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Thursday, June 20, 2024 | Back issues
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Trashed Tape Not Enough to Block Death Sentence

SAN FRANCISCO (CN) - An investigator who threw out an audiotape he found containing defense strategy for a man ultimately sent to death row didn't fudge the case, the Ninth Circuit ruled on Monday.

The decision all but guarantees the execution of Conrad Zapien, who was sentenced to death in 1987 for murdering a woman during a burglary by shooting and stabbing her four and five times, respectively. Addicted to heroin at the time, Zapien heard from his sister that the woman, the mistress of his sister's husband, had money and jewels in her home.

Zapien argued his due process rights were violated by an investigator for the prosecution, who found an envelope with Zapien's lawyer's name that contained an audiotape discussing strengths and weaknesses in Zapien's argument and threw it in the garbage. The trial court found that the investigator threw it out after the prosecutor told him to listen to it.

The California Supreme Court rejected Zapien's argument in 1998. In affirming that decision, Ninth Circuit Judge Alex Kozinski called Zapien's appeal "a tortuous chain of reasoning."

The tape was only "attorney-client work product," and its destruction did not give rise to a due process violation as if it were exculpatory evidence, Kozinski wrote for the three-judge panel.

Kozinski and the panel affirmed the rest of the state Supreme Court's denial of Zapien's claims, including his argument that a third-hand account by a friend of his sister's child that Zapien came home with blood on his clothes was hearsay, and that a juror was tainted after reading a news report that Zapien said he would harm prison guards if convicted.

California has not executed a death row inmate since 2006, and its capital-punishment system was ruled unconstitutionally cruel and unusual by a federal judge in 2014 because it is arbitrary, plagued by delay and amounts to "life in prison with the remote possibility of death."

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