A state Court of Appeal, ruling in a widely watched “gay-bashing” case, on Friday overturned the second-degree murder convictions of three men accused of fatally attacking a San Francisco man because they believed that he was a homosexual.
In a 2-1 decision, the panel reduced the convictions to involuntary manslaughter, ruling that the two bare-handed blows struck by the assailants in a 1984 sidewalk fracas were not sufficiently life-threatening to sustain a murder charge.
The victim, John D. O’Connell, 42, died from head injuries suffered in a fall to the pavement after he was struck, according to medical evidence in the case.
The panel, in an opinion by Appellate Justice William A. Newsom, conceded that the attack was unprovoked and seemingly motivated only by “mindless homophobia.”
“But the presence of such circumstances, however reprehensible they may be, cannot support an inference that the isolated act of striking a person with bare hands in itself imports a high degree of probability that death will ensue,” Newsom said. “Malice (a necessary element for murder) can be implied only when the beating is so brutal that death is a probable consequence.”
The ruling appeared to open the way for the release from prison of three Vallejo youths who were charged and convicted in a case that inspired widespread public outcry and demands for added protection for San Francisco’s large gay population.
The three assailants--Donny Clanton, now 23; Timothy White, 26, and David Rogers, 23; all of Vallejo--were sent to prison for terms of 15 years to life. An attorney for White, noting that the term for involuntary manslaughter is two to four years, said she expected all three to be released soon unless the ruling is overturned by the state Supreme Court.
‘Hysterical Jury Verdict’
“The appeal court said correctly that a slap and a punch do not make a murder,” said Maureen R. Kallins, a San Francisco lawyer. “This was a classic example of a hysterical jury verdict . . . and a classic example of being tried by the press.”
State Deputy Atty. Gen. Blair Hoffman said prosecutors will confer soon to decide whether to ask for a rehearing before the panel or seek review by the state Supreme Court.
According to authorities, the three young men and other youths had met in a Vallejo parking lot on July 29, 1984, and then decided to go to San Francisco. A witness said later that he heard Rogers urge the group to attack homosexuals.
At about 9 p.m., the group encountered O’Connell, a gay activist, and another man on Polk Street, a well-known congregating area for homosexuals, and an altercation ensued. Witnesses said O’Connell was struck twice in the face and fell back on the sidewalk. He was taken to the hospital, where a blood sample revealed he was highly intoxicated with blood alcohol level of 0.29%. O’Connell went into a coma and died two days later.
Newsom’s majority opinion was joined by Appellate Justice John T. Racanelli.
In dissent, Appellate Justice John W. Holmdahl agreed that a bare-fisted attack resulting in death was usually not considered murder--but said there were sufficient “aggravating circumstances” to elevate this crime from one of manslaughter.