Metropolitan News-Enterprise


Tuesday, July 12, 2011


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S.C. Upholds Death Sentence for White Supremacist Inmate

Justices Say Racial Views Were Relevant, Even Though Victim Was Also Caucasian




 Evidence of a white convict’s white supremacist views was properly admitted to explain the motivation for his stabbing of another Caucasian inmate, the California Supreme Court ruled yesterday.

The justices unanimously upheld the death sentence for Kenneth Ray Bivert, convicted 10 years ago of the 1996 murder of Leonard Swartz at Salinas Valley State Prison. Prosecutors said Bivert killed Swartz because the victim was a pedophile, and thus had a “defect” that made him, in Bivert’s view, a discredit to the white race.

Bivert was at SVSP serving a 52-year-to-life sentence for three murders near the Sacramento River around Labor Day, 1987. Bivert, 17 at the time, and a friend shot and killed a fisherman in order to steal his truck, took it for a joyride, then shot and killed a couple at a nearby spot a few days later and took their car to Oregon, where the two were apprehended.

Bivert was one of a number of inmates in the vicinity of Swartz’s murder. A number of inmates were called to testify as to Bivert’s activities before and after the stabbing.

The defendant, they explained, was considered a leader of the “woods,” or white inmates, in a self-segregated cellblock of the prison. He repeatedly told the inmates that he considered his duty to uphold the supremacy of the white race, and that the standards of that race needed to be upheld by getting rid of pedophiles like Swartz.

Administrative Segregation

After the murder, Bivert was moved to administrative segregation at Pelican Bay State Prison, where he continued to espouse his views. He told fellow inmates that he was involved in a stabbing at SVSP, according to the testimony, describing it with specific details matching those of the Swartz killing.

He told one inmate that he avoided being caught with Swartz’s blood on his shirt by tossing the shirt away and putting on another one. A prison employee testified to finding a shirt with red spots on the sleeves and wet with perspiration, in a stairwell near the stabbing site.

Jurors found Bivert guilty of first degree murder, with special circumstances of prior murder and lying in wait, and also of assault with a deadly weapon by a life prisoner.

The assault conviction was for an attack on inmate Rick Dixon four months before the murder. The victim said he was stabbed with an ice pick because he refused the defendant’s demand that he stab an inmate named Dennis who was said to be a pedophile, as well as to have breached the cellblock’s racial divide by buying drugs from a black inmate.

In the penalty phase, prosecutors presented evidence of several other incidents of violence involving the defendant. The defense put on no evidence, and jurors deliberated less than 90 minutes before returning a death penalty verdict.

Monterey Superior Court Judge Wendy C. Duffy, now a justice of the Sixth District Court of Appeal, denied the automatic motion for modification and imposed the death sentence.

Racial Philosophy

On appeal to the high court, the defense argued that because Bivert and Swartz were both white, the extensive evidence regarding the defendant’s racial philosophy was irrelevant and prejudicial. But Justice Kathryn M. Werdegar said the judge properly allowed the testimony in order to explain the motives behind the attack.

“The evidence that defendant was in charge of an association of White inmates at SVSP, that he assigned duties to himself and others, and that the duties included actions designed to effectuate his desire to ‘clean up’ the White race by eliminating child molesters and to punish White inmates who associated with inmates of other races, was relevant in the guilt phase of trial,” Werdegar wrote. “This evidence tended logically to prove defendant harbored the intent and motive to assault Dixon for not obeying his commands, to assault Dennis because he purchased drugs from an inmate of another race, and to kill Swartz for being a child molester. It also tended to prove defendant’s prior attitude toward the victims, which was a relevant factor in determining whether his actions were deliberate and premeditated.”

Werdegar also rejected the defense contention that the trial judge should have empaneled a separate jury to determine whether the defendant was previously convicted of murder. By submitting that issue to the same jury that decided guilt, counsel argued, the judge deprived the defense of the opportunity to question prospective jurors on whether the prior convictions would impel them to vote for the death penalty.

The justice explained that under prior cases, the proper procedure generally is the one Duffy followed, which is to bifurcate the prior-murder allegations and to try them after the jury finds the defendant guilty of the charged murder.

That procedure was not fundamentally unfair to Bivert, Werdegar wrote, because the defense did ask prospective jurors hypothetically how they would treat various special circumstances, including a prior murder conviction, and was able to elicit jurors’ views on the death penalty in that manner.

Also yesterday, the high court unanimously denied a habeas corpus petition by Mark Christopher Crew, convicted in Santa Clara Superior Court of the 1982 murder of his wife. Her body was never found, but friends of the defendant testified that Crew—who had asked another woman to marry him shortly after he married the victim—said he told them the details of how he committed the murder and dismembered the corpse, throwing part of it off a bridge into San Francisco Bay and burying the rest of it.

In his habeas corpus petition, Crew contended that his trial lawyer was ineffective in failing to present evidence that Crew was sexually abused by his mother during childhood..

But Justice Joyce L. Kennard, who also wrote the 2003 opinion affirming the death sentence, said that even if Crew received substandard representation—an issue the court found unnecessary to decide—he suffered no prejudice.

A reasonably diligent investigation, Kennard said, would not have turned up sufficient evidence of the alleged molestation to persuade reasonable jurors not to impose the death penalty. She noted that Crew told his lawyers that he had a normal childhood, and that he apparently made no mention of the abuse to anyone until 17 years after the murder and 15 years after his mother’s death.

Crew, she pointed out, was in his late 20s when he committed the murder, and had served in the military and established stable relationships as an adult, suggesting that he was relatively unaffected by whatever problems he had in his youth.

“The mitigating evidence petitioner presented at the reference hearing of his dysfunctional family might have elicited some jury sympathy for him at the penalty phase of his capital trial,” Kennard wrote. “But petitioner showed no causal connection between his family environment and his cold-blooded and calculated decision to brutally murder his wife, Nancy, a few months after they were married, for the sole purpose of obtaining her money and possessions.”

The cases are People v. Bivert, 11 S.O.S. 3761, and In re Crew, 11 S.O.S. 3771.


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