Murder Trial Tests Little-Used Doctrine

SAN FRANCISCO â€”  Two young men in Northern California are on trial for the murder of a friend they didn’t touch and whose life they tried to save.

The Solano County trial, which is likely to conclude this week, has raised questions about a little-used legal theory that says a defendant can be found guilty of murder for provoking someone else to kill. Defense attorneys contend that prosecutors are stretching the doctrine, which exists only in California and Maryland, to apply to situations it was never intended to embrace.

The murder case also has ethnic overtones. The teenager who actually stabbed the victim in the back is white. He pleaded guilty to a weapons charge but served only two days in juvenile hall before he was placed on probation. The defendants, who face 15 years to life in prison if convicted of second-degree murder, are Latino.

The legal theory behind the prosecution, known as the provocative act murder doctrine, has been used sparingly until recently--typically in shootout cases in which an intended victim fires in self-defense at a perpetrator and accidentally kills someone else.

But prosecutors have recently begun to apply the doctrine more widely, particularly in gang cases.

The doctrine will be reviewed by the California Supreme Court in a case from Orange County in which a man was convicted of murder for provoking a retaliation killing by a rival gang.

In the meantime, however, the Solano County case is attracting attention as a test of the doctrine’s reach. The case began on the night in 1997 that Jeremiah Alvarez English was killed. English and his two friends were driving through a Vacaville neighborhood when they ran into a larger group of young men who were on foot. The previous night, members of the two groups had brawled, and again on this night a fight ensued.

Chad O’Connell, then 16, said he stabbed English in an attempt to protect one of his own friends. English’s friends, who are now on trial, rushed the victim to the hospital, but the 17-year-old died in surgery.

Civil rights groups have rallied behind the defendants, David Moreno, then 19, and Justin Pacheco, then 18. A Catholic bishop has called on the prosecutor to drop the murder charges.

“It’s a situation where the prosecutor’s office decided who the criminals were based on their skin color and then came up with a charge,� contends Van Jones, national executive director of the Ella Baker Center for Human Rights, which monitors human rights violations in U.S. law enforcement.

Prosecutors deny any ethnic motivation in the case and say they hope the trial sends a strong message to anyone instigating a potential life-threatening situation.

The trial began Jan. 3 with prosecutors contending that Moreno and Pacheco were responsible for the death of their friend English because they started the street fight that led to his killing. The pair also face assault and gang enhancement charges.

The fight occurred on a quiet Sunday evening in Vacaville, about 50 miles northeast of San Francisco. Once a farm town, the city is now a bedroom community for commuters to the Bay Area. Moderately priced housing tracts there have replaced some of the lushest farmland in the state.

Moreno, Pacheco and English were driving through a neighborhood when they spotted six young men standing on the sidewalk. The two groups traded insults.

Moreno, the driver, then made a U-turn to approach the group. As he drove slowly, someone hit his car and English jumped out, wielding a “slung shot,� a knit cap with a billiard ball inside that could be swung as a weapon.

Moreno, carrying a bar as a weapon, and Pacheco, a pipe, followed, according to testimony.

During the fight, O’Connell stabbed English twice in the back with a hunting knife.

Vacaville police arrested O’Connell and booked him on suspicion of murder. He said he had stabbed English because English was hitting one of his friends with a pipe and then threatened him. The Solano County district attorney’s office accepted his plea to weapon possession.

An autopsy later showed that English had been stabbed twice in the back. The young man whom O’Connell reported that he was defending said he could remember little of the incident.

“Chad O’Connell is white, blond-haired and blue-eyed,� said Pacheco’s lawyer, Barry Newman. “Our clients are both Hispanic. The prosecutor decided to adopt O’Connell’s version of events before interviewing [other witnesses] and before getting autopsy results that showed English was stabbed twice in the back, not in the stomach as Chad originally claimed.�

A jury convicted Moreno and Pacheco of second-degree murder and assault in November 1998, but the trial judge granted a new trial last June on grounds of jury misconduct.

During the current trial, O’Connell has testified that he rushed to a friend’s aid and that English threatened him with a weapon.

“I stabbed him twice, one right after the other,� O’Connell testified.

When defense attorney Dan Healy asked O’Connell to demonstrate how he stabbed English, O’Connell burst into tears. During a brief recess, he flung the knife sheath away in anger.

He also was asked why he did not immediately tell anyone that he had stabbed English. “I thought he was going to the hospital, get some stitches and be all right,� O’Connell said. “I just wanted to go home and act like nothing happened.�

The Solano County district attorney’s office refused to comment on the case last week. In an interview with the Vacaville Reporter in 1997, prosecutor Kathy Geisser said: “I want people to understand that when they create a situation that will likely get someone killed, they are responsible for it.�

After winning the guilty verdict in the first trial, Geisser told the Reporter: “I just hope this sends a message to gangbangers that consequences are great indeed.� The defendants and their families denied that Moreno and Pacheco belonged to a gang.

The California Supreme Court established the provocative act rule in 1965. Unlike felony murder cases, in which a defendant can be found guilty of a murder committed by an accomplice during the commission of a felony, a provocative act murder conviction can stem from any killing the defendant may have provoked. In both types of murder, the sanctions are the same.

“When the defendant or his accomplice, with a conscious disregard for life, intentionally commits an act that is likely to cause death, and his victim or a police officer kills in reasonable response to such an act, the defendant is guilty of murder,� the state high court wrote in People vs. Gilbert.

The only other state with such a rule is Maryland, according to Daniel Macallair, associate director of the Center on Juvenile and Criminal Justice.

Defense lawyers contend that prosecutors have gradually distorted the rule over the years. But the conviction of the Orange County man for the retaliation murder by a rival gang was a “big jump,� said Berkeley criminal defense appellate lawyer Philip Brooks. In that case, a gang member who fired a shot at a rival gang member was charged with the murder of a friend of his who was killed at the scene in retribution.

The state high court voted unanimously in December to review the case. Brooks has asked the court to rule that the provocative act doctrine applies only when a killing is a “reasonable response� to the defendant’s act.

“If they kill somebody in revenge, that is not reasonable,� he said.

But Orange County Assistant Dist. Atty. Claudia Silbar, who heads an anti-gang unit in the prosecutors’ office, said that although a revenge killing might be unreasonable for most people, it is “not only a probable response but also a natural response if you are dealing with a gang subculture.�

She said that she was not familiar with the Solano County case but that the facts suggest the brawl was a “payback� for the fracas the night before and the circumstances were a “a gang scenario.�

Prosecutors are increasingly becoming familiar with the provocative act murder theory, she said, and she expects the state Supreme Court to uphold the murder conviction of the Orange County gang member.

She said the theory applies only when the defendant commits an intentional criminal act and knows that it is dangerous to human life.

“We want to hold people responsible for the deaths that they cause,� she said. “Even though they may not be the actual shooter, they put the ball in motion.�

Defense attorney Healy said that if a broad application of the rule is upheld, police should also suffer its consequences.

“If a provocative act rule is going to be that widely applied, any time a cop beats somebody and that results in a riot, should the cop be held accountable for the riot?� Healy asked. “If that is going to be the rule of law, it needs to be applied evenly.�

Moreno’s and Pacheco’s lawyers believe that their clients will be acquitted but note that they also were optimistic during the trial that ended in conviction.

“Last time we were saying that, we had a wacko jury, so I am reluctant to predict again,� Healy said.

Closing arguments in the case are scheduled for today. Carmen Moreno, mother of one of the defendants, said she is “very nervous, very scared.� The eldest of her five sons has spent the last three Christmases behind bars.

“It is torture,� said Moreno, a clerk for a title company. “I can’t explain it, but it is torture. When I leave work for court, I tell them I have to go to my torture chamber.�