Metropolitan News-Enterprise


Wednesday, May 11, 2005


Page 1


Court Overturns Conviction in 1982 Murder of Local Drug Dealer


By KENNETH OFGANG, Staff Writer/Appellate Courts


A man who has served 23 years in prison for the murder of a Los Angeles drug dealer is entitled to a new trial if he can prove his claim that the chief prosecution witness made an immunity deal with police, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A divided panel reversed Senior U.S. District Judge Mariana Pfaelzer’s denial of James F. Horton II’s petition for a writ of habeas corpus. Pfaelzer had ruled that the California Supreme Court did not act contrary to Brady v. Maryland, 373 U.S. 83 (1963), when it held that even if the deal existed, it was immaterial to Horton’s conviction for the murder of Herschel “Lobo” Bowser.

A Los Angeles Superior Court jury found Horton guilty of first degree murder in 1985, and he was sentenced to death by then-Commissioner Michael Cowell, now a judge. The death sentence was later overturned on the ground that jurors had been improperly allowed to consider a prior murder conviction in Illinois as an aggravating factor, when the conviction should have been tossed because Horton’s counsel at the time had a conflict of interest and was absent during a critical portion of the trial.

Life Sentence

The state Supreme Court, however, allowed the conviction to stand, and Horton was resentenced to life imprisonment without parole. The justices later rejected his habeas corpus petition, in which he claimed that the chief witness against him, “Foo” McLaurin, who said that the defendant had confessed to killing Bowser with a hammer and stealing his cocaine, had a deal with police that he would not be prosecuted for his own involvement in the events leading up to the killing.

Pfaelzer said it was reasonable for the state court to find that the deal, if it existed, was immaterial because all of McLaurin’s testimony was corroborated by other witnesses.

But Judge Richard A. Paez, writing for the Ninth Circuit, disagreed:

“McLaurin’s testimony was the glue that held the prosecution’s case together. It was McLaurin’s testimony that described the plot and the motive to attack and kill Bowser. It was McLaurin’s testimony that linked Horton to the drugs and money that belonged to Bowser shortly after the murder. And most importantly, it was McLaurin’s testimony that revealed that Horton confessed to the crime.”

No other witness testified to the confession, Paez noted, saying that was “the most damning” of the prosecution’s evidence.

Rymer Dissent

Senior Judge Betty Fletcher concurred, but Judge Pamela Rymer dissented, saying McLaurin was such a thoroughly discredited witness that the conviction had to have been based on the rest of the prosecution’s case.

In a separate opinion by Rymer, for a unanimous panel, the judges rejected the remainder of the defense claims, including a contention that Horton was denied due process because he was not tried by a judge and did not stipulate to a commissioner. The court agreed that since defense counsel knew Cowell was a commissioner and did not object—it was suggested that a stipulation was prepared but inadvertently never signed—this was tantamount to a stipulation.

The case Horton v. Mayle, 03-56618.


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