Metropolitan News-Enterprise


Friday, August 6, 2010


Page 3


High Court Upholds Mid-Trial Replacement of Judge in Capital Case


By a MetNews Staff Writer


The replacement of one Kern Superior Court judge by another after the first judge discovered on the second day of trial that a couple he knew was going to testify for the prosecution did not deprive the defendant of a fair trial, the state Supreme Court ruled yesterday.

The justices unanimously affirmed the death sentence imposed by Judge Lee Felice on Robert Wesley Cowan for the 1984 murder of Clifford Merck, 75, at his East Bakersfield home. Cowan was also convicted of killing Clifford Merck’s wife, Alma, 81, and sentenced to life imprisonment without possibility of parole for that crime.

Cowan was charged with the murders in 1994 and was tried and sentenced in 1996.

The trial began before Judge Stephen Gildner, who disclosed in open court that he had just realized that scheduled prosecution witnesses Jerry and Terri Jones were the parents of a very close friend of his son’s and he had learned that Terri Jones was related to Alma Merck.

The Joneses were expected to, and later did, testify that certain property items obtained by police may have belonged to the Mercks. The judge’s disclosure came during the testimony of Danny Phinney.

Property Seized

The witness had been arrested in a drug raid on a Bakersfield motel about a month after the murders. Certain property was seized from him at that time, and he told police, and subsequently testified, that he had gotten it from Cowan.

Following the disclosure, Gildner continued to preside over Phinney’s testimony, but announced the next day that after researching the law, he had decided to recuse himself and have the case reassigned to another judge.

Justice Carlos Moreno, writing for the high court, said that neither Gildner’s delay in recusing himself, nor the fact that Felice stepped in without being familiar with the prior testimony, violated the statutory or constitutional rights of the defendant.

As a matter of statutory law, Gildner was required to recuse himself at the point he realized such action was required, so his mere expression of concern the previous day did not trigger any such obligation. And there was no due process violation, he said, because the judge recused himself before the Joneses testified.

Earlier Proceedings

Nor was Felice required to familiarize himself with the prior testimony before taking over as judge, Moreno explained, because he had presided over some earlier proceedings in the case and was “was familiar enough with the pertinent portions of the record to exercise his discretion in an informed manner.”

The justice also rejected the claim that the 10-year delay between the crime and the arrest violated due process.

The delay, Moreno said, was not the result of intentional misconduct or even negligence, but simply police error in failing to recognize, until a new investigator was assigned to the case years after the fact, that fingerprints taken from the scene matched the defendant’s. And the defendant’s showing of prejudice from the delay was “very weak,” the justice said, in part because the defendant knew within months of the crime that he was a suspect, and thus had a motive to preserve any exculpatory evidence.

The original investigator, Moreno explained, had spoken to Cowan’s then-girlfriend, who had told Cowan about the interview, and Cowan had then called the investigator, telling him that Cowan had no information about the murders.

The case is People v. Cowan, 10 S.O.S. 4511.


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