that the court's practice of permitting them has delayed the resolution of capital cases.

But Justice Joyce L. Kennard, writing for the court, said it would be "grossly unfair" to require "an indigent death row inmate who is untrained in the law" to prepare his own post-conviction challenge.

"What is causing the delay," Kennard wrote, "is not that practice but this court's inability so far to recruit qualified habeas corpus counsel for each of the hundreds of death row inmates."

When Cliff Gardner walks up to the podium at the U.S. Supreme Court next week, he may well momentarily think he has stepped into the boxing ring next door to his Berkeley law office.

As a defense lawyer representing a prison inmate seeking habeas corpus relief, he will be dreading a knockout punch from the conservative-leaning court.

The Supreme Court regularly takes pro-defendant habeas corpus cases with the intent of reversing lower court rulings, especially if those rulings, like the one in Gardner's case, come out of the 9th U.S. Circuit Court of Appeals. The 9th Circuit is often seen as the federal appellate court most out of sync with the Supreme Court, not just in habeas corpus cases, but on a host of other issues. In the 2009-2010 term, the circuit was reversed or vacated 12 times and affirmed four times.

Gardner's is one of four 9th Circuit habeas corpus rulings the court has taken so far to be argued in the 2010 term, which starts Monday.

The rest of the docket also has a substantial 9th Circuit and California flavor.

Of 54 cases the court has agreed to hear so far, 18 are 9th Circuit rulings. The justices will also be reviewing one California Court of Appeal opinion in a product liability case and a direct appeal from the three-judge district court panel that has ordered the state to release thousands of prison inmates.

Commenting on the proportion of 9th Circuit cases, University of Pittsburgh School of Law professor Arthur Hellman noted that the circuit was "overrepresented on the docket."

The 9th Circuit is the biggest circuit by area and population, and its caseload constitutes 20 percent of the total heard by federal circuit courts. But its rulings make up 33.3 percent of the cases the Supreme Court has agreed to review so far. That's a higher percentage than recent years. Last term, for example, there were 16 9th Circuit cases out of 77 heard on the merits, which is 21 percent of the docket.

One of the reasons may be that the losing lawyers in 9th Circuit cases are "more aggressive" in seeking review because they know that the Supreme Court often looks upon the circuit's rulings with a skeptical eye, Hellman said.

The case that Gardner is arguing, in which California Attorney General Jerry Brown sought review of the 9th Circuit ruling, could be a perfect example.

"I understand why most people think they will reverse," Gardner said of the justices in a recent interview at his office.

Although the Supreme Court regularly takes habeas corpus cases that have little application beyond the individual inmate involved, experts say Gardner's case could have a broader impact in large part because of an additional question the court itself has asked the lawyers to argue: whether federal courts should give deference to the state appeals court's final judgment if the state court denied habeas corpus review via a summary decision. Harrington v. Richter, 09-587. Gardner's client, Joshua Richter, was convicted of murdering a man and injuring another during a 1994 robbery in Sacramento. In August 2009, the 9th Circuit granted Richter habeas relief in an en banc decision, with four judges dissenting.

Pamela Harris, executive director of the Supreme Court Institute at Georgetown Law Center, described it as a "huge case" because it could affect hundreds of cases across the nation. The California Supreme Court regularly disposes of cases via so-called "postcard" denials.

The question of how federal courts should view such rulings "has been kicking around" since Congress passed the Antiterrorism and Effective Death Penalty Act in 1996, Harris said. The law included a major reform to habeas corpus law that restricted the ability of defendants to seek review of state court rulings in federal court.

Harry J. Colombo, the California deputy attorney general who is arguing the case for the state - his first before the Supreme Court just two months before he retires - said the outcome "would be significant" if the court concludes, as expected, that summary decisions should be given deference under AEDPA.

"It would be more consistent with the federal habeas statutory scheme," he added. Most observers expect Colombo to win that case.

They also predict the Supreme Court will affirm in another case, which is probably the most high-profile 9th Circuit case scheduled for argument. The question there is whether a California law restricting the sale of violent video games to minors violates the First Amendment. Schwarzenegger v. Video Software Dealers Association, 08-1448.

The law, which California passed in 2005 but which has never gone into effect because of the legal challenge, would have banned the sale or rental of video games that allow users to facilitate the "killing, maiming, dismembering, or sexually assaulting an image of a human being" to consumers under the age of 18. The 9th Circuit struck the law down in a February 2009 ruling.

At issue in the case is whether violence in video games can be treated the same as sexually explicit material, the sale of which to minors can be banned under a 1968 U.S. Supreme Court decision. Ginsberg v. New York, 30 U.S. 629.

In that case, the court concluded the state had a rational basis for believing obscene material would harm minors.

The Supreme Court has never ruled on whether violence can be treated the same as sexually explicit material.

Similar laws to California's have been struck down by other federal courts, meaning there is no circuit split, which has prompted most legal experts to ponder why the Supreme Court bothered intervening.

Eugene Volokh, the well-known First Amendment expert at UCLA School of Law, who has filed a brief in support of the video game industry, speculated that the court's decision to take the case, which requires the votes of a minimum of four justices, at least "suggests that at least four of the justices disagree with the lower court."

The video game case is just one of a number of major business-related cases before the justices, including four that feature questions on when federal law preempts state law. One, on the issue of whether federal law preempts a plaintiff from suing Mazda Motor Corp. under California law, is the case in which the court will review a California Court of Appeal ruling. Williamson v. Mazda, 08-1314.

In August 2002, Thanh Williamson, a passenger sitting on an aisle seat in the second row of a 1993 Mazda minivan, was killed in a collision. She was wearing a lap seatbelt, which caused her body to jackknife, causing severe injuries and internal bleeding.

Her husband, Delbert, who survived the crash, sued Mazda in Orange County Superior Court alleging various state law product liability and negligence claims. Judge Hugh Michael Brenner dismissed the suit, agreeing with Mazda's argument that the Federal Motor Vehicle Safety Standard, the law that lays out minimum safety standards for vehicles, preempted the state law claims. At the time of the crash, it did not require shoulder belts for the aisle seats of minivans.

In an October 2008 opinion, the 4th District Court of Appeal affirmed.

The case has attracted significant interest from the business community, which has thrown its support behind the car company.

Maureen Mahoney, of counsel at Latham & Watkins in Washington, who is part of the team representing Mazda, said the case illustrates the difficulties car manufacturers face. On the one hand, they have to design cars that can be sold nationwide and meet federal standards, but on the other hand, they can face "crushing liability" in state courts even if they have met the national requirements, she said.

Plaintiffs' attorneys "must be entering the term with some trepidation," Mahoney added, in part because the now retired Justice John Paul Stevens was "their champion" when it came to preemption cases. His replacement, Elena Kagan, has recused herself from the Mazda case due to her previous role as solicitor general, which will make it even tougher for the plaintiffs, experts say. Kagan has so far recused herself in 25 of the cases the court has decided to hear.

Doug Kendall, president of the liberal-leaning Constitutional Accountability Center, who has filed an amicus brief on the side of the plaintiffs, conceded that Stevens' departure was a boon for Mazda, but he noted that in preemption cases, "the court's lineup does not split along ideological grounds." He also noted that recently the court has been more favorable to plaintiffs in preemption cases than it had in previous years.

One of the other preemption cases looks to many experts like another 9th Circuit reversal. The court will examine a challenge to an Arizona law requiring employers to check on the immigration status of their workers. The 9th Circuit upheld the law in a March 2008 opinion. An alliance of business and civil rights groups argue that the law is preempted by federal immigration law. Chamber of Commerce v. Whiting, 09-115.

Roy T. Englert Jr, a partner at Robbins, Russell, Englert, Orseck, Untereiner & Sauber in Washington, described it as "an easy case" for the Supreme Court, which will view it through the prism of "federal power versus state power," and likely find in favor of the federal government.

It may well be, however, that the biggest cases of the term haven't yet reached the justices.

Whether the cases that receive most of the attention from court experts and the media at the beginning of the term remain at the center of attention next June when the court hands down its final opinions depends on what petitions the justices look favorably on in the coming months in time for them to be argued before next term.

Many lawyers expect the court to take up the huge gender discrimination class action filed by female employees against Wal-Mart, Wal-Mart v. Dukes, 10-277. In April, the 9th Circuit approved class certification on a 6-5 en banc vote. If that case is argued this term, many court-watchers think it could end up as one of the major rulings.

"It's the 800-pound gorilla," Englert said.

State officials said late Wednesday they expected to release Michael Hutchinson within hours from prison, eight weeks after a federal judge overturned the Milpitas man's robbery conviction citing ``persuasive independent evidence'' uncovered by the Mercury News.

The impending release of Hutchinson, 39, came after his attorneys, frustrated by a series of delays, asked U.S. District Judge Jeffrey White to hold a state warden in contempt if Hutchinson were not released by the end of the day.

Even though his conviction was overturned June 22, Hutchinson's release has been hampered by a series of obstacles that his attorneys contended were ``artificial hurdles'' created by the prison system to delay freeing him.

The last of those hurdles was cleared Wednesday, when Santa Clara Superior Court Judge Jean High Wetenkamp filed an order clarifying that Hutchinson's sentence for a separate domestic violence charge had been fulfilled.

Officials said Hutchinson was being bused from a minimum security prison in Santa Cruz to a state prison in Susanville, 250 miles away. There, he was to be processed and released Wednesday night or this morning.

Neither Hutchinson nor his family could be reached.

Hutchinson was convicted in 2000 of being the masked intruder who burst into a Milpitas 7-Eleven in 1998, hopped the counter and took money from the cash register. His conviction was one of three highlighted by the Mercury

News that have been overturned since the paper published its series ``Tainted Trials, Stolen Justice,'' which documented widespread errors in Santa Clara County jury trials. Such errors increase the small chance of wrongful convictions.

A store clerk identified Hutchinson as the robber, though her testimony conflicted with her initial statement to police. Hutchinson, the only defense witness called by his trial lawyer, Dennis Kazubowski, testified he was somewhere else when the robbery occurred.

He was sentenced to 11 years in prison, and then entered a guilty plea to a separate domestic violence charge in return for an additional two-year sentence.

Before the 7-Eleven incident, Hutchinson had been in prison for assault with a deadly weapon. After his release, he became a pastor. A poster for his church, bearing his photograph, was displayed in the 7-Eleven before the robbery. An expert in eyewitness identification told the Mercury News that the photograph could have misled the clerk into a mistaken identification.

On appeal, Hutchinson's court-appointed lawyer, Robert Gehring, asked for money to hire an expert to show that the robber caught on camera was shorter than Hutchinson. But the 6th District Court denied the funds and rejected the appeal.

The case caught the attention of the Mercury News during its review of appellate cases and the newspaper hired Gregg Stutchman, a Napa forensics expert, to undertake the photographic examination the court refused to fund. Stutchman concluded that the height of the robber captured on film in a series of photographs as he burst through the door appeared to range from 5 feet to 5 feet 6 1/2 inches -- a range that he testified reflected different points in the robber's stride. Hutchinson, according to trial testimony, is 6 foot 1 or 6 foot 2.

Once Hutchinson turned to federal court, attorneys Lawrence A. Gibbs and Clifford Gardner took his case without charge, arguing that his constitutional rights had been violated by Kazubowski's failure to investigate the photographic evidence. After a June hearing in which Stutchman and Kazubowski testified, White overturned the verdict.

Days later, Hutchinson's lawyers first sought his release. The state countered that Hutchinson should remain locked up while prosecutors appealed.

But White on Aug. 1 ordered his release on $20,000 bond, an amount that proved difficult for his family to immediately post. On Aug. 10, after contributions from several Mercury News readers, the family posted the bond.

Court papers show the prison was still not ready to release Hutchinson. Deputy Attorney General Bruce Ortega told the judge last week that the prison would accept only certified copies of the judge's ruling releasing Hutchinson from the judge himself. So White forwarded his order. This week, Ortega told the judge that prison officials now insisted Hutchinson had to be re-sentenced on the domestic violence charge before his release -- even though Ortega and the Santa Clara district attorney agreed Hutchinson had served far more time than the domestic violence charge would require.

That prompted defense attorneys Wednesday to seek a contempt order if prison officials continued to keep Hutchinson locked up. ``The prison's position is utter nonsense,'' they said in court papers.

Ortega worked to rush the resentencing through Wednesday, resolving the final hurdle.

Even now, more than a year after he was freed from prison and seven years after the flawed trial that sent him there, Damon Auguste's thoughts are regularly interrupted by scenes from a nightmare.

It starts with the bedroom door flying open Nov. 2, 1997, and police officers asking him about a 15-year-old girl named Monique. It moves to rape and sodomy charges, a guilty verdict at trial, and his time in prison -- including a year in maximum security that Auguste considers the worst of his life.

And it features a recurring character, the man Auguste blames for his wrongful conviction and the long, bitter battle to find justice: Deputy District Attorney Benjamin Field.

''There's nothing you can ever do about what's already happened,'' Auguste said in a recent interview, explaining that he tries hard not to dwell on his ordeal. ''Of course, every now and then, you can't help that things flash into your mind.''

As difficult as the memories are, Auguste was lucky. His family had the money to hire a cadre of skilled lawyers whose vigorous investigation helped expose Field's questionable judgments and tactics during and after trial.

Field withheld the details of a key scientific examination, misstated evidence, and arranged invasive police searches of the homes of Auguste's mother and aunt. And he trusted the testimony of Monique, whose lies -- when ultimately exposed -- persuaded Superior Court Judge James Emerson to throw out the convictions of Auguste and a friend, Kamani Hendricks, who had been tried with him.

Field today says that he has taken criticisms of his conduct by Emerson to heart, though he insists he did not intentionally act improperly.



Fallout lingers

But even as the years pass, the ramifications of Auguste's ordeal linger.

The case derailed the ambitions of Field, a star within the Santa Clara County District Attorney's Office who had hoped to win this year's election to succeed his boss, District Attorney George Kennedy. And it left Field and Kennedy entangled in a Colorado lawsuit contending the district attorney's office acted illegally in searching the home of Auguste's aunt while she was in Africa on a charitable mission.

The case began with a chance meeting. In October 1997, Hendricks, an aspiring musician, chatted with a girl working the drive-up window at a Jack in the Box in Milpitas. According to trial testimony, the girl, Monique, lied and told him she was 17. The Mercury News is not printing her full name because of her age and the nature of the allegations.

Days later, Monique accompanied Hendricks to a house rented by Auguste, who owned a small music company. The three talked and drank vodka and champagne.

About 2:30 a.m., two hours after her curfew, the two dropped the girl off at a friend's house. There she called the police to say she had been raped.

Auguste made no statement to police. Hendricks told police he had not engaged in sex with Monique. But DNA evidence established that both men had intercourse with her, and analysts said it also suggested sodomy. There were microscopic flecks of blood on Monique's underwear, and small abrasions that a hospital nurse thought could be from forced sex.

Members of the Auguste family, who were not immediately aware of the facts, presumed Damon had done nothing worse than have consensual sex with an underage girl. ''I was in disbelief that it was a serious matter,'' recalled aunt Donna Auguste, a computer engineer who helped raise her nephew. Inexperienced in criminal matters, Donna Auguste and Karen Auguste, Damon Auguste's mother, found their first lawyer through the recommendation of a bail bond company; Karen Auguste chose an investigator based on the size of the advertisement in the Yellow Pages.

The trial came down -- as such cases often do -- to a credibility contest.

Monique testified that she had little experience drinking liquor before that night. And she said the incident inflicted emotional trauma: She was unable to go to school and became afraid of people. She said she had to stop work for about two months; when she returned, she had to be reassigned away from customers.

As inconsistencies became apparent during Monique's cross-examination, Field persuaded the judge to allow some expert testimony that rape victims often suffer confusion.

Auguste took the stand and insisted the intercourse was voluntary. Hendricks did not testify.

In his closing argument, Field emphasized that the girl should be believed because she had cut off social contacts -- exactly the way a rape victim would be expected to behave.

The jury convicted both men. On Oct. 27, 1998, Judge Robert Ahern sentenced Auguste to 18 years in prison. Hendricks, who had prior convictions for domestic abuse and discharging a firearm, was sentenced to 37 years.

In August 2000, a panel of the 6th District Court of Appeal affirmed the verdict.

But unlike most legal proceedings, which tail off after a conviction and a rejected appeal, this one was just getting started.

Donna Auguste, who recalls being stunned when the first lawyer she talked to wanted more than $15,000 for her nephew's case, opened her pocketbook to win a new trial. In the end, she would spend $900,000 on lawyers, investigators and experts -- and she and her sister would invest six years of their lives.

Even before the sentencing, Donna Auguste wrote to Ahern, complaining the family had not received from Field the technician's notes for the DNA reports offered at trial. Ahern ordered Field to turn over the material immediately.

Defense experts soon concluded that the DNA notes raised questions about whether sodomy occurred.

Defense investigators gathered statements from 17 people who contradicted Monique's trial testimony -- witnesses who had seen her drinking, young men who said they had sex with her, classmates who said her social life had not changed, and her fast-food manager, who said she had not altered her work habits. Most important was Stephen Smith, another sex partner who said Monique told him she had falsely accused Auguste and Hendricks.

And while Field at trial insisted that the girl had no motive to lie, the defense learned that in the previous school year she had been forced to move for a time to San Diego, after her stepfather walked into her room and found the girl and a classmate engaged in sex. Because the girl had broken her curfew the night of the alleged rape, it seemed there was a possible motive: to avoid trouble at home.

Cliff Gardner, whom the Auguste family hired to handle the request for a new trial, still marvels at the success of the investigation.

''It was one of the only times I've ever had the resources to do everything I wanted,'' Gardner recalled. ''I thought to myself, how many other defendants had names like Rodriguez, Jefferson, Hernandez, and were unable to raise these issues'' because they couldn't afford to?



Prosecutor labors on

But Field was not about to let his case crumble. Stoking his suspicion that the defense was orchestrating false evidence was a letter Damon Auguste wrote from jail to a friend. In it, he urged her to say she had been in his house the night of Nov. 2 and knew Monique was lying. In the story Auguste laid out, someone named Steve let her in.

''Rarely do you come up with a piece of evidence so damaging,'' Field said recently of that letter.

Field was especially curious about the mysterious Steve in Auguste's plotting and whether he was Stephen Smith -- the defense's crucial witness.

In 2003, as the two sides were preparing for a hearing on whether the new evidence merited a new trial, Field issued a series of search warrants seeking to establish that a nefarious connection existed.

Authorities raided the San Diego home of Smith, where they found no links to Auguste but did discover a small amount of an illegal drug; Smith later was convicted for possession. They also searched the homes of Smith's mother, of Smith's girlfriend, and of Karen Auguste.

It is unclear whether Field had the legal authority to order these searches -- search warrants are used to seek evidence of crimes, while both sides in a post-conviction proceeding such as this one normally would use subpoenas, which offer the other party advance notice and the opportunity to object.

In July, at a conference with Emerson, defense lawyers raised their own concerns about Smith, whom they had interviewed in Fort Knox, Ky. Smith had left the military, and the defense could not locate him.

Field did not disclose that he had found Smith in San Diego. Nor did he react when the conversation turned to Emerson's concern about Field's use of a warrant to search the home of Auguste's mother. Emerson directed Field to turn to Emerson if he sought any further search warrants.

But Field did not slow his pace. In the search of Karen Auguste's home, authorities had found a copy of a letter that Damon Auguste had sent to his aunt shortly after the guilty verdict, suggesting possible ways to get out of jail by almost any means -- including paying jurors, breaking out, even silencing Monique. Four days after the conference with Emerson, with the authorization of a judge in Colorado, a district attorney's investigator joined local authorities to search the Lyons, Colo., home of Donna Auguste for additional evidence of the alleged plot.

Donna Auguste was not home at the time. She and her husband were in Tanzania distributing medical supplies on behalf of the foundation she had created after selling her company, Freshwater Software.

Four months later, Emerson issued a scathing order regarding Field's conduct. Not only had Field violated his order on the search warrants, Emerson ruled, but his failure to disclose Smith's whereabouts was ''disturbing.''

Then, months after that, Emerson ordered a new trial for Auguste and Hendricks. This time he found that Field had improperly withheld exculpatory evidence when he failed to turn over the DNA notes. He noted that Field had overstated other evidence, referring to the girl's underwear as ''blood-soaked'' when the blood was not even visible. Most importantly, Emerson concluded that the girl had lied to the jury repeatedly in her testimony -- and that these lies offered strong reason to doubt her accusation of Hendricks and Auguste.

''Given that the evidence at trial was essentially a credibility contest between petitioners and the victim, this new evidence severely undermines [the girl's] credibility and suggests that petitioner's version of events was credible,'' he wrote.

After the order for a new trial, defense attorneys immediately sought Auguste's release on bail. But Field countered by filing a motion seeking bail to be set at more than $8 million. He referred again to the girl's ''blood-soaked clothing.''



Another review

Days afterward, the motion was withdrawn after Field's superiors received questions from the Mercury News about the case. Karyn Sinunu, the chief assistant district attorney, assigned a new attorney to review the case; after that review, the district attorney's office dropped the rape and sodomy charges and settled for a plea agreement to sex with a minor.

Field continues to insist that the case appeared to be strong and believes to this day that Auguste and Hendricks are guilty. He called the contradictions in Monique's testimony minor, adding, ''The details are not as important as the strength of her testimony. It is a difficult thing for anyone in that situation. It wouldn't surprise me if she made misstatements'' about such matters as the amount of time she was off work, or the amount of alcohol she drank in her life.

He also insisted that he had no intention to withhold any information from the defendants. And the search warrants, he contended, were justified and appropriate.

But Field, who has been reassigned to the office's ''three-strikes'' team, dropped his plans to run for district attorney after the case ended. Sinunu is now a leading candidate in that contest. Field is seeking a judicial post.

These days, Damon Auguste is spending his energy trying to establish his music company, which recently issued an album by a local rap artist.

Meanwhile, the lawsuit in Colorado is pending, though prosecutors have won early motions over the issue of whether they enjoy immunity under the law for the searches.

''This sequence of events was so wrong on so many levels,'' Donna Auguste said in an interview in Colorado. ''At every turn, it seems justice was buried under actions that were unfair, unjust, boldly inaccurate. I thought our system was better than that.''

For years, Dung Pham has contended that he was denied access to evidence that could help prove another young man committed the 1996 murder that sent Pham to prison for 29 years to life.

Now, after the federal courts finally granted Pham access to the forensic evidence, his attorneys have gone back to court with a startling discovery: Contrary to what jurors at Pham's trial were told, the other man had gunshot residue on his hands hours after the fatal shooting.

Armed with that evidence, Pham, now 30, is asking a federal judge to overturn his first-degree conviction for the murder of Tong Nguyen outside a Vietnamese cafe in southeast San Jose. The 9th Circuit U.S. Court of Appeals said last year that the evidence "would significantly bolster" Pham's defense.

Authorities are not persuaded. Lane Liroff, the veteran deputy district attorney who prosecuted the case, said Pham was given all the evidence that existed before his trial. And in a recent interview, Liroff said the existence of gunshot residue on the other man's hand proves To him, the federal case is nothing more than a desperate effort by a guilty man to overturn his murder conviction.

While much about the case remains in dispute, this much is clear: At his trial, Pham was unable to contradict forensic analyst Mario Soto when Soto told jurors that gunshot residue evidence was inconclusive. Today, both sides agree that Soto did not test a complete sample. And a new round of tests has provided a starkly different result.

Latest twist

But the belated re-examination of the physical evidence is only the latest twist in a case that has been both a murder mystery and a drawn-out legal dispute over whether Pham was prevented from developing his defense.

At his trial, Dung Pham's attorneys told jurors that another person - Tuan Hoang - was the real gunman.

Eyewitness accounts, after all, had led police to arrest Hoang hours after the murder. Witnesses said two teenagers chased the victim and shot him outside the Thuy Huong Cafe. The gunmen ran behind the cafe, where they apparently handed off their weapons to a third teenager before fleeing in a waiting car.

The victim's brother, John Nguyen, saw Tong Nguyen being chased and heard the shots that killed him. He told police one of the gunmen was a youth nicknamed "Mole," for the mark on his lip. "Mole" has never been found.

The mystery surrounds the identity of the other gunman and any accomplices who may have helped plan the crime and dispose of the guns. John Nguyen told police he did not get a good look at the second shooter, but believed he recognized him as the driver of a green Acura he had seen the day before.

Bystanders said the second shooter was wearing a blue shirt and dark pants. One witness told police he watched the gunmen jump into a waiting black car and flee after the shooting. He gave police the car's license plate, which was traced to Tuan Hoang. Hoang was arrested hours later outside his home with a second youth, Nhue Giang. Hoang was wearing a blue shirt and khakis.

Original charges

Police took Hoang and Giang into custody, tested their palms for gunshot residue and created photographic lineups to show witnesses. One eyewitness chose Hoang's photo as the one that looked like the second gunman. On May 23, 1996, Hoang was charged with the murder; no charges were brought against Giang, who Liroff said "was not a suspect."

Hoang's attorney, Evans Prieston, approached Liroff, concerned that his client was innocent. Liroff said he re-examined the case and became concerned about relying on an uncertain eyewitness identification. Mistaken identification is a frequent cause of wrongful convictions.

Soon, other teenagers at the cafe who were friends of Hoang's came forward to say he was innocent. They told police Dung Pham was the second shooter; "Mole" was the first gunman and a third youth, Son Nguyen, helped plan the murder and dispose of the weapons. Pham drives a green Acura, the car the victim's brother had connected to the second shooter.

Liroff arranged for Hoang to take a lie detector test, which he passed. The case took a dramatic turn: Hoang was released, and Pham was arrested and charged with Tong Nguyen's murder. Liroff said his concern over prosecuting the right suspect should have made him a "hero."

The arrest and release of Hoang posed an additional prosecution hurdle, offering a ready-made defense to anyone who might later stand trial for the killing. Attorneys for Pham and Son Nguyen - who separately was charged with helping plan and carry out the murder - did just that, building their defense around the theory that police had been right all along and that Hoang was the killer.

The prosecution's case became even more difficult by the November 1997 trial because the three teenagers who initially implicated Pham and Son Nguyen, and helped clear Hoang, backed away from their statements to police. As Deputy Attorney General Glenn Pruden would later write: "That there were a number of different and conflicting stories told by many of the witnesses goes without saying."

On top of all that was the issue of the gunshot residue evidence.

Prosecutors are required before a trial to turn over any relevant evidence requested by the defense. Additionally, under the U.S. Supreme Court decision in Brady vs. Maryland, prosecutors must turn over any material evidence that may be helpful to the defense - regardless of whether it is requested.

In preparation for the trial, Allen Schwartz, Pham's attorney, in September 1997 filed a request for a list of 14 items of evidence gathered by the prosecution, including "results of physical or mental examinations, scientific tests ..." and copies of all "criminalists and/or crime lab personnel notes."

Two weeks before the trial, Son Nguyen's attorney, Alfredo Morales, subpoenaed Soto to show up in court with any notes he took as he examined the residue samples from Hoang and Giang.

Evidence dispute

Exactly what was turned over - and when - is in dispute.

Both sides agree that Liroff provided the defense with a one-page report from Soto, who said he found "particles consistent with but not unique to gunshot residue" on both Hoang and Giang.

Soto was called as a defense witness by Nguyen's attorney, Morales. He asked Soto detailed questions about his findings, which went beyond information in the one-page report. When Pham's attorney, Schwartz, asked additional questions, trial transcripts show that Soto stopped to refer to his notes.

Soto testified that his examination did not establish that Hoang had gunshot residue on his hands. Neither defense attorney produced evidence to contradict that conclusion; Liroff told jurors that was because Soto was correct.

The jury spent 14 hours deliberating before convicting both Pham and Nguyen of first degree murder in January 1998.

Four years later, after the appellate courts had upheld the jury's verdict, Pham's family hired Oakland attorney Clifford Gardner. Gardner obtained Schwartz's file, which he said was well-organized. But he said he found no evidence that Schwartz had been given Soto's notes.

Such notes, said Gardner, are key to challenging prosecution experts. At the time, Gardner was representing another Santa Clara defendant, Damon Auguste, in a dispute involving the belated discovery of lab notes. The convictions of Auguste and co-defendant Kamani Hendricks were overturned in 2003 after a protracted battle over withheld notes that experts said contradicted the finding that the two men had sodomized a 15-year-old.

Gardner contacted Schwartz, who said he could not recall whether he ever got the notes. But if he had, he said, they would have been in his file.

In June 2002, Gardner turned to the state Supreme Court contending that the combination of Liroff's failing to turn over Soto's notes and Schwartz's failing to press the matter had denied Pham a fair trial. Gardner wanted an order requiring the state to turn over the notes so he could determine if information useful to the defense had been withheld.

In a recent interview, Liroff expressed outrage at the notion that he withheld evidence, intentionally or not. In fact, in response to problems of withheld evidence raised in the Mercury News series "Tainted Trials, Stolen Justice," Liroff helped organize a Santa Clara County Bar Association seminar devoted to the issue this fall.

Liroff says the defense's detailed questioning of Soto at trial and the fact that Soto referred to his notes as he testified are proof that the notes must have been turned over.

Gardner is convinced the evidence shows otherwise. There is no cover letter from Liroff to document whether he did provide the notes. And Morales' subpoena shows that weeks before the trial, he was still seeking the notes.

Gardner thinks it is plausible that Liroff only had the report, without the notes, in his file, and sent the defense what he had. And even if Soto, in response to a subpoena, sent the notes to Morales, they may not have been passed along to Schwartz.

But under the Brady rule of disclosure, Liroff had a duty to track down any potentially helpful and material notes, whether they were in his file or the files of police, laboratories or other experts working for the prosecution. Liroff is confident he did so.

Even if the notes had made their way to Schwartz, Gardner said it is clear that Schwartz did not develop the evidence. If the prosecutor did not fail in his obligation, argues Gardner, then Pham's own attorney did.

Shift to federal court

The state Supreme Court rejected Gardner's petition in February 2003. Gardner then turned to the federal courts, where the legal battle stretched on for years.

The state, represented by deputy attorney general Pruden, fought against turning over the notes. While conceding that the notes had been withheld from Pham before trial, Pruden maintained that because Gardner had not proven they contained material information that might help the defense, there was no duty to turn the notes over. Gardner, he argued, was on a fishing expedition.

Gardner argued that he was in a legal Catch-22: He was expected to show that material he had never seen would help his case.

After more than two years, the 9th Circuit U.S. Court of Appeals in March 2005 reversed U.S. District Judge Phyllis Hamilton and sent the case back for her to order that the notes be turned over to Gardner.

Once he got them, Gardner turned to a forensic scientist, who discovered that Soto had only tested 59 percent of the samples taken from Hoang and Giang. Gardner wanted to retest the complete sample and bolstered his request with the results of a lie detector test, which Pham had taken and passed.

Over Pruden's objections, Judge Hamilton last July ordered the state to turn over the remaining sample. The re-testing produced a dramatic result: More than 10 years after the murder of Tong Nguyen, Gardner learned that - contrary to what jurors were told at Pham's trial - gunshot residue was present on both Hoang and his companion.

This month, the state notified Gardner that its own testing confirmed the new result. Still, in his upcoming response to Gardner's motion to overturn Pham's conviction, state attorney Pruden has no intention of conceding that Pham was wrongly convicted.

In an interview, Pruden said he recently reread Soto's testimony and now shares Liroff's view that the defense had the notes before trial. Furthermore, both Pruden and Liroff contend that scientific studies now cast doubt on the significance of gunshot residue testing.

Liroff said that the fact that Hoang's hand was not sampled until he arrived at the police station, hours after the murder, raises concerns that the sample could have been contaminated while Hoang was sitting in a police car or at the station. It is, he said, "a very imprecise science."