Metropolitan News-Enterprise


Tuesday, August 28, 2012


Page 1


S.C. Criticizes Prosecution, Throws Out Death Sentence


By a MetNews Staff Writer


The California Supreme Court yesterday tossed out the death sentence imposed on a man convicted of killing two San Jose jewelers more than 25 years ago.

The court, in a unanimous opinion by Justice Joyce L. Kennard, said the prosecution in the case of Miguel  Angel Bacigalupo withheld evidence that would have lent credence to the defendant’s claim that he carried out the 1983 murders of brothers Orestes Guerrero and Jose Luis Guerrero under threats from Columbian drug dealers, and that he believed his whole family would have been killed if he had not complied.

Had the prosecution—led by then-Deputy District Attorney Joyce Allegro, now a Santa Clara Superior Court judge—disclosed that other witnesses, including a confidential informant, had told them of the cartel connection, the jury in Bacigalupo’s trial in 1985 may have been more sympathetic and recommended a sentence of life in prison without parole.

Prosecutors argued Bacigalupo killed the brothers during a robbery.

A court-appointed referee, retired Contra Costa County Superior Court Judge Richard Arnason concluded in a 2009 report that prosecutors concealed that evidence from Bacigalupo’s defense lawyers. Those findings were supported by substantial evidence, Kennard said.

Arnason found that the informant, Gail Kesselman, was “credible,” at the same time doubting the truthfulness of both investigator Sandy Williams and Allegro. Kesselman died of cancer after testifying to Arnason that the murders were connected to a drug kingpin with ties to the Medellín cartel.

Kennard wrote:

“Petitioner has established through evidence that he presented at the reference hearing and that the referee found to be credible that the prosecution violated its disclosure obligations under Brady…. when it withheld from the defense the…information it had obtained from Gale Kesselman.  As the referee found, that information would have supported petitioner’s claim to have acted under Colombian Mafia death threats in his killing of the Guerrero brothers.  Because substantial evidence supports the referee’s determination, and it is reasonably probable that petitioner’s penalty phase jury would have returned a verdict of life imprisonment without parole had it heard the evidence withheld by the prosecution, we grant petitioner’s requested relief from the judgment of death.“

The case is In re Bacigalupo, 12 S.O.S. 4394.


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