John Cherry was a friendly man, the sort who might have thought the two young Canadian hitchhikers who liked to drink beer, smoke a little pot and listen to loud music were no threat.
But any freeway revelry ended quickly. At the barrel of a gun, Cherry was ordered by one of the young men to turn off Highway 99, drive down a narrow road and stop at a cornfield five miles south of Merced.
There, with the smell of a herd of dairy cattle heavy in the air, the man with the gun ordered Cherry to lie down and fired a single .38-caliber bullet into his skull.
Nine summers later, those who would abolish capital punishment point to Jerry Bigelow, once convicted and sentenced to death for Cherry's murder, as a strong argument to end state-sanctioned executions. For in a retrial last year, a jury adjudged him not guilty.
As Bigelow tells it, he is every bit as much of a "victim" as the family of the man he was accused of murdering. He spent nine years in jail and on San Quentin's Death Row. He'd be there still if not for a defense team of lawyers, investigators and friends who came to believe in his innocence and convinced a jury of it in a new trial.
"I didn't beat the system," Bigelow, 29, said in an interview last week before he was deported to his native Canada. "I served nine years in prison. I didn't beat anything."
But John Cherry's family and friends say Bigelow forever will be a little man who grew big only when he took a .38-caliber pistol in his hand, then got away with murder.
The family that Cherry left behind gathered last week in the home of his sister, Glennis Morris, three miles outside Modesto. Through all the testimony and legal arguments, they say, the story of their son and brother was lost.
It's not that they dwell on John's death. In fact, they rarely talk about his murder. But he lives on in family stories. His father, Ben, recalls fishing trips. His mother, Jewell, recalls Mother's Day flowers. His brother and two sisters remember his excitement at being an uncle to their growing families.
Because the Bible talks about it, the death penalty cannot be wrong, say Ben and Jewell Cherry, who left their native Oklahoma and settled in the San Joaquin Valley in the 1940s to raise a family. But no matter how painful the loss of John Cherry was and how frustrating Bigelow's release is, this is not a family out for vengeance.
"If he walked through the door, I couldn't shoot him," Ben Cherry, 72, said, explaining that he does not hate the man he is convinced killed his son.
"If we had hatred in our hearts for Bigelow," sister Peggy added, "it would hurt us worse than it would hurt him. He doesn't care if we hate him or not. If we hate him, he wins again. He not only kills John and gets away with it, but then wrecks everyone in the family."
Still, the family finds it hard to understand why Bigelow, who admitted so often and so freely to killing their son and brother, was found not guilty in a second trial, then set free.
In the early and middle 1980s, after he was convicted in his first trial, Bigelow wrote letters to the state Supreme Court demanding that his appeal be dismissed and that his execution take place. To pressure the state, he told reporters from newspapers and a television station that he was guilty.
"I thought it was open and shut," said Keith Cherry, 33, the victim's brother. "I wasn't ready for that (acquittal). I thought it was just a formality."
In a courtroom, however, nothing can be certain. And because of all that uncertainty, the circumstances surrounding the murder of John Cherry remain a mystery.
Jerry Bigelow was the youngest of six children. As his lawyer Robert Bryan tells it, he was the runt, often accused of wrongdoing as a child and just as often beaten. He lived in foster homes off and on as a kid, dropped out of school after the eighth grade, got into trouble at age 15 for stealing a car.
In the next years, he got into more scrapes with the law, though there was nothing major. In the summer of 1980, at age 19, he ended up in a jail in Calgary for a burglary.
There he met Michael Ramadanovic, three years his senior. According to court documents, Bigelow and Ramadanovic, taking the opportunity of a strike by jailers, decided to walk away from the facility on July 18, 1980, for no particular reason other than Ramadanovic didn't like the food given him on his 22nd birthday.
The pair made their way south, committing burglaries along the way. By August, they were staying with two teen-age Canadian girls at the Waterway Motel off Interstate 5 in Sacramento.
Meanwhile, Cherry, 26, a sometime carpenter and not the sort to miss the birthday party of his best friend, said goodby to his girlfriend at their home in Chico around 6 p.m. on Aug. 24, 1980, and sped off for Modesto.
He took his golden Labrador, Jack, $100 in cash, and his roommate's 1973 Pontiac LeMans. He got a speeding ticket along the way, then stopped as he always did at a Shell station for gas and to let Jack run near Discovery Park in Sacramento.
Bigelow and Ramadanovic were at the same freeway stop. Exactly what happened cannot be known.
But as prosecutors pieced it together, the plan was simple: Bigelow and Ramadanovic would hitch a ride, then one of them would pull a gun and steal the car and whatever money the driver had. Friends say Cherry never stopped for hitchhikers and believe the Canadians pulled a gun on him and forced him to drive off.
Story Changed Often
Bigelow has changed his story often, though he always has said that Cherry picked them up hitchhiking. In a statement to Merced County authorities after his arrest, Bigelow said Cherry offered to take them as far as Modesto. He had described Cherry as a nice guy, and they shared beer and pot as they went.
When they reached Modesto, however, Ramadanovic pulled a gun and told Cherry to drive them on, Bigelow had claimed.
Five miles south of Merced, they pulled off Highway 99 onto a narrow road. They crossed railroad tracks, drove past an almond orchard and farm houses and stopped along an irrigation canal. In his various statements, Bigelow recalled such detail as the men laughing when the dog urinated on a car tire.
He also had said in early statements that he and Ramadanovic led Cherry into the cornfield. There, Cherry was ordered to lie down. Bigelow had stated he returned to the car to get boot laces with which to bind Cherry's hands. When he was at the car, he heard the single shot that crashed into Cherry's skull.
That story changed after he was convicted in 1981. He started claiming he was the gunman. It changed again in his retrial. Bigelow's attorneys then maintained he had passed out from beer and marijuana in the back seat of Cherry's car when the murder took place.
Ramadanovic admitted his role in the murder in 1981, and was sentenced to life in prison without parole. There was, of course, a key difference in his story. He named Bigelow as the triggerman, although he refused to testify in Bigelow's retrial last year, invoking his constitutional right against self-incrimination.
Arrested Within Week
Bigelow was arrested within a week of the murder, after committing a robbery, using a buck knife, in Seligman, Ariz. He and his girlfriend were in the stolen Pontiac. They made statements about the body in a cornfield somewhere off Highway 99.
On Aug. 31, 1980, Ramadanovic was arrested in New Mexico speeding along Interstate 40 in a stolen truck. He had Cherry's dog and the apparent murder weapon, the .38-caliber pistol.
Ramadanovic quickly escaped from custody, and was arrested again, outside of Daytona Beach, Fla. By that time, he had an arsenal of five pistols, a sawed-off shotgun and 22 sticks of dynamite.
Based on statements from the women Ramadanovic and Bigelow were traveling with, police from Sacramento to Merced had begun searching cornfields for Cherry.
With the corn 10 feet high, it was a futile search. Detective John Harris of the Merced County Sheriff's Department passed within 30 feet of the body and did not see it. It wasn't until Oct. 9 that a farm hand, while harvesting, noticed the remains.
Bigelow started talking to investigators soon after he was arrested. At one point, Bigelow told Harris, the lead investigator from Merced, that he was asleep in the back of the car when the murder took place.
But from there the story evolved.
"If you know juveniles, they'll keep trying until they're believed," Bigelow said in the telephone interview last week. "That was my mentality at the time. I wanted to be believed. There's no logic to it. At the time, I wasn't thinking straight."
'There Was No Plan'
As he told it last week, "there was no plan" to steal a car, let alone to kill Cherry. They simply planned to head to Long Beach and Cherry offered a ride south to Modesto. Because he was asleep in the back seat, he said, he does not know what happened in the cornfield.
Back in Merced in 1980, Bigelow faced a murder charge. His former partner in crime had fingered him. The women also implicated him as the man who pulled the trigger. Although he faced the potential of the death penalty, Bigelow refused court-appointed lawyers, explaining they all wanted him to accept a sentence of life in prison. He set out to represent himself. It took the jury less than a day in 1981 to return a guilty verdict and then he was sentenced to death.
On Death Row, Bigelow dropped his claim of innocence and started making admissions. It all was calculated to inflame the public, he said, because he wanted to force the state into letting him drop his appeal and so he could be put to death.
"After a year of being threatened, I got tired of it. I got tired of having a gun to my head," he explained.
To underscore the point, he tried in 1982 and 1984 to kill himself with overdoses of prison-supplied pills, mixed with prisoner-made wine. When he woke up in the San Quentin infirmary in 1982, he broke a window and slashed his throat.
"I was admitting defeat. . . . I've lost, goodby.' . . . It was just a hopeless feeling, a desire to get out," he said.
New Trial Ordered
He did not get his wish of death. In 1984, the state Supreme Court, under Chief Justice Rose Bird, reversed Bigelow's conviction and ordered a new trial, calling the first trial a "farce." The court unanimously found that the Merced County superior court judge should not have let Bigelow, a man of average intelligence and no talent in a courtroom, represent himself. Not even the Attorney General's Office, which argued for the prosecution before the high court, disputed the key point in the appeal: that the judge erred by refusing to appoint an attorney to advise him on points of the law.
For a time, Bigelow persisted in his stated desire to have his sentence carried out. His attitude changed, however, when lawyers Robert Bryan and Gayle Gutenkunst stepped in with their investigators, jury consultant and psychologists.
"This is one case where the ability of a skillful attorney made all the difference in the world," said Superior Court Judge Harkjoon Paik of Monterey County, who presided over the retrial, which was transferred to Monterey on a change of venue.
"From day one," the judge added, "I told both sides that this was not a death penalty case. I told the DA that he was making a serious mistake by going for the death penalty. . . . When an attorney tries to overreach, sometimes it backfires."
Many of the roughly 260 men now condemned to death in California stand convicted of heinous crimes of multiple murder, killings of children or elderly people. Many others on Death Row have long records of violence. Given Bigelow's youth at the time of the murder and the fact that he had never been convicted of a major crime, Paik believes, few juries would have returned with a recommendation of death.
Cherry's family believes that Deputy Dist. Atty. Gordon Spencer of Merced simply was outgunned by Bryan, an experienced courtroom attorney who handles murder defense trials throughout the country and specializes in cases in which the death penalty is possible.
Time Helped Defense
The passage of time helped the defense. Memories fade after nine years. One important prosecution witness was one of the women with whom Bigelow stayed in the Sacramento motel. She testified that when the two young men returned with Cherry's car, Ramadanovic, with whom she had paired off, was upset.
She quoted Bigelow as telling Ramadanovic: "I don't know why you're so upset. I'm the one that shot him."
Bryan attacked her by homing in on her lack of recall, focusing on her drug use.
Spencer did seem to get some mileage from a defense psychologist. In notes of an interview with Bigelow in October, 1985, the psychologist quoted Bigelow as saying:
"Went to the cornfield.
"Shot him and ran like hell.
"Mind just blank."
The psychologist concluded, however, that Ramadanovic was more violent and domineering than Bigelow and was the more likely triggerman. Bigelow simply made up the story as a way of puffing up his own importance. The defense theory was that Bigelow confessed to the killing, just as he would admit wrongs as a child to avoid beatings from his father, who died in 1984.
To buttress the sad story of Bigelow's childhood, one of Bigelow's sisters testified that her brother's beatings were so intense that the family fled the house to get away from his screams.
Cherry's family agrees that child abuse is awful. "But what does that have to do with the crime?" Keith Cherry asked.
What hurt them was that while the defense made Bigelow out to be a victim, John Cherry was made out to be a criminal. Bryan produced evidence that Cherry was a drug courier and implied the murder resulted from a failed drug deal with Ramadanovic.
Friends and family members acknowledge that Cherry liked a good party. But they scoff at the notion that he was involved in any large-scale drug enterprise.
"He wasn't that ambitious," a friend said. Cherry made ends meet by doing an odd carpentry job, his girlfriend testified. He never made much, and didn't file tax returns; they lived cheaply.
The Monterey County jury acquitted Bigelow in May, 1988. But because of inconsistencies on the verdict form, Paik refused to accept the decision and declared a mistrial in an effort to have the case retried.
Bryan appealed. A Court of Appeal ordered Paik to accept the not-guilty verdict. The state Supreme Court last month refused to review the ruling, opening the way for Bigelow's release.
Death penalty abolitionists note that but for some luck, Bigelow might have been executed. Although the state has not executed anyone since 1967, the more conservative state Supreme Court of Chief Justice Malcolm M. Lucas affirms more than twice as many death sentences as it reverses. Given that record, Bryan wonders whether the Lucas court would have reached the same conclusion as the Bird court did when it reversed Bigelow's conviction.
"It is a very powerful statement against capital punishment," Bryan said of Bigelow's acquittal.
Michael Laurence, director of the ACLU of Northern California's death penalty project, said: "Because we live in an imperfect world, innocent people are going to get caught up. Unless we are willing to execute innocent people, the only recourse we have is to abolish the death penalty."
In nine years since John Cherry died, there have been other deaths in the family he left behind. But there also have been births. Peggy adopted a girl, whose first birthday is coming soon. The elder Cherry recovered from a serious illness last year.
"What can you do but put it out of your mind as much as you can? If I went out and killed him, if I hated him enough to kill him, I wouldn't be any better than he is," Ben Cherry said.
Still, the family can't help but think of the murder whenever they see a hitchhiker or pass one of the San Joaquin Valley cornfields. And they worry that Bigelow will commit more crime.
"You want to ignore it and never hear about it again," said Glennis, 37, the eldest of the children. "But another part of you says, 'If I don't say something about this and if I don't speak out against this little creep, who is going to?' . . . I want him to know that he hasn't fooled the entire system. We know who really killed John."
Bigelow replies: "I'm a victim in this; she's a victim in this. There has to come a point where it's over. She has to go on and live her life. I feel real sorry for her. . . . Twelve jurors found me innocent. That's the standard people go by in America."
Bigelow faces some legal problems upon his return to Canada. He had served only a month of an 18-month term for a burglary when he escaped. He hopes that authorities will free him, given that he did nine years on California's Death Row and in jail. He also vows to live within the law, saying: "I lost my capacity to be a prisoner."
He said he hopes to disappear in a small town in Canada, perhaps go back to school.
But he also thinks his story should be told "properly," perhaps in a book and movie, saying: "I'd be foolish if I didn't take some advantage of the marketability of this story."