State High Court Voids Murder Conviction : Prosecutors’ ‘Serious Misconduct’ Earns Insurance Official New Trial

SAN FRANCISCO â€”  Citing “serious misconductâ€� by prosecuting authorities, the state Supreme Court on Monday overturned the second-degree murder conviction of a San Diego insurance executive accused of arranging the fatal beating of an attorney in 1981.

The justices, in a unanimous 93-page opinion, ordered a new trial for Herman G. Martin, a 66-year-old former federal informer found guilty in the death of Richard Crake, a La Jolla lawyer he was opposing in a bitter lawsuit over $100,000 Martin claimed he was owed.

The court, upholding the findings of a retired appellate justice specially appointed to investigate the case, concluded that officials had improperly intimidated three defense witnesses by immediately and publicly arresting the first witness who testified for the defendant.

The justices found also that the three witnesses--two of whom were felons--were further discouraged by warnings that they too would be prosecuted if they gave testimony that was self-incriminating.

Did Not Dismiss Charges

But the court, in an opinion by Justice Stanley Mosk, refused to order the charges against Martin dismissed.

“(Martin) fails to establish that the prosecutorial misconduct that occurred here, although undeniably serious, was sufficiently outrageous or gross to justify the (dismissal) he seeks,� Mosk said.

Prosecutors expressed dismay with the action but pledged to retry Martin, despite the inherent difficulties of getting witnesses in a 6-year-old case back in court.

San Diego County Dist. Atty. Edwin Miller said he was “thoroughly frustrated� by the decision but refused to blame the new, more conservative court. The justices, he said, as a practical matter, had little choice but to accept the special findings of retired Appellate Justice Gerald A. Brown in August, 1986.

“My indignation is not with the court but with the process which saw a referee appointed by the (former Chief Justice) Rose Bird Supreme Court (who) simply accepted as fact every point made by the defendant,� Miller said.

Brown’s report, upholding defense claims of prosecutorial misconduct, was “just bunk,� Miller said.

State Deputy Atty. Gen. Louis Hanoian said he was “saddened by the result� in the case but staunchly defended the trial prosecutor, James Pippin.

“I’ve never seen a better-tried case,� Hanoian said. “His conduct was exemplary, and he did a great job.�

Gratified by the Decision

Charles M. Sevilla of San Diego, Martin’s attorney, said he thought the misconduct had been serious enough to warrant dismissal but said, nonetheless, he was gratified the conviction had been set aside.

Martin, who has been free on $250,000 bail pending the outcome of the appeal, was “pleased--but also a little disappointed that this thing apparently will continue,� Sevilla said.

“This has been a nightmare for him,� the attorney said.

Martin had been protected by federal authorities and given a new identity for his testimony against racketeers in the New York City garment industry in the mid-1970s.

In 1981, San Diego authorities charged Martin with forcing Andrew Powell, an employee in his insurance company, to beat up Crake to collect the money he said the attorney owed him. Powell went to Crake’s home and during an altercation bludgeoned the lawyer to death with a gun.

Wrongdoing Denied

Powell pleaded guilty and testified against Martin, saying that Martin had given him the gun he used in the crime. Martin denied wrongdoing and, at the trial, called a witness, Stephen Aguilar, who testified Aguilar provided Powell the gun.

Immediately after he left the stand and passed through the courtroom doors, Aguilar was arrested as an accessory to murder by prosecution investigator Lawrence K. Wilson. News reporters and a group of prospective defense witnesses saw the arrest. But the charge was later dropped.

Three other witnesses that the defense said would contest Powell’s story all refused to testify.