Retrial in ’62 Murder Case to Test Long-Held Memories

Mike Fochetti was driving past an alfalfa field when he spotted in the distance a 1952 Plymouth, its chrome catching the light of a full moon.

Twenty-four years later, he still remembers his chance encounter with the Plymouth. He remembers the alfalfa stalks, only a half-foot high, flanking the car; he remembers flicking on his brights and admiring the two-tone paint job; he remembers exactly when he spotted the Plymouth, because he was a high school junior trying to beat a 9 p.m. curfew set by his father.

Fochetti’s testimony 24 years ago in this small San Joaquin Valley town helped convict a man of murder. Prosecutors, now faced with trying the same man again, for the same crime, are hoping that witnesses like Fochetti can convince a jury that they still remember the events of a cool spring night long ago.

“I’ll never forget what I saw,” said Fochetti, now 41, and the father of three. “What happened is just too important.”

The car Fochetti spotted helped prosecutors to place a dairy worker named Booker Hillery near the home of 15-year-old Marlene Miller, who was fatally stabbed through the throat with a pair of scissors. Hillery, who was on parole for a rape at the time, was convicted of murder.

But 10 months ago the U.S. Supreme Court ruled that Hillery, a black farmhand, had been unconstitutionally discriminated against because blacks were purposely excluded from the Kings County Grand Jury that indicted him. The court ordered that Hillery be freed or given a new trial.

On Monday in Monterey County Superior Court, 24 years after the murder of Marlene Miller, Hillery will be tried again.

For both the defense and prosecuting attorneys, trying a case so many years after the original crime is a monumental and, they say, unprecedented task. They have pored over 6,000 pages of transcripts from the trial and two additional penalty phase trials, held as a result of appeals. About 115 people who were originally involved in the case--witnesses, law enforcement officers, family members, criminalists--had to be tracked down throughout the country. Twenty-one had died; others were senile.

Attorneys have had to re-create their own model of the murder site because where the house once stood there is now an equipment shed. And the lane where Hillery’s car was parked is now farmland.

So much has changed since the murder that the Hanford courtroom where Hillery was tried has been renovated and turned into a restaurant featuring “California cuisine,” and the granite jail cell where Hillery was held is now a booth at a hamburger shop called “La Bastille.”

But amid all the changes one element of the case has remained constant: the evidence. The standard procedure in many counties is to dispose of evidence after a case is resolved. But the King’s County Sheriff’s Department held onto more than 100 pieces of evidence from the Hillery case, including impressions of tire tracks and shoe prints, photographs of the crime scene, fiber samples and Hillery’s gloves.

Hillery was known as a “jail house lawyer” who frequently filed suits, so the former sheriff was specially cautious, said Kings County Dist. Atty. Robert Maline, who was a junior at Burbank High School at the time of the first trial. And because there was only about one homicide a year in Kings County when Hillery was convicted, the Sheriff’s Department was able to store all the evidence.

But in 1977, after a new government center was built, the county decided it no longer had room for Hillery’s Plymouth. The county wanted to sell the car, but first had to obtain Hillery’s approval. A release form was sent to Hillery at San Quentin Prison but he refused to sign it, Maline said.

And now, as a result of sophisticated scientific techniques not available in 1962, the prosecution has obtained new evidence from the car that it will use against Hillery, Maline said. In the first trial, circumstantial evidence placed him near the house of Marlene Miller, who had been the victim of an attempted rape before she was killed. But now, Maline said, the prosecution can show “scientifically” that he was in the house.

“Thank you, Mr. Hillery,” said Maline, who declined to divulge the new findings before the trial. “He basically allowed us to come up with new evidence.”

After it was determined that another trial would be held, “boxes and boxes and bags full of evidence” were sent to the state Department of Justice criminology lab in Fresno, said criminalist Rod Andrus. At the time of the murder, there was only one way to type blood; now there are at least 15 different typing methods, Andrus said. And researchers now can provide much more information about hair, clothing, fiber and paint samples found at crime scenes.

“What we can do now is leaps and bounds above what we were doing in the ‘60s,” said Andrus. “So this case is particularly interesting for us. . . . I’ve never worked on a 24-year-old case, much less heard of one.”

Clifford Tedmon, Hillery’s attorney, said he would challenge evidence arising from new findings. Any conclusions drawn by evidence that old, handled by so many people over the years, is questionable, he said.

At the time of the murder, the Hillery case was the most shocking event ever to hit Hanford, said Paul Merz, managing editor of the Hanford Sentinel. Hanford, a farming community, had a population of only 10,000 in the early 1960s, and the Millers were a prominent family. Marlene Miller’s murder represented a “loss of innocence for Hanford,” Merz said.

Today, the crime still “triggers incredible passion for people here,” he said. As a result, a change of venue was granted, and the new trial will be held in Monterey. But even in another city, Tedmon said, it will be difficult to find impartial jurors.

“You have a beautiful young girl with a scissors stuck in her throat,” Tedmon said. “And you have a guy who’s already been convicted by another jury and who’s been in jail all this time. You can see that it’s going to be hard to find people who’ll look at this with an open mind.”

The case presents unique difficulties for both prosecuting and defense attorneys. Because Hanford is so different today, Tedmon said, he will have difficulty recreating for the jury Hillery’s movements on the day of the murder. And he cannot even visit the crime scene, he said, so it will be harder for him to definitively point out inconsistencies in the testimony of prosecution witnesses.

A trial that takes place so many years after the original crime only “causes the victims more suffering,” said Bernard Miller, the uncle of the slain girl. The family spent a lifetime trying to forget a tragedy, he said, and now they are forced to remember.

“My brother and his wife were terribly traumatized,” he said. “They’ve tried to live with it and get on with their lives. But how can they when the courts keep tossing it back at them? They’re going to have to go back in that courtroom and relive that thing all over again.”

The task of prosecuting Hillery a second time, Maline said, will cost Kings County $500,000. Maline will try the case himself, along with Santa Rosa attorney Ronald Fahey, a special prosecutor hired by the county.

Since the first trial so much has changed, including the law, that Maline probably will not be able to use as evidence Hillery’s statements to investigators after he was arrested.

In a recent preliminary hearing the judge refused to allow the statements because Hillery wasn’t read his rights when he was arrested. At the time it was not required, but four years later the Supreme Court ruled that suspects in criminal cases have to be advised of their constitutional right to have an attorney present during questioning by authorities.

And although many of those who originally testified have been tracked down and will testify again, a number of major witnesses have died, including the chief investigating officer from the Sheriff’s Department, the criminalist, and a key witness who contradicted Hillery’s alibi.

“For those witnesses who have died, we’ll just have to read their testimony from the transcripts,” Maline said.

The witnesses who will testify again must recall events from almost a lifetime ago and be prepared for hostile cross-examination. Even Hillery’s memory has become muddled over the years. Hillery, who refused to comment on the case, still claims he is innocent, Tedmon said.

“For him it’s not just 24 years, it’s 24 years in custody,” Tedmon said. “He’s brooded about it all these years . . . and he confuses things. We know his memory is faulty and that causes us some concern.”

But Capt. O. R. MacFarlane of the Kings County Sheriff’s Department said he never has had any difficulty remembering the events of the night. Not during the first trial. Not during the penalty phase trials. And not now as he is preparing to testify again.

MacFarlane was a young deputy at the time and the Miller case was his first homicide. He had just been transferred from a small substation in Avenal to Hanford.

“We didn’t have homicides in Avenal,” MacFarlane said. “Hell, we didn’t even have felonies.”

The area was such a “cow county” at the time that sheriff’s deputies did not patrol all night, he said. Officers were on call every third week, and MacFarlane was on call the night Marlene Miller was killed.

The victim was sewing a dress she had planned to wear on her 16th birthday when her parents left for night school. When they returned home, they found the window jimmied open, signs of a struggle and blood. The light from Marlene’s sewing machine was still on, but she was missing.

MacFarlane and a group of other deputies spent that night collecting evidence and searching for the girl. Then, the next morning, as dawn broke, a reporter for the Fresno Bee spotted her body floating in an irrigation canal behind the house. MacFarlane saw the body after it was pulled out of the water. Her sewing scissors, inscribed “Marlene M,” were embedded up to the handles just above her chest.

“You don’t forget a night like that,” he said. “It might be difficult to remember the sequence of some things that night, or how many times you got in and out of your car. But the important things you don’t forget.”

Hillery was arrested the day authorities found the body. His Plymouth had been spotted near the Miller’s house by Mike Fochetti, and tire marks, a boot print and a bloody glove found near the scene were traced to Hillery. He was convicted, based on the circumstantial evidence, and given the death penalty. But the sentence eventually was overturned and another jury imposed a life term.

The decision to retry Hillery is particularly galling, MacFarlane said, because he was involved in the original investigation, testified in the original trial and saw the case to completion. And even though the “investigation was thorough and professional,” and a jury determined Hillery was guilty, he now may go free.

MacFarlane, 52, said he is so disillusioned with the criminal justice system, largely as a result of the Hillery case, that he is taking early retirement next year.