September 19, 2012 http://www.sfgate.com

It’s the nightmare of capital punishment, for supporters and opponents alike – an innocent person condemned to death and executed.

As Californians prepare to vote in November on Proposition 34, which would reduce all death sentences to life in prison without parole, both sides on the issue agree that the state has never executed a prisoner who was later proved to be innocent.

Still, doubts persist about the guilt of an inmate who was put to death in 1998. And five men sentenced to death under current California law were later cleared of the murder charges that put them on Death Row.

Those five cases illustrate “how easily someone who did not commit the murder could have been executed,” said John Cotsirilos, lawyer for Lee Farmer, who was freed in 1999 after 17 years in prison.

Farmer was convicted of murdering a Riverside teenager during a 1982 burglary, based largely on a description by the dying victim. His death sentence was overturned in 1989 when the state Supreme Court ruled 4-3 that the prosecutor had wrongly told jurors they could disregard their feelings about whether he should live or die, because the voters had approved the death penalty.

Acquitted at retrial

Resentenced to life without parole by another jury, he won a new trial in 1997 based on newly disclosed evidence that an accomplice had admitted killing the teenager in a separate burglary. Farmer was acquitted of the killing at his retrial.

Farmer’s case is far from unique, Cotsirilos said, because convictions are often based on human observations that may convince a jury but can’t be scientifically verified. In California and other states, he asserted, “people have been executed whose cases had as much doubt as Lee’s.”

The outcomes of questionable cases like those should lead to the conclusion that “it’s just a bridge too far for human beings to try to make that judgment” between life and death, said Charles Bonneau, lawyer for an inmate who was released after 14 years on Death Row.

Troy Lee Jones was convicted of the 1981 murder of his girlfriend in Merced County, allegedly to prevent her from implicating him in an earlier killing that was never charged. A neighbor said she had seen Jones beat the victim and heard her promise to keep quiet, but there were no eyewitnesses to the murder and, according to a court ruling, there were other possible suspects.

The state Supreme Court overturned Jones’ conviction and death sentence in 1996 because of incompetent representation by his trial lawyer, who did little preparation, hired no investigators, and asked questions that led to incriminating testimony by witnesses, including the victim’s 8-year-old daughter.

Charges dismissed

Rather than retrying Jones, prosecutors dismissed the charges. By then, Bonneau said, he and a colleague had discovered that one prosecution witness had been mentally ill, and the victim’s daughter – tracked down, after an exhaustive search, in a small town in Arkansas – had recanted her testimony.

The opposing sides in the Prop. 34 debate take different lessons from cases like these.

“We know that we make mistakes,” said Natasha Minsker, director of the Yes on 34 campaign. By eliminating the death penalty, she said, “we will prevent making the ultimate mistake.”

But Mitch Zak, spokesman for the No on 34 campaign, which is backed by prosecutors and law enforcement groups, said the five reversals reflect a legal system that has the necessary safeguards against injustice.

Death penalty supporters favor “an efficient appellate process that guarantees due process but that also guarantees justice for victims’ families and the people of California,” Zak said.

Doubt after execution

California has the nation’s largest Death Row, with more than 720 inmates. Of the 13 who have been put to death since 1992, when executions resumed after a 25-year halt, little doubt was ever raised about the guilt of 12 of them. But one man, Thomas Thompson, was executed for a killing he may not have committed.

Thompson was convicted of raping and fatally stabbing Ginger Fleischli in 1981 in the Laguna Beach (Orange County) apartment he shared with Fleischli’s ex-boyfriend, David Leitch.

Both men were tried separately. The prosecutor in Thompson’s trial argued that Thompson had been alone with Fleischli and had the sole motive for killing her. Later, at Leitch’s trial, the same prosecutor argued that Leitch had been there and had ordered Thompson to kill Fleischli.

Leitch was convicted of second-degree murder. At a 1995 parole hearing, he said he had seen Thompson and Fleischli having apparently consensual sex that night. If jurors had heard that testimony and believed it, they could not have convicted Thompson of the capital charge of rape-murder, and because rape was the alleged motive for Fleischli’s murder, they might have cleared him altogether.

Jurors also weren’t told that two inmates who said Thompson had admitted the murder were informants with questionable records.

‘Haunted to this day’

The Ninth U.S. Circuit Court of Appeals cited those omissions in voting to overturn Thompson’s death sentence but was overruled in a 5-4 U.S. Supreme Court decision on procedural grounds – the appeals court had acted after its own deadline had expired. Thompson died by lethal injection in July 1998, declaring his innocence to the end.

His appellate lawyer, Andrew Love, said he remains “haunted to this day that my client was executed despite the possibility that he was innocent.” The case shows, he said, that innocent people may die when “a system of justice puts finality and expediency over fairness and reliability.”

Zak, of the No on 34 campaign, countered that Thompson “more than had his day in court” and also had his claims thoroughly reviewed by Gov. Pete Wilson, who denied clemency. “Justice was served,” Zak said.

Spared execution

Besides Farmer and Jones, the previously condemned prisoners who were released are:

— Patrick “Hooty” Croy, convicted of murdering a police officer during a July 1978 shootout in Siskiyou County.

The state Supreme Court overturned Croy’s conviction and death sentence in 1986, saying the jury was never asked to determine a crucial element of the capital murder charge: whether Croy had intended to take part in his friends’ robbery of a store for its ammunition, an act that led to the shootout.

His retrial was transferred to San Francisco, where a jury acquitted him of all charges in 1990 after hearing Croy, a Shasta-Karok Indian, testify about local bias against American Indians and his belief that he would be killed if he surrendered. He had been wounded twice in the gunbattle and said he fired the fatal shot in self-defense.

— Jerry Bigelow, convicted of kidnapping, robbing and murdering a man in a Merced cornfield in 1980.

The state Supreme Court overturned his convictions and death sentence in 1984, saying his trial had been a “farce” because Bigelow had been allowed to represent himself and was denied the assistance of an attorney to advise him. A jury acquitted him of murder in a 1988 retrial after hearing evidence that he had been asleep in a car while an accomplice killed the victim. He was released in 1989.

— Oscar Lee Morris, convicted of murdering a man in a Long Beach bathhouse in 1978.

The state Supreme Court overturned his death sentence in 1988, saying the prosecutor had withheld evidence of favors provided to Joe West, the witness who implicated Morris in the killing. The court upheld Morris’ conviction, but West recanted his testimony just before he died in 1997, and prosecutors later decided to drop the case. Morris was freed in 2000.