Metropolitan News-Enterprise


Friday, August 7, 2020


Page 3


Ninth Circuit:

Inmate Convicted of Murder May Not File Habeas Petition

Defendant, Convicted Under Felony Murder Rule, With Rape Being the Underlying Felony, Is Denied Leave to File Second Habeas Petition, This Time Based on DNA Tests on Recently Found Evidence


By a MetNews Staff Writer


A man whose murder conviction was upheld by the California Supreme Court—which declared that evidence of prior unlawful sex acts was properly admitted because it related to the defendant killing his victim in the course of raping her—has been denied leave by the Ninth U.S. Circuit Court of Appeals to file a petition for a writ of habeas based on newly acquired evidence that no rape occurred.

Evidence showing that, a three-judge panel said in a memorandum opinion filed Wednesday, was nothing new.

Defendant Gary Story, who was convicted on Oct. 4, 2005, of an Oct. 22,1976 slaying, had filed a previous petition for a writ of habeas corpus which was denied by the U.S. District Court for the Northern District of California on Jan. 10, 2011. The filing of a subsequent petition requires the consent of the Circuit Court.

The permissible grounds are a showing either of a new rule of law or newly discovered evidence which points to innocence. Story claimed new evidence: vaginal smear slides, collected at the time of the autopsy of the victim which had been thought to be lost but were recently discovered, with a testing showing the absence of male DNA.

Cold Case Reinvestigated

Story was charged nearly 30 years after the killing of Betty Vickers, 26. The felony-murder rule was invoked, with the underlying felonies being rape and burglary for the purpose of rape.

Then-Santa Clara District Attorney George W. Kennedy (now retired) explained in 2005, two days after Story was convicted, that he reopened the investigation in hopes that DNA evidence would prove illuminating, only to find that the physical evidence was missing in light of the relocation of the Mountain View Police Department in 1980.

He recited:

“But, DA Investigator Ray Medved located two of Story’s ex-spouses who were then willing to testify against him and testify that he had admitted killing before and that he had gotten away with it. The circumstances described to one ex-spouse were such that he could only have been referring to Vickers’ murder.

“Medved also located two victims of Story’s Arizona rapes and an additional California victim of Story’s rapes. From those witnesses he learned that the rapes had been similar to the attack on Ms. Vickers. Thanks in part to criminal justice reforms of the 1990’s in California, that evidence was admissible in a trial of Story for Vickers’ murder.”

Reversal Is Reversed

The Sixth District Court of Appeal determined that it wasn’t admissible, reversing Story’s conviction, but the California Supreme Court on April 9, 2009, reversed that decision. Justice Ming Chin wrote:

“When a defendant is accused of a ‘sexual offense,’ Evidence Code section 1108 gives the trial court discretion to admit evidence of other sexual offenses the defendant committed….We granted review primarily to decide whether a defendant tried for first degree felony murder, with rape the underlying felony, is accused of a sexual offense under this definition.

“Because a murder during the course of a rape involves conduct, or at least an attempt to engage in conduct, proscribed by Penal Code section 261, we conclude that a defendant accused of such a murder is accused of a sexual offense within the meaning of section 1108.”

The vaginal smear slides were discovered in 2013, and subsequently tested. Story petitioned in 2015 in the Santa Clara Superior Court for a writ of habeas corpus, which was denied; the Court of Appeal summarily denied a petition; the California Supreme Court did the same.

Story’s Petition

In seeking leave of the Ninth Circuit to file a new petition in the U.S. District Court, Story argued:

“The medical examiner who had autopsied Vickers in 1976, Richard Mason, M.D., testified that he saw no physical indication or trauma that might be associated with rape….He similarly did not find am sperm or semen that would indicate a sex act had occurred. Id. Instead of using medical science to determine whether Vickers had been raped, the medical examiner claimed to use ‘common sense’ to assume that she had, basing his opinion on the tampon on the bed….According to Mason, the removed tampon was the only indication than any sex act had occurred at all….

“No sperm or semen was found on any part of Vickers’s body….Mason had found a significant amount of white discharge in Vickers’s vaginal area….The DNA evidence that has since been discovered contradicts any assumption that the discharge proved rape, because the evidence showed that there was no male DNA present on four vaginal smear slides taken at the time of Vickers’s autopsy.”


Ninth Circuit’s Action

It was based on Mason’s testimony that the Ninth Circuit panel—comprised of Senior Circuit Judges Barry G. Silverman, N. Randy Smith and Stephen S. Trott—denied leave to file a writ petition. It explained:

“Contrary to the applicant’s contention, the samples are consistent with the medical examiner’s trial testimony that he saw no physical signs of a sex act in the autopsy, and they do not undermine the circumstantial evidence presented at trial. The applicant has failed to establish by clear and convincing evidence that no reasonable finder of fact could have found he committed the crime in question but for the prosecution’s failure to turn over the samples prior to trial.”

The panel added:

“No further filings will be entertained in this case.”

The case is Story v. Borders, 17-71714.


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