Wednesday, January 14, 2009
Page 3
Court of Appeal Orders Board to Reconsider Parole for Hired Killer
By KENNETH OFGANG, Staff Writer
Prison authorities must release hired killer Paul E. Gaul within 30 days unless a parole board finds that there is new evidence that he is a current danger to society, the Court of Appeal for this district ruled yesterday.
Div. Seven granted a writ of habeas corpus to Gaul, who has been in custody since 1991 and is serving a 15-year-to-life sentence for killing James Bernstein, Gaul’s housemate and himself an accused hired killer.
Gaul admitted that he was hired by Mary Ellen Samuels, a Northridge resident, to kill Bernstein for $5,000.
Samuels is now on Death Row for hiring Bernstein to kill her husband and hiring Gaul to kill Bernstein.
Samuels had her husband killed in order to gain $240,000 in insurance proceeds, $70,000 from the Subway sandwich shop that they continued to co-own, even though they had been in divorce proceedings for 26 months before Robert Samuels was murdered, and $160,000 as a result of refinancing the family home, the California Supreme Court said when it upheld her death sentence four years ago.
Police and prosecutors called Samuels the “green widow” after she spent virtually all of that money in less than a year. A photograph introduced in evidence, taken by a male companion sometime after the killings, showed Samuels in bed covered with nothing but currency.
Robert Samuels was killed at his home with a shotgun. The day after his body was found, Bernstein took out a $25,000 life insurance policy, naming Samuels’ daughter, Nicole, as beneficiary, according to testimony.
Seven months later, Bernstein was found strangled, beaten and dumped along the highway in an isolated Ventura County canyon.
Gaul admitted the killing and agreed to plead guilty to second degree murder and cooperate with prosecutors in exchange for a 15-year-to-life sentence and a recommendation for parole at the earliest time.
He was turned down for parole in 1998, 2001, and 2003. In 2005, the board found him suitable for parole, but was overruled by Gov. Arnold Schwarzenegger.
In explaining his decision, the governor acknowledged the recommendations of the prosecutor and sentencing judge, and the board’s findings that he had an excellent prison record and realistic post-release plans, and that he had participated in substance abuse programs and expressed remorse for the crime.
Schwarzenegger, however, found that those factors were outweighed by “the gravity of this atrocious murder” and that Gaul had made conflicting statements over the years, suggesting on occasion that he killed Bernstein not solely for money, but also because Samuels convinced him that Bernstein was a cocaine dealer and was somehow involved in the drug-related death of Gaul’s brother.
Gaul “would pose an unreasonable risk of danger to society if paroled at this time,” the governor said.
A new parole hearing in 2006 resulted in another finding of suitability, which addressed the governor’s findings of the previous year, stating that Gaul “understands the nature and magnitude of the offense and accepts responsibility for the criminal behavior.” The board noted that a recent psychological evaluation, along with one prepared four years earlier, refuted the claim that Gaul was currently dangerous.
The governor, however, again vetoed Gaul’s release, for reasons similar to his previous decision.
Gaul’s next parole hearing, in November 2007, resulted in a finding that he was unsuitable for release. While his behavior in prison was a “most positive factor,” the board found that his release posed an unreasonable risk to society because of the nature of the crime, his unstable social history, and his need for additional therapy.
Gaul, who already had a petition for writ of habeas corpus pending in the Court of Appeal as a result of the 2006 denial, filed another one. The Court of Appeal issued an order to show cause, allowing the attorney general to explain the impact of the Supreme Court rulings in In re Lawrence (2008) 44 Cal.4th 1181 and In re Shaputis (2008) 44 Cal.4th 1241.
The high court held in those cases that a decision by the board or the governor to deny parole to a life prisoner will be upheld by the courts if there is “some evidence” that the inmate is currently dangerous, but that an inmate who is not currently dangerous may not be kept in prison based solely on evidence that the underlying offense was especially heinous, or that another unsuitability factor such as lack of remorse or social instability applies.
Presiding Justice Dennis Perluss, writing yesterday for the Court of Appeal, said that unless evidence of his conduct subsequent to the 2007 hearing justifies a different result, Gaul must be released.
“We do not quarrel with the Board’s evaluation of the aggravated nature of the commitment offense, which appears to be the primary ground upon which it denied parole,” Perluss wrote. “However, as explained in Lawrence...‘the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner’s pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.’ Neither Gaul’s pre-incarceration social history nor his current mental state‑‑the only two other factors identified by the Board‑‑indicates in any way that Gaul remains a continuing threat to public safety.”
Evidence cited by the board that Gaul had moved around frequently and was in arrears in child support before he went to prison did not establish that he had “a history of unstable or tumultuous relationships with others” and was too old to have a rational relationship to the board’s determination of current dangerousness, Perluss said.
Nor, he wrote, did the board justify relying on a 10-year-old psychological evaluation to determine that Gaul was unwilling to take responsibility for his actions, when there were more recent evaluations with contrary conclusions.
Attorneys on appeal included Deputy Federal Public Defenders John Littrell and Gail Ivens for Gaul and Deputy Attorneys General Anya M. Binsacca and Charles Chung.
The case is In re Gaul, B209368.
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