Metropolitan News-Enterprise


Friday, July 27, 2007


Page 1


Court Tosses Death Penalty Due to Ineffective Defense Counsel




A man convicted in the 1983 murders of a Van Nuys woman and her young son, allegedly committed at the behest of the woman’s husband so that he could collect life insurance proceeds, is entitled to a new penalty trial, the state Supreme Court unanimously ruled yesterday.

In an opinion by Justice Kathryn M. Werdegar, the high court said James Edward Hardy’s trial attorney, Michael Demby, failed to present mitigating evidence that might have resulted in a lesser sentence, including evidence that another man may have committed the acts attributed to Hardy.

The high court, however, rejected Hardy’s bid for a new trial as to his guilt. Werdegar said that at the very least, a reasonable jury would have found Hardy guilty of special-circumstances murder as a co-conspirator, even if Demby, a Los Angeles deputy public defender, had presented evidence of third party culpability.

Nancy Morgan, 44, and her 8-year-old son Mitchell were stabbed to death in their Saticoy Street home in May 1981. Hardy was arrested along with Clifford Morgan and Mark Reilly.

Charges Outlined

Prosecutors charged that Morgan, who stood to collect nearly $1 million in insurance benefits, hired Reilly, who in turn hired Hardy, and that the pair committed the murders after Morgan took a job in Nevada.

One of the prosecution witnesses, Calvin Boyd, testifying under a grant of immunity, claimed that Reilly tried to recruit him into the scheme. While he was interested and involved in the planning of the murders, Boyd testified, he dropped out of the plot because Reilly would not pay him in advance.

Boyd further testified that after the murders were committed, Reilly admitted that he and Hardy were the perpetrators.

All three defendants were convicted of first degree murder with special circumstances of multiple murder, murder for financial gain, and lying in wait. Reilly and Hardy were sentenced to death; Morgan was granted a separate penalty trial due to ill health but died of bone cancer before it could take place.

Hardy was also linked to the murders by witnesses who said he made statements suggesting his involvement, although he did not directly admit being involved in the actual killings.

Ineffectiveness as Charged

After his sentence was affirmed, Hardy filed a habeas corpus petition in which he accused Demby of failing to call character witnesses in the penalty phase, failing to conduct an adequate penalty-phase investigation, and making an unreasonable tactical decision to limit the penalty-phase defense to a lingering doubt argument.

Hardy subsequently filed a second petition, arguing—based on evidence presented at the hearing on the first petition—that a reasonable investigation would have produced evidence that it was Boyd, not Hardy, who was with Reilly on the night of the murders.

Witnesses said that Boyd had cuts on his hand immediately after the stabbings and told acquaintances he was the one who stabbed the child.

Werdegar, writing yesterday for the high court, said that Demby should have discovered seven witnesses whose testimony was “reasonably available” at the time of trial and who would have implicated Boyd. Those witnesses were not called, the justice explained, “[b]ecause Demby failed to ensure the investigation was reasonably thorough.”

The case was argued in the high court by Deputy State Public Defender and Deputy Attorney General Roy Preminger.

Unrelated Case

In an unrelated capital case, the justices yesterday unanimously upheld the death penalty for Lamar Barnwell for shooting three people to death. A police officer testified that after hearing shots, he raced to the crime scene and saw Barnwell standing over two of the victims and watched him fire the fatal shots before fleeing the scene.

Justice Carol Corrigan, writing for the high court, said that Los Angeles Superior Court Judge Morris B. Jones—since retired—erred in admitting evidence that Barnwell was seen, about a year before the murders, in possession of a gun of the same type as the murder weapon. Since there was no claim that the gun was the murder weapon, the testimony that Barnwell possessed it was irrelevant and potentially prejudicial, Corrigan wrote.

Its admission, however, was harmless beyond a reasonable doubt, the justice said, given that the murder weapon was described by the police eyewitness, recovered at the scene, and admitted into evidence.

The cases are In re Hardy, 07 S.O.S. 4602, and People v. Barnwell, 07 S.O.S. 4624.


Copyright 2007, Metropolitan News Company