Metropolitan News-Enterprise


Tuesday, May 5, 2009


Page 1


S.C. Denies Habeas Relief Over Juror’s Alleged Ties to Victim


By SHERRI M. OKAMOTO, Staff Writer


The California Supreme Court yesterday unanimously denied a death row inmate’s petition for habeas corpus relief, which the inmate based on a juror’s alleged personal connection to the murder victim through two witnesses.

Relying on the credibility determinations of San Francisco Superior Court Judge Mary C. Morgan, the appointed referee, the high court concluded that Clifford Stanley Bolden failed to prove by a preponderance of the evidence that a juror was biased or committed misconduct by failing to disclose his acquaintance with two witnesses.

The juror, identified only as Jose. S., served as an alternate juror for Bolden’s capital murder trial and was seated during the penalty phase.

Bolden was charged with murdering 46-year old Henry Michael Pedersen, an unemployed accountant, during the course of a robbery in September 1986.

At the time of the murder, Bolden was living with Andre Montgomery. Montgomery’s name was on a witness list that the trial court read at the outset of voir dire, but he never testified at trial.

Montgomery worked as a female impersonator at a nightclub which also employed Jose S., but Jose S. never disclosed any acquaintance with Montgomery to the trial court during voir dire or at any time during the trial.

Jose S. later testified that he was not very familiar with Montgomery’s last name—knowing him mainly as “Andre”—and that he might not have made the connection when the witness list was read. He also claimed that he did not recall hearing Montgomery’s name read as a potential witness, and that he would have disclosed his acquaintance if he had.

The juror also did not disclose any relationship with prosecution witness Thomas Sherck, who informed prosecutors when he arrived to testify that he recognized Jose S.

Sherck told the trial court, out of the jury’s presence, that he knew Jose S. through his partner and saw Jose S. at most twice a year, but did not think Jose S. knew him.

When the trial court questioned Jose S. out of the jury’s presence, Jose S. said he did not recognize Sherck.

The jury subsequently convicted Bolden and recommended the death sentence.

 In a petition for writ of habeas corpus, Bolden alleged that Jose S. had displayed bias and committed misconduct by not disclosing a prior relationship to Pedersen.  The California Supreme Court issued an order to show cause limited to these claims.

After the filing of Bolden’s return and the state’s traverse, the high court appointed Morgan as a referee to supervise discovery, take evidence, and make findings of fact regarding the extent of Jose S.’s acquaintance with Pedersen.

Morgan admitted into evidence a declaration by a juror identified as Charlia S., who died before the reference hearing began in 2007. Her declaration stated that Jose S. told her he knew Pedersen, and called the victim “a good man” who had provided assistance when Jose S. had “been in some kind of trouble when he was younger.”

At the hearing, Jose S. denied any prior acquaintance with Pedersen. Eight other jurors also testified that Jose. S. had never indicated any prior acquaintance with the victim, and Morgan found no personal acquaintance between Jose S. and Pedersen.

In his exceptions to Morgan’s report, Bolden insisted that his claim of jury misconduct and bias was not based on the truth of Jose S.’s alleged claim to Charlia S., but on his withholding of information demanded by the trial court.

Writing for the Supreme Court, Justice Joyce L. Kennard noted that Bolden’s argument effectively conceded that the evidence at the reference hearing did not establish the existence of any relationship between Jose S. and Pedersen.

Although she acknowledged that evidence the juror claimed to know the victim, if believed, could be relevant to Bolden’s claim of bias, Kennard explained it did not compel a finding in his favor on those issues.

Kennard also concluded that Jose S. did not suppress any information on voir dire that was material to any issue at trial or that demonstrated a bias against Bolden in the absence of any evidence that Jose. S’s relationship with Montgomery was likely to have prejudiced him against Bolden.

As Jose S.’s acquaintance with Scherck was limited, Kennard concluded his denial that he recognized the witness was plausible, adding that the relationship was also unlikely to produce a bias against Bolden.

Giving great weight to the referee’s credibility determinations, and her factual findings based on those determinations, Kennard also concluded Jose S. had not prejudged the penalty issue or failed to deliberate by forming an opinion based on the evidence presented at trial about the proper verdict before deliberations begin, and based on the juror’s refusal to be swayed by the arguments of other jurors after hearing their opinions and considering their points of view.

Kennard, joined by the full court, discharged the order to show cause. Bolden’s petition for writ of habeas corpus was denied by a separate order.

The case is In re Bolden, 09 S.O.S. 2529.


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