(CN) – A 9th Circuit judge rebuked her colleagues Thursday for refusing to let a man on death row bring a second habeas petition after uncovering “shocking” evidence of judicial and prosecutorial corruption.
Gerald Ross Pizzuto Jr. was sentenced to death in May 1986 for the double homicide and robbery of Berta Louise Herndon and her adult nephew, Delbert Dean Herndon.
The pair had been murdered one year earlier while camping in the Ruby Meadows campsite near McCall, Idaho.
Pizzuto was also camping there at the same time with several friends from California.
At trial, Pizzuto’s ex-wife, Pamela Relken, gave damaging testimony about Pizzuto’s “very violent, punishing” tendencies. In addition to the abuse and threats she allegedly suffered, Relken said Pizzuto drowned her cats and their puppy. Pizzuto allegedly hung the puppy’s corpse from the shower stall and pushed Relken down the stairs when she was in her second trimester of pregnancy.
But the prosecution’s star witness was James Rice, who had been camping with Pizzuto that fateful day in 1985 and reported the murders to the police.
Rice said he discovered the grisly scene after Pizzuto had allegedly bashed the victims’ heads in with a hammer. He admitted to shooting Delbert Herndon in the head because he “didn’t want him to suffer.”
But although Rice told the court that his plea carried the possibility of a life sentence, Pizzuto learned recently, after having exhausted the state appeals process, that his friend made a sweeter deal.
Pizzuto asked the 9th Circuit in March 2011 to grant him a successive habeas corpus petition, with the court having rejected his earlier attempt in 2002.
In addition to claims that Rice perjured himself and obtained an ex-parte plea deal with the trial judge, George Reinhardt, Pizzuto showed that Reinhardt made public statements of his intent to impose the death penalty before the sentencing hearing.
As to prosecutorial misconduct, Pizzuto claimed that the state manipulated the evidence to corroborate Rice’s testimony. Pizzuto’s sister Angelinna also signed an affidavit that prosecutors provided her with alcohol and drugs, and told her how to testify.
The federal appeals court rejected Pizzuto’s bid Thursday, finding that a jury would likely rule the same way even if his claims of corruption held up.
“If true, these allegations raise troubling issues about Pizzuto’s trial,” Judge Ronald Gould wrote for the majority.
“The question is not whether this jury, knowing of this prosecutorial and judicial misconduct would have acquitted Pizzuto, but whether, ‘in light of the evidence as a whole … no reasonable factfinder would have found [Pizzuto] guilty,'” he added.
“Though the testimony of Rice and Angelinna was part of the government’s case, the prosecution did not rest solely on this testimony,” the 14-page decision states. “William and Lene Odom’s and Roger Bacon’s testimony, forensic evidence, and the fact that Delbert Herndon’s belongings were found with Pizzuto are sufficient to support a finding of guilt.”
Judge Betty Fletcher concluded otherwise in a stinging five-page dissent.
“Pizzuto’s claims, if proved, will establish such pervasive misconduct that no reasonable factfinder would have found Pizzuto guilty of the underlying offense,” she wrote. “He should be afforded the opportunity to present these claims in an application for a writ of habeas corpus.”
“I am shocked by the conduct in this case,” Fletcher added. “Nothing can be more disturbing to a judge than a conviction and death sentence obtained by a corrupt prosecutor colluding with a corrupt judge. The state asks us to deny Pizzuto an opportunity to challenge just such a conviction and sentence. The majority is willing to do just that. But no fair legal system – and certainly not our American legal system – should allow a conviction and death sentence based in part on perjured testimony procured by the collusion of the judge, the prosecutor, and counsel for Pizzuto’s co-defendant.”
In September 2005, Pizzuto says he learned that prosecutors had promised Rice a sentence of about 14 years in exchange for his testimony.
“Seeking further corroboration of these statements, Pizzuto’s lawyers obtained the files and billing records of Rice’s counsel,” Fletcher wrote. “Those files revealed something even more troubling than Rice’s false trial testimony about what he received in exchange for his guilty plea: the fact that Judge George Reinhardt participated in negotiating Rice’s testimony and plea deal. Judge Reinhardt was the judge who presided over Rice’s guilty plea, Pizzuto’s trial, and Pizzuto’s sentencing.”
“Throughout the plea colloquy, Judge Reinhardt never disclosed his involvement in the negotiations,” the dissent states.
Rice’s lawyers apparently assured their client that they had a close relationship with the prosecutors and with Reinhardt. “Rice claims that at the same time his lawyers made these assurances, they instructed him to say ‘no’ at the plea colloquy when asked if he had been promised a certain sentence and to say ‘yes’ when asked if he understood that he could receive a life sentence,” Fletcher wrote.
She says the jury would not have convicted if it knew these allegations.
“Despite the existence of other evidence against Pizzuto, knowledge of the misconduct by the prosecutor and the judge would have undermined any reasonable jury’s faith in the entirety of the prosecution’s case,” Fletcher wrote.
The dissent concludes on a somber note.
“It is unfortunate that the shocking facts of this case were not uncovered sooner,” Fletcher wrote. “But fortunate, indeed, that they were eventually uncovered, even though they come to us in the form of a request to bring a second or successive habeas petition. We should rejoice in a system that allows a second habeas challenge when diligent counsel is able to uncover the facts and present them to us before a man is put to death. When faced with the corruption of our legal system, we must start over. The first step is to allow Pizzuto to file a second petition for habeas corpus in the district court. Nothing more nor less is required of us. I dissent from the majority’s refusal to take that first step.”