State court tosses gang leader's death sentence

December 6, 2011 - 12:30 AM

SAN FRANCISCO (AP) — The California Supreme Court on Monday took the rare step of tossing out the murder convictions and death sentences of a Los Angeles gang leader who authorities believe was the "shot caller" responsible for dozens of murders.

The ruling was the court's first reversal of a direct death penalty appeal this year. The court affirmed the first 24 death penalty appeals it received in 2011, according to court spokeswoman Lynn Holton.

Cleamon "Big Evil" Johnson led the 89 Family Bloods during the 1980s and early 1990s. Authorities allege the 80 members of Johnson's gang were responsible for more than 60 slayings on their turf, which stretched for a quarter of a square mile in the heart of South-Central Los Angeles.

Johnson was convicted in 1997, along with Michael "Fat Rat" Allen, of murdering two rival gang members six years earlier. Prosecutors allege that Johnson ordered Allen to kill the rivals with an Uzi.

The rivals were killed at a car wash before dozens of witnesses, but no one would admit to witnessing the shooting. A local task force with the help of federal officials finally got witnesses to come forward and put Johnson behind bars.

During deliberations, two jurors told the judge they were concerned a third juror had made up his mind before all testimony was heard. After the judge interviewed the entire jury, the juror was removed from the trial for prejudging the case and relying on evidence not presented during the trial.

That juror was replaced with an alternate juror. The new jury found Johnson and Allen guilty of first-degree murder and recommended the death penalty for both. Los Angeles Superior Court Judge Charles Horan adopted the jury's recommendation in December 1997.

The replaced juror had reportedly told his colleagues that he didn't believe one of the witnesses who testified that he wasn't at work at the time of the killing because a Hispanic co-worker had punched his time card for him.

"That's a lie. I know Hispanics, they never cheat on timecards, so this witness was at work, end of discussion," the replaced juror was quoted as saying.

A unanimous Supreme Court found that comment didn't amount to relying on outside evidence.

"His positive opinion about the reliability of Hispanics in the workplace did not involve specialized information from an outside source," Justice Carol Corrigan wrote for the court. "It was an application of his life experience."

Corrigan also said the juror appeared to participate in deliberations with an open mind and noted he denied having prejudged that case. The court concluded that the judge presiding over the 1997 murder trial erred in removing the juror.

Allen's conviction and death sentence also were overturned.

Santa Clara University law school professor Gerald Uelmen said the justices had little choice but to reverse once they concluded that the judge improperly removed the juror.

He said the California Supreme Court upholds 92 percent of all the death sentences, usually ruling that any legal mistakes made during the trial were "harmless" errors that didn't affect the outcome.

Uelmen also said that most reversals only overturn the death penalty while keeping the conviction in place. He said it's incredibly rare for the court to overturn the death penalty and underlying conviction.

But Uelmen said that an improper dismissal of a juror is "structural error" that requires automatic reversal.

"While the Court frequently finds errors in capital cases, it usually concludes the errors were harmless, but couldn't go there in this case," Uelmen said.

Every death sentence is automatically appealed to the state's high court. There are 720 inmates on California Death Row.

Los Angeles prosecutors will have to seek a new trial if they want to reinstate those convictions and death penalties. The office said it was reviewing the ruling.

Supervising State Deputy Public Defender Andrew Love, who represented Johnson, told the Los Angeles Times he was thrilled by the ruling but also upset that it took so many years for the state high court to decide the case.

"This case involved truly outrageous conduct by the trial judge, who kicked a juror off the case in the middle of deliberations because it was reported by another juror that he was not persuaded by the prosecution's case," Love told the Times. "Reversal was a foregone conclusion."

Love said Johnson was on death row for five years before getting a lawyer to handle his appeal, and the California Supreme Court waited many more years to decide the case after it had been fully briefed.

"One of the primary reasons these cases take so long is the shortage of competent lawyers willing to handle capital appeals in the California Supreme Court — and a key reason why is the perception that the court does not undertake a careful, meaningful review of these cases," Love told The Times.

Lynda Gledhill, a spokeswoman for Atty. Gen. Kamala D. Harris, told the Times her office is considering a possible appeal to the U.S. Supreme Court. "We're disappointed but reviewing our options," Gledhill said.