Metropolitan News-Enterprise


Tuesday, March 7, 2006


Page 1


S.C. Overturns Death Sentence, Cites Judicial Misconduct

Orange Superior Court Judge McCartin, Now Retired, Lacked ‘Patience, Dignity and Courtesy,’ Moreno Writes


By KENNETH OFGANG, Staff Writer/Appellate Courts


The California Supreme Court yesterday ordered a new penalty trial for the convicted killer of three men shot to death during a robbery at a Tustin auto store, saying the trial judge consistently showed favoritism toward the prosecution.

Orange Superior Court Judge Donald A. McCartin, who retired not long after sentencing Gregory Allen Sturm to death, constantly disparaged the defendant’s attorney and witnesses during the defendant’s second trial, Justice Carlos Moreno wrote for the court.

Sturm’s first trial resulted in his being found guilty of three counts of first degree murder, with special circumstances of multiple murder and murder in the commission of a robbery. Jurors split as to penalty, however, with 10 favoring life imprisonment without possibility of parole and two favoring death.

The second trial resulted in the death sentence. But comments by McCartin belittling the defense experts, together with the judge’s frequent interruptions of defense testimony to which the prosecutor did not object, gave the appearance that the judge had taken sides, Moreno wrote in a 5-2 decision.

“It was reasonably probable that the second penalty phase jury’s verdict would have been different had the trial judge exhibited the patience, dignity, and courtesy that is expected of all judges,” Moreno wrote.

Baxter Dissents

He was joined by Chief Justice Ronald M. George and Justices Joyce L. Kennard and Kathryn M. Werdegar, as well as Fifth District Court of Appeal Justice Gene Gomes, sitting on assignment. Justice Marvin Baxter, joined by Justice Ming Chin, dissented, arguing that the judge’s comments “were hardly as significant as the majority suggests” and that the horrific nature of the crime would have led to a death penalty verdict regardless.

Sturm, 22 at the time of the crimes, was convicted of killing assistant manager Darrell Esgar, 22, and employees Chad Chadwick, 22, and Russel “Rusty” Williams, 21. The three were gunned down Aug. 19, 1990, at the Tustin Super Shops store in a robbery that netted a little more than $1,000.

Sturm’s lawyer, Deputy Public Defender William Kelley, claimed Sturm was a habitual cocaine user who stole to buy drugs. He urged jurors to consider the defendant’s drug problems, youth, lack of prior criminal record, kindness to friends and family, and troubled background living with an abusive stepfather as grounds for mercy.

Prosecutor Lew Rosenblum countered that Sturm had no difficulty getting cocaine but robbed the store as part of a plan to obtain $5,000 to buy a motorcycle.

Borrowed Gun

Sturm was linked to the crime after a friend from whom he borrowed a gun, ostensibly to go shooting out in the desert, became concerned that it might have been used in the murders, which ballistics tests confirmed after Sturm returned the gun. Questioned by police, Sturm originally claimed that the robbery had been set up by a drug dealer, and that he agreed to help in exchange for drugs, but later admitted he had planned and committed the crimes by himself.

He reenacted the crimes on videotape, showing how he had bound and shot the three as one begged for his life and another quietly prayed.

McCartin imposed the death sentence, the ninth time he had done so after presiding over some 300 murder trials in 15 years on the bench, to which he was appointed in 1978.

But Moreno took the trial judge to task for:

Explaining during voir dire that it was a “gimme” that the killing was “premeditated, all over and done with,” since the defendant had already been convicted;

Suggesting that a pharmacologist, who was testifying as a defense expert on the effects of cocaine abuse and explained that he had received millions of dollars in federal grants working at the University of California, “contributed to the federal deficit;”

Warning a clinical psychologist, testifying about the abuse in the defendant’s gamily, not to use “a lot of adjectives and adverbs and so forth;”

Interrupting the defense case in mitigation more than 30 times on “which the trial judge either objected sua sponte or otherwise intervened to disallow a question asked by defense counsel in the absence of an objection by the prosecutor,” in contrast with the minimal number of times the judge disallowed evidence offered by the prosecution; and

“[R]epeatedly and improperly disparaging defense counsel, which conveyed to the jury the message that the court was allied with the prosecution.”

Moreno acknowledged that Kelley made “persistent attempts to push the boundaries of the trial court’s evidentiary rulings.” But that did not justify the judge repeatedly reprimanding defense counsel in front of the jury, creating the impression that the judge held Kelley in low esteem.

Baxter, however, argued that any damage done by the judge’s remarks was minimal and was cured by McCartin’s admonitions to the jury not to treat his comments as intending to influence the verdict.

The court also ruled yesterday in another capital case, holding 6-1 that Ralph International Thomas, convicted in the 1985 shooting and killing of two people in a homeless encampment near Berkeley, is not entitled to a new trial based on claimed ineffective assistance of counsel.

With Justice Joyce L. Kennard dissenting, the court held that while Thomas’ lawyer should have done a better job of investigating the claim that someone else committed the shooting, a better investigation would not have led to a better result.

Most of the potential witnesses would not have been located, and those who could have been would not have furnished strong enough testimony to overcome the strong circumstantial evidence pointing to Thomas, Justice Kathryn M. Werdegar wrote for the court.

The cases are People v. Sturm, 06 S.O.S. 1188, and In re Thomas, 06 S.O.S. 1198.


Copyright 2006, Metropolitan News Company