Tuesday, October 4, 2005
Justices Turn Down Petition From Septuagenarian on Death Row
Lockyer Seeks January Execution of Man Convicted of Ordering Murder of Witness
By KENNETH OFGANG, Staff Writer/Appellate Courts
Attorney General Bill Lockyer yesterday asked a Northern California trial court to set a January execution date for a 75-year-old inmate whose petition for writ of certiorari was rejected earlier in the day by the U.S. Supreme Court.
Lockyer urged the Superior Court in Glenn County to set Jan. 17 as the date when Clarence Ray Allen is to die death for masterminding the 1980 triple murder of Bryan Schletewitz, Josephine Rocha and Douglas Scott White at Franís Market in Fresno. A hearing on the attorney generalís motion was set for Nov. 18.
The high courtís order, issued without dissent, is the latest in a series of legal setbacks for Allen. In January, the Ninth U.S. Circuit Court of Appeals denied his bid for panel rehearing or en banc rehearing of the denial of his federal habeas corpus petition.
At the time of the Franís Market murders, Allen already was serving a life sentence in Folsom Prison for orchestrating the 1974 murder of Mary Sue Kitts. Schletewitz testified against Allen at the Kitts murder trial.
Prosecutors said that Allen, while at Folsom, conspired with fellow inmate Billy Ray Hamilton to murder witnesses who had testified against him, including Schletewitz. When Hamilton was paroled from Folsom Prison, according to testimony, he went to Franís Market where Schletewitz worked and murdered Schletewitz and fellow employees Rocha and White with a sawed-off shotgun and wounded two other people.
Hamilton was arrested five days later, and police said he had on his person a ďhit listĒ with the names and addresses of witnesses who testified against Allen at the Kitts trial. Hamilton is also on Death Row.
The Franís Market trial was moved to Glenn County because of extensive pretrial publicity in Fresno County. It was prosecuted by the Attorney Generalís Office because an attorney who had represented Allen in a previous murder case had subsequently gone to work for the Fresno County district attorney.
One of the prosecutors, Ronald Prager, is now a San Diego Superior Court judge.
In addition to the murders and attempted murders, Allen was convicted of conspiring to murder eight people who had testified against members of a robbery ring over which Allen, who had been in the security business, was said to have presided.
Special circumstances of prior murder, multiple murder, and witness killing were found true. In the penalty phase, prosecutors presented evidence of Allenís involvement in 10 prior violent crimes and of six prior felony convictions.
The California Supreme Court upheld the death sentence in 1986 and the U.S. Supreme Court denied direct review in 1988; Allenís habeas petition was denied in a ruling by a Ninth Circuit panel in May of last year.
That panelóJudges Kim M. Wardlaw, Susan Graber, and Richard Clifton agreed that Allenís trial lawyer had rendered substandard performance in failing to present a case in mitigation. But it agreed with the other courts that had heard the claim that there was no prejudice because there would not have been enough evidence to overcome the strong evidence in aggravation, given the viciousness of the killings, the fact that they were part of a conspiracy which included plans to murder four other people, and the defendantís past criminal history.
It was ďnot reasonably probable that even one juror would have held out for a life sentence over death,Ē Wardlaw wrote. Wardlaw added that, ďIf the death penalty is to serve any purpose at all, it is to prevent the very sort of murderous conduct for which Allen was convicted.Ē
Allenís appellate lawyer, Michael Satris, was not available for comment yesterday. When the panel decision was handed down, he told The Recorder, a San Francisco legal newspaper, that the panel was wrong to have conducted a hypothetical penalty phase by weighing evidence the jury never got to hear.
Copyright 2005, Metropolitan News Company