It’s Another Reversal on Death Row

Police do not need a warrant to search the homes and other property of parolees, the state Supreme Court ruled on Thursday, while in the same case it reversed the defendant’s death sentence.

By a 5-1 vote, the court overturned the sentence of Michael Ray Burgener for the October, 1980, murder of a 7-Eleven store clerk in Riverside. The court found that the defense lawyer should have presented evidence on Burgener’s behalf during the penalty trial.

Burgener had ordered his attorney not to present evidence on his behalf and demanded in a statement to jurors that he be sentenced to death. The state Supreme Court has said in past cases that defense lawyers must tell jurors of any mitigating evidence, regardless of whether the defendant agrees to it.

“Defense counsel and his client threw in the towel at the penalty phase, inviting the jury to impose the death penalty,” Justice Joseph R. Grodin said in the majority opinion. “In addition, the jury was in effect told (by the judge) that it must impose the death penalty under the circumstances.”

The court has reversed 53 of 56 death penalty cases it has decided since capital punishment was reinstated in 1977.

Although Burgener must be returned for a new penalty trial, the court did uphold his murder conviction, even though the jury foreman told the judge that one of the 12 jurors was drunk and reeking of marijuana at one point during the trial.

The court said that while the trial judge should have questioned the juror about the allegation, the defense lawyer requested that such an inquiry not be made. Thus, the court concluded that there was no proof that the juror was intoxicated.

In a dissent, Chief Justice Rose Elizabeth Bird argued that the guilty verdict should be overturned, saying there was “ample evidence” that the juror was drunk. The jury foreman said four other jurors complained about the jury member appearing to be intoxicated.

Burgener has a long criminal history, including convictions for battery, robbery and attempted murder. He was on parole at the time he robbed the 7-Eleven of $54 and shot to death clerk William Arias.

He was arrested on the day of the murder. That same day, police obtained approval from Burgener’s parole agent to search his apartment, where they discovered a bag from the store containing two $5 bills.

The court upheld the legality of the search, even though police did not have a search warrant signed by a judge. The justices said “societal interest in parole supervision and the speedy return of parole violators to prison” is more important than a parolee’s claimed right against unreasonable searches.

Based on Suspicion

The justices did say such searches should be based on some suspicion of wrongdoing. However, such a suspicion falls short of the more stringent standard needed to obtain a search warrant: That there be “probable cause” that a crime had been committed.

The court noted that one condition of Burgener’s parole was that he submit to warrantless searches. The state Board of Prison Terms commonly imposes such conditions before it releases convicts.