Hearing Ordered for Killer Who Seeks New Trial

A divided federal appeals court ordered a new hearing Tuesday for a condemned murderer to determine whether he suffered brain damage from exposure to pesticides.

If Fernando E. Caro had brain damage from his “extraordinary, acute and chronic exposure” to pesticides, and from childhood head injuries, he is entitled to a new penalty trial because his trial lawyer failed to investigate his condition adequately, a three-judge panel of the U.S. 9th Circuit Court of Appeals said.

“The jury here was never presented with the most important evidence of mitigation--the chemical poisoning of Caro’s brain,” said Judge Warren Ferguson. He was joined in the 2-1 ruling by Judge Harry Pregerson.

Dissenting Judge Andrew Kleinfeld said Caro’s trial lawyer properly consulted experts, who found no sign of brain damage.

“Plenty of people who grew up on farms, constantly exposed to pesticides, feel fine, and do not kill anyone,” he wrote.

Caro, of Fresno, was convicted of fatally shooting 15-year-old cousins Mary Booher and Mark Hatcher, who were riding their bicycles in a rural area of the county in August 1980.

Caro, the oldest of eight children born to poor farm workers, was severely beaten as a child, the court said. His family’s water supply was contaminated with pesticides and he worked and played in fields covered with pesticides, the judges added.