Metropolitan News-Enterprise


Tuesday, November 7, 2006


Page 1


Justices Will Not Review Order Reversing Death Sentence


By a MetNews Staff Writer


The U.S. Supreme Court yesterday declined to review a Ninth U.S. Circuit Court of Appeals ruling that threw out the death sentence of a man who killed the husband of his former therapist in an arson fire.

The justices, without comment, denied the state’s writ petition in the case of William Clark, who was sentenced to death for the murder of David Gawronski. The action means that Clark must either be retried as to penalty only or sentenced to life in prison without the possibility of parole.

The Ninth Circuit ruled earlier this year that Clark’s due process rights were denied because the California Supreme Court retroactively applied a new interpretation of the felony-murder special circumstance in upholding the death sentence imposed by then-Superior Court Judge Harry Mock Jr.

In 1982, Clark threw gasoline and a lighted flare into his former therapist’s home, killing Ava Gawronski’s husband. Their baby girl was unharmed after she was rescued by a neighbor.

Ava Gawronski lost her fingers, nose and had other injuries but survived.

Clark confessed to the crime and claimed that his purpose in committing the arson was to drive the family out of the home so that he could kill the husband by shooting him with a shotgun, as Gawronski watched. He claimed he did not mean to injure her, but wanted her to feel the same emotional pain that he did when she abruptly discontinued counseling him.

On appeal, he argued that jurors should have been instructed, under the law applicable at the time, that the felony-murder special circumstance does not apply unless the murder was committed in order to carry out or advance the commission of the underlying crime, or to facilitate escape or avoid detection.

Otherwise, according to the then-standard jury instruction based on People v. Green, 27 Cal. 3d 1 (1980), the underlying crime — in Clark’s case, arson — is incidental and does not qualify a defendant for the death penalty.

The state high court, in People v. Clark, 50 Cal. 3d 583 (1990), agreed with Clark that an instruction based on Green should have been given, but said the failure to do so was harmless.

The Ninth Circuit panel disagreed.

Judge William A. Fletcher said the justices adopted a “new interpretation of Green and applied it retroactively to Clark’s case.” The result, he said, was that the very theory of the case Clark’s “experienced and skilled trial counsel” presented to demonstrate that the special circumstance was not applicable had the effect instead of showing he was eligible to be executed.

Fletcher pointed out that the standard Green instruction, CALJIC 8.81.17, was subsequently amended to include a comment reflecting the holding of Clark that concurrent intent to kill and commit an independent felony will support a felony-murder special circumstance. No ruling before Clark made that development in the law foreseeable, he said.


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