Death-Penalty Conviction a ‘Miscarriage,’ Is Overturned

The state Supreme Court on Thursday reversed the death sentence and murder conviction of a defendant because the jury had been allowed to hear prior testimony of a prosecution witness the trial judge had called “one of the flakiest” he had ever encountered.

In a 4-3 decision, the justices said it was a “miscarriage of justice” for the jury to hear the testimony of a witness who had disappeared and “whose credibility was indisputably minimal.” The court held that Vincent Louis, convicted in the 1980 murder of a gas station attendant in Monrovia, must be retried or freed of the charges.

Louis was improperly denied his constitutional right to confront his accuser--a convicted felon, former mental patient and user of 10 different aliases, the court said.

‘Spelled the Difference’

The testimony, taken at a preliminary hearing and rendered at the trial without the opportunity for cross examination, “plainly spelled the difference between life and death” for the defendant, Justice Stanley Mosk wrote for the majority.

The case arose from the shotgun slaying of Thomas Walker, an attendant in the cashier’s booth of the service station that had been robbed two nights earlier.

Louis and three co-defendants were eventually charged with the murder in what authorities said had been an attempt to prevent Walker from testifying about the robbery. The co-defendants were tried separately and were freed of the murder charges, while Louis was convicted and sentenced to death.

Virtually the same evidence was presented to both juries--except that in the trial of the co-defendants, Gregory Tolbert, who was awaiting sentencing in another case, testified as a prosecution witness.

In return for that testimony, however, authorities agreed to Tolbert’s release on his own recognizance. At his request, he was escorted to a hot tub club in Encino and released. Tolbert vanished and later failed to appear to testify at Louis’ trial.

Identified as Triggerman

With Tolbert no longer available, testimony that he had given earlier at Louis’ preliminary hearing was read to the trial jury. Tolbert’s testimony identified Louis as the triggerman in the murder of Walker.

Mosk, in an opinion joined by Chief Justice Rose Elizabeth Bird and Justices Allen E. Broussard and Cruz Reynoso, concluded that Tolbert’s testimony should not have been admitted for use against Louis.

The court noted that Tolbert had been convicted of several felonies, had once been committed to a hospital for the criminally insane, had used 10 aliases over a “long and varied criminal career” and had repeatedly failed to make required court appearances.

Mosk observed that the prosecution had conceded that Tolbert was “flaky” and that the trial judge had called him “one of the flakiest, most unreliable witnesses” he had seen.

“Tolbert,” Mosk wrote, “was precisely the type of witness that a jury needs to scrutinize in person in order to intelligently evaluate his credibility and the truth or falsity of his testimony.”

The court found also that the prosecution had failed to take proper steps to ensure that Tolbert, after his release, would show up to testify against Louis. Authorities neglected to obtain and verify his intended whereabouts and also failed to place him under any kind of surveillance, Mosk said.

In dissent, Justice Edward A. Panelli, joined by Justice Malcolm M. Lucas, said there was ample support for the trial judge’s finding that the prosecution had made reasonable efforts to produce Tolbert and that the testimony from the preliminary hearing should be admitted.

After Tolbert disappeared, authorities searched throughout the state for him, distributing 600 photos of the witness in order to find him, Panelli noted.

Both Louis and his lawyer were present at the preliminary hearing and could have cross-examined Tolbert then, preserving Louis’ right to confrontation, the dissenters said.

Panelli also pointed to a final irony in the case. Tolbert, who said at one point he feared for his life if he testified, could still have refused to take the witness stand against Louis had he not fled; his refusal to testify would have made him “unavailable” as a witness, thereby permitting the use of his testimony from the preliminary hearing.

Justice Joseph R. Grodin dissented separately.

The decision represented the 59th time in 62 cases the court has overturned a death sentence since capital punishment was restored in California in 1978.

Los Angeles County Deputy Dist. Atty. Jerry Haney expressed disappointment with the ruling, saying “every effort” will be made to retry Louis. Witness Tolbert’s whereabouts remain unknown, Haney said.

Deputy Atty. Gen. Thomas L. Willhite said the decision will be reviewed to see whether the state will seek a rehearing from the justices.

Attorney ‘Delighted’

Ruth E. Fisher of Los Angeles, an attorney representing Louis, said she is “delighted” with the decision but will withhold further comment pending study of the court’s opinion.

In other action Thursday, the justices:

- In a 4-3 decision, held unconstitutional a state law that in some circumstances allows the use of written statements by witnesses rather than oral testimony at preliminary hearings.

The law permitted the use of some statements unless the accused made “reasonable efforts” to secure the attendance of the witness. The court majority concluded that such a provision must be struck down because it effectively forced the defendant to produce his own accusers or forfeit his right to cross-examination.

- In a 6-0 ruling clarifying the legal requirements for the use of interpreters in court, held that co-defendants who cannot speak English each are ordinarily entitled to their own interpreter.

But the court said absence of separate interpreters in some circumstances does not automatically warrant the reversal of a conviction. Such errors may be deemed harmless when it is found they did not substantially affect the case, the court said.