Death Penalty OKd by Bird Court Found Improper by Referee

SAN FRANCISCO —  A court-appointed referee has found that the death penalty was improperly returned against Earl Lloyd Jackson--one of only four convicted killers whose capital sentences were upheld by the state Supreme Court under Chief Justice Rose Elizabeth Bird.

Jackson’s death sentence for the murder of two elderly Long Beach women in 1977 could be overturned if the referee’s finding is upheld by the high court. While not binding, such findings are usually accepted by the justices.

Ironically, it was in Jackson’s case where the newly aligned court under Chief Justice Malcolm M. Lucas last October ordered an abrupt end to a far-reaching inquiry by the Bird court into whether death sentences in California were being improperly based on race.

Investigation Allowed

The new court, however, did permit a more limited investigation to continue into the capital charges and death sentence in Jackson’s case itself.

In a 26-page report to the court last week, retired appellate Justice Bernard S. Jefferson of Los Angeles concluded that Jackson’s trial counsel improperly failed to investigate two jail house informants who testified for the prosecution and failed to present evidence of the defendant’s hardships as a youth in a plea for mercy.

Among other things, Jefferson said, a sufficient inquiry by the lawyer could have revealed that one of the informant-witnesses was a former member of the white supremacist Aryan Brotherhood who helped provide “the guts” of the case against the black defendant.

Nor did the attorney, Theodore P. Veganes of Los Angeles, properly seek evidence that the witnesses--who had been promised help by authorities in their own pending criminal cases in return for testimony against Jackson--had reason to testify falsely, the referee said.

If evidence of potential bias and motive to lie had been presented to the jury, Jefferson said, “the jury, in all likelihood, would have considered the testimony of (the two informants) as being untrue, with the remaining evidence of the prosecution insufficient to sustain (capital charges).”

Jefferson concluded that were it not for the trial lawyer’s actions, it was “reasonably probable” that Jackson would not have received the death penalty or even the alternative, life in prison without parole.

Joseph Shemaria of Beverly Hills, the lawyer representing Jackson in the habeas corpus proceeding now before the court, said Tuesday that Jackson’s trial defense was “the grossest case of ineffective assistance of counsel I’ve ever seen.”

“Whether you’re for or against the death penalty, it’s frightening to know that jurors were allowed to decide a life-or-death issue without knowing that the star witness against a black defendant was a former member of a white supremacist group,” Shemaria said.

State Deputy Atty. Gen. Susan Lee Frierson said prosecutors would file briefs with the court opposing Jefferson’s findings and urging the justices to uphold Jackson’s sentence. “This case has been in the system a very long time and we’re looking forward to a successful resolution,” Frierson said.

Veganes, through a spokesman, said he did not want to comment on the referee’s finding.

Jackson, now 30, was convicted and sentenced to death for the murders of Gladys Ott, 90, and Vernita Curtis, 81, during separate burglaries he and accomplices committed in 1977.

In October, 1980, the high court in a 4-3 ruling upheld Jackson’s conviction and sentence in one of only four such affirmances rendered in 68 capital rulings before Bird and two other justices were defeated in the fall, 1986, election.

In dissent, Bird assailed the majority for “sending to his death an impoverished, illiterate and possibly retarded black youth by affirming a judgment that this court would not hesitate to reverse if any other offense were involved.”

In 1983, the court, reviewing Jackson’s subsequent habeas corpus action, appointed Jefferson to hear testimony and render a report on whether Jackson was fairly charged with a capital crime and sentenced to death.

In his report, Jefferson noted that the prosecution had depended heavily on testimony from Ronald McFarland and Mark Mikles, two prisoners held along with Jackson at the Los Angeles County Jail before his trial.

The two inmates testified that Jackson admitted killing the two women, boasting that he had sexually attacked Ott with a wine bottle.

Attorney Veganes had been told about the prospective testimony of the two informers before the trial but he neither interviewed them nor employed an investigator to acquire information about their backgrounds, the report said.

The attorney testified before Jefferson that he purposely did not investigate the witnesses for tactical reasons. He said that he had hoped to bar their testimony on the grounds that he had been misled because their names were not on the official witness list.

But Jefferson found that such a tactic was unreasonable under the circumstances and that the witnesses’ testimony was crucial to the capital charge against Jackson. The informants’ testimony established that it was he who personally killed the victims and not an accomplice, the referee noted.

Childhood Abuse Cited

A reasonable investigation would have revealed Mikles’ past membership in the white supremacist group, casting doubt on his statements about admissions of guilt by a black defendant, Jefferson said.

The referee also reported that he had received testimony from several of Jackson’s relatives saying that Jackson had been subjected to “physical and psychological” abuse as a youth by his mother and stepfather. Had such testimony been presented at trial, it might have persuaded jurors to bring in a lesser verdict, Jefferson said.

Veganes had declined to present such testimony in the mistaken belief that it would open the way for the prosecution to rebut it with unfavorable evidence about the violence in the defendant’s past, Jefferson said.