Metropolitan News-Enterprise


Wednesday, February 20, 2002


Page 1


Ninth Circuit Orders New Penalty Trial for Death Row Inmate

Panel Says Lawyer Should Have Addressed Mental Impact of Ex-Farmworker’s Exposure to Pesticides


By KENNETH OFGANG, Staff Writer/Appellate Courts


A death row inmate who grew up working in pesticide-soaked fields in Southern California is entitled to a new sentencing trial because his trial lawyer never presented evidence of the mental impact of exposure to pesticides, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The divided panel, which had earlier ordered an evidentiary hearing on whether Fernando Eros Caro was in fact brain-damaged, agreed with U.S. District Judge James Ware of the Northern District of California that Caro had established the existence of brain damage.

Caro, who is of Yaqui heritage, has become an artist of some note. He has painted murals at San Quentin, his paintings have been exhibited in the United States and Europe, and cards and posters depicting his work have been sold by Native American rights and anti-death penalty groups to raise money for his defense.

He is on death row for the murders of two teenagers who disappeared while on a bicycle ride and were shot to death at close range. He was also convicted of assault with intent to kill for shooting two other people on the same night, both of whom survived and identified him as their assailant.

In the penalty phase of the 1981 trial, prosecutors presented evidence of several past crimes, including two uncharged murders, a kidnapping conviction stemming from a forcible kidnap and rape, and two escape attempts.

Possible Defense

The Ninth Circuit panel previously concluded that Caro’s trial counsel failed to investigate a possible defense based on exposure to neurotoxicants, that the failure to do so was negligent and not strategic, and that such a defense might have been successful in the penalty phase if the existence of brain damage could be established.

Ware, after hearing the testimony of experts on neurology, psychiatry, and toxicology, concluded that Caro had “irrefutably” proven that he suffered brain damage resulting from toxic exposure and other factors, including childhood physical abuse and an auto accident that occurred during infancy.

The state presented no experts of its own, but brought out in cross-examination that Caro had performed well in school and in the Marine Corps, blood-tested negative for pesticide exposure, been found by mental health experts to be functioning normally before and after trial, and had acted in a rational manner in covering up the murders.

The judge granted the writ of habeas corpus, which the panel affirmed. Senior Judge Warren Ferguson authored the opinion, which Judge Harry Pregerson joined, while Judge Andrew Kleinfeld dissented.

State’s Argument

The state argued that Ware was clearly erroneous in ruling that Caro was brain-damaged at the time of trial. It also contended that Caro’s trial lawyer conducted a reasonable investigation regarding his exposure to toxics, and that a sufficient link between brain damage and toxics exposure could not have been proven at time of trial.

Ferguson disagreed.

“The District Court’s acceptance of the unanimous opinion of the experts that Caro suffers from brain damage is not clearly erroneous, considering that he was poisoned by extremely toxic pesticides (some of which are now illegal), suffered multiple head injuries, and exhibited many of the symptoms described by the doctors as consistent with both harmful exposure and resulting head damage,” Ferguson wrote.

The judge went on to say that Caro’s trial lawyer was negligent, in that he knew of his client’s exposure to pesticides but didn’t investigate it or advise his mental health experts of it. Expert testimony on the subject would have been “powerful mitigating evidence,” Ferguson said.

Insufficient Investigation

The defense lawyer’s ordering of a blood test for exposure to toxics was not a sufficient investigation, the judge went on to say. The results included an indication that Caro had been exposed to a fungicide, Ferguson said, reasoning that this should have led to further investigation.

The state was “mistaken,” the judge went on to say, in arguing that a connection between pesticide exposure and brain damage could not have been proven in 1981. He cited testimony before Ware that the link had been reported in studies as early as the 1950s, and that studies documenting long-term effects had been published by the early 1970s.

Kleinfeld, dissenting, said the panel’s 1999 ruling was “outlandish” in limiting the district judge to a determination of whether Caro suffered brain damage. Ferguson and Pregerson, he insisted, were retrying the case instead of determining whether trial counsel was ineffective.

Caro’s lawyer took reasonable steps to explore and present a case in mitigation based on his client’s mental condition, the judge said. The early research on the pesticide exposure-brain damage link, Kleinfeld argued, would not have been enough to persuade a 1981 jury to overlook the aggravating factors.

Kleinfeld said it “probably wouldn’t have made any difference to Caro’s death penalty even if his lawyer had somehow proved, before it was generally accepted in the medical literature, that Caro’s childhood pesticide damage had caused brain damage, in view of his competent intellectual and social functioning in college and in the Marines, and his relentlessness and recidivism in his monstrous rapes and murders.”

The case is Caro v. Woodford, 00-99013.


Copyright 2002, Metropolitan News Company