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A California man has been taken off death row after the Santa Clara District Attorney’s office declined to retry the penalty phase of his murder trial. Miguel Bacigalupo’s death sentence was vacated by the California Supreme Court late last year due to the suppression of exculpatory evidence by a state investigator, Sandra Williams, who actively dissuaded the defendant’s trial lawyers from conducting an investigation that might have turned up the exculpatory information she was withholding.

The head of the prosecution team, Joyce Allegro, who went on to become a judge in Santa Clara County Superior Court and recently retired, was also found to have “issues regarding her credibility” in the case.

Williams, the lead investigator on the case, withheld information from a confidential informant that supported Bacigalupo’s defense at trial that he committed a robbery and the murder of two brothers at the behest of a Columbian drug cartel that threatened to kill his family if he didn’t follow through with the crime. Howard Mintz at Mercury News reported on Bacigalupo’s claims of prosecutorial misconduct before the Court delivered its decision:

The appeal stems from Bacigalupo’s conviction for killing Jose Luis Guerrero and Orestes Guerrero, who owned a jewelry store on The Alameda. At trial, Allegro argued that Bacigalupo shot the brothers in a straightforward jewelry heist.

Bacigalupo, however, maintained that the Colombian mafia ordered him to kill the brothers and that his family would have been murdered if he failed to carry out the “drug hit.” The jury heard scant evidence to back up a connection with drug traffickers.

But evidence unearthed during the appeal suggested Allegro and particularly her lead investigator, Sandra Williams, had strong information from a confidential informant that might have supported Bacigalupo’s claim. And the appeal has hinged on the fact the prosecution team did not share that information with Bacigalupo’s defense attorney before trial, as the law requires.

At the Supreme Court’s direction, retired Contra Costa County Superior Court Judge Richard Arnason held lengthy hearings over several years. One witness flown in from Venezuela confirmed that shortly before the murders Bacigalupo had met with Jose Angarita, a cocaine trafficker with ties to Pablo Escobar and the Medellin cartel, according to court papers.

The star witness for Bacigalupo’s appeal was Gale Kesselman, the confidential informant who had told Williams of the Colombian mafia link after Bacigalupo’s arrest. Arnason found “credible” her testimony that the “murders were orchestrated in part by Jose Angarita.”

Kesselman died of cancer after testifying before Arnason in 2006.

In his report to the Supreme Court, Arnason harshly criticized Williams and Allegro, repeatedly branding Williams, a former DA investigator, “not truthful” about her handling of the information. And while not as harsh toward Allegro, the judge said “there are some issues regarding her credibility.”

The attorney general’s office declined to comment. But in court papers, prosecutors say Arnason’s findings were “based on insurmountable legal errors and are largely unsupported by the evidence.”

Prosecutors argue Kesselman’s accounts were “dubious at best,” and that investigators deemed the Colombian drug connection to the murders speculative.

The California Supreme Court did not agree with AG’s assessment. In August last year the Court vacated Bacigalupo’s death sentence in a 7-0 ruling, finding that Williams told the confidential informant to withhold evidence at a pretrial hearing – a fact that was “quite troubling“. The Court said of the withheld evidence:

At the guilt phase, the prosecutor ridiculed petitioner’s claim of having acted under Colombian Mafia death threats. At the penalty phase, the prosecutor argued that there was “no evidence” of duress whatsoever, and that the evidence instead showed that petitioner had acted alone and that greed was his sole motive for killing the two Guerrero brothers. The prosecutor could not have made those arguments to the jury if Kesselman had testified, as part of petitioner’s penalty phase case in mitigation, that a major drug trafficker associated with the Colombian Medellin drug cartel had admitted to her that he had arranged the Guerrero killings by directing petitioner to murder victim Orestes Guerrero in his jewelry store. Such testimony would have cast the penalty phase case presented to the jury in a completely “`different light.'” (Strickler v. Greene, supra, 527 U.S. at p. 290.) Therefore, we cannot be confident that had such testimony been presented to the jury, it would have returned a penalty verdict of death. (See Kyles v. Whitley, supra, 514 U.S. at p. 435.)[3]

In a concurring opinion, Justice Liu added,

“[T]he referee found that Williams played an active role in discouraging defense counsel from pursuing a duress defense…

According to the referee, “the prosecution through Sandra Williams affirmatively told the defense that the information the defense had about any putative connection between the killings and a drug-related contract hit was not correct.” As a result, defense counsel believed and relied on Williams’s representations that further investigation of a drug connection to the murders would be a dead end. Thus, the prosecution did not simply suppress favorable, material evidence. It also affirmatively dissuaded the defense from pursuing a line of inquiry that would have uncovered such evidence. (See United States v. Bagley, supra, 473 U.S. at p. 682.)

Despite the brazen misconduct on the part of the state, the California Attorney General’s office and the Santa Clara County District Attorney’s office both defended the fairness of Bacigalupo’s trial on appeal. After the Court’s decision, Santa Clara District Attorney Jeff Rosen admitted that the ruling had given him pause for thought:

Rosen said that although he doesn’t know the details of Allegro’s handling of the evidence, he considers it a prosecutor’s responsibility to ensure all material is provided to the defense. “Any time you have a death penalty decision overturned, it should have everyone in the DA’s office refocusing and making sure they’re turning over all information they’re supposed to,” he said.

Read the Supreme Court’s ruling in full here.

Only Bacigalupo’s death sentence was at issue before the Supreme Court; he is challenging his conviction in a separate set of claims that are yet to be decided.


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