A prisoner on California’s Death Row took a major step toward freedom Monday when a state appellate court reversed a trial judge’s decision disregarding a jury verdict acquitting the man.
A Court of Appeal in San Jose unanimously directed that the judge accept a jury’s verdict last May acquitting Jerry D. Bigelow of the 1980 murder of John Cherry in a cornfield outside of Merced.
“The absolute power of the jury to acquit, for reasons consistent or inconsistent, is beyond dispute in our criminal justice system,” the Court of Appeal said in an opinion by Justice Harry F. Brauer.
Robert R. Bryan, Bigelow’s attorney, predicted that the state attorney general would not appeal the ruling to the state Supreme Court, and that Bigelow would be freed soon. Bigelow will be deported to his native Canada if he is released, he said.
“I would be shocked if the state keeps fighting against what the jury said,” Bryan said. “I just can’t believe they would appeal it. The man was acquitted by a jury.”
Deputy Atty. Gen. Ronald Matthias said Monday he has not decided whether the decision will be appealed.
Bigelow has demanded that he be executed, sending a letter to the state Supreme Court in 1981 asking that his appeal be dismissed. However, state law does not allow Death Row inmates to drop their appeals before the high court decides the case.
Bigelow attempted suicide in 1982 with an overdose of drugs. When he woke up in the prison hospital, he attempted to slash himself with broken glass.
If he is freed, Bigelow would be only the second condemned prisoner to walk away from California’s Death Row and out of prison since the death penalty was reinstated in 1977.
The other prisoner, Chol Soo Lee, a subject of a current movie, “True Believer,” was freed in March, 1983, after he was acquitted in retrial of a 1973 murder.
Bigelow has been on Death Row since May 8, 1981. He received a reprieve in 1984 when the state Supreme Court, led then by Chief Justice Rose Elizabeth Bird, unanimously overturned his conviction and ordered a retrial.
Bigelow’s odyssey began in July, 1980, when he escaped from Spy Hill Prison in Calgary, Canada. Age 20 at the time, he made his way with another escapee to California, where the two committed a series of burglaries.
In August, 1980, Bigelow and his partner, Michael Ramandanovic, were hitchhiking south from Sacramento when the murder victim, Cherry, offered to drive them part way to Los Angeles .
Outside of Merced, the men ordered Cherry to pull off the road. There, in a cornfield, Cherry was shot and killed. Prosecutors believed Bigelow pulled the trigger. Bigelow said Ramandanovic fired the shot.
The judge in the first trial reluctantly granted Bigelow’s request that he be allowed to defend himself, but refused to provide him with a defense attorney to assist with the case.
As it turned out, Bigelow, who has a ninth-grade education, was “totally incompetent as a defense attorney and . . . this trial of a capital case could rightly be described as a ‘farce or a sham,’ ” the state Supreme Court said in its 1984 opinion that led to his retrial and ultimately his acquittal.
In Bigelow’s second trial, Bryan persuaded the jury that Bigelow did not pull the trigger. The jury, after deliberating for six days, issued a verdict that acquitted Bigelow of murder on May 9, 1988.
But on the verdict form, the jurors indicated that the murder had taken place during the kidnaping and robbery of Cherry.
Superior Court Judge Harkjoon Paik decided that the jury’s finding of these special circumstances was inconsistent with its verdict of acquittal, and he ordered that the jury resume its deliberations. The jury met for the next day and a half.
“During all that time, the jury was not told why its verdict was not acceptable,” Justice Brauer wrote. “This conduct by the trial court amounted to mandating reconsideration of a verdict of acquittal, and is forbidden by statute and precedent.”
As the jury deliberated anew, one of the jurors switched his vote to guilty. With the jury hung at 11-1 to acquit, Paik declared a mistrial. However, Brauer concluded that the judge had a duty to accept the verdict of not guilty when it was first submitted.
“The touchstone of a jury verdict of acquittal is the jury’s manifestation of a definite and final intent to acquit,” Brauer wrote. “Nor need a verdict be legally consistent. The jury’s prerogative to render a legally inconsistent verdict is unquestioned by authority.”