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Court's Action Will Free Inmate From Death Row

June 23, 1989|PHILIP HAGER | Times Staff Writer

SAN FRANCISCO — The California Supreme Court on Thursday opened the way for the release from Death Row of a once-condemned inmate who won a disputed acquittal in his court-ordered retrial for a 1980 murder in Merced County.

Over one dissent, the justices refused to review a challenge by state prosecutors to an appeals court ruling upholding a jury's verdict in May acquitting Jerry D. Bigelow, an eight-year resident of Death Row who at one point in his legal odyssey confessed the killing and demanded his own execution.

The action came in a brief order by the high court, which declined to hear the prosectors' appeal of Bigelow's acquittal. Only Justice Marcus M. Kaufman voted to hear the case.

Since capital punishment was restored in California in 1977, scores of defendants subsequently sentenced to death have won new trials in appeals to the state high court. But Bigelow's attorney said Thursday he believes his client is the first condemned inmate to win acquittal at retrial. He said Bigelow may be released from San Quentin State Prison within a week or two.

"We're very happy," said the attorney, Robert R. Bryan of San Francisco. "But the tragedy of this thing is that Jerry has had to languish on Death Row for a crime he did not commit."

State Deputy Atty. Gen. Ronald S. Matthias said there will be no further attempt by authorities to revive the capital murder charges against Bigelow.

The case began in 1980 when Bigelow and Michael Ramadanovic escaped from a Canadian jail and hitchhiked to California. Authorities said the two men robbed and kidnaped John Cherry, a Chico carpenter who had given them a ride, and then took him to a cornfield in Merced County where he was shot to death.

Prosecutors charged that Bigelow fired the fatal bullet, but Bigelow said Ramadanovic was the triggerman. At trial, Bigelow, who had a ninth-grade education and was 20 at the time, was granted his request to represent himself but was denied the assistance of an advisory counsel. A Merced County jury found him guilty of murder, and he was sentenced to death.

Meanwhile, Ramadanovic pleaded guilty in separate proceedings and was sentenced to life without possibility of parole.

In 1984, the state Supreme Court, calling Bigelow "totally incompetent" in representing himself, overturned the verdict and granted him a retrial.

After the reversal, Bigelow told authorities and reporters that he had fired the fatal shot and asked to be executed. But his new defense attorney, Bryan, said that Bigelow was lying and that his confession was the reflection of his tendency as a child to falsely admit guilt to avoid beatings by an abusive father.

The second trial was held in Monterey County to avoid the potential for jury prejudice resulting from publicity surrounding the case in Merced County. Bigelow's defense contended that at the time of the shooting, he had been passed out in the car. The defense also presented testimony from Ramadanovic's fellow prison inmates quoting Ramadanovic as admitting that he had killed Cherry.

In May, 1988, the jury, after six days of deliberation, convicted Bigelow of robbery and kidnaping but unanimously acquitted him of the murder charge. However, in a confusing action, the jury also said that the murder had been committed during a robbery and kidnaping by Bigelow--a special circumstance that under state law qualifies a defendant for the death penalty.

Monterey Superior Court Judge Harkjoon Paik concluded that the verdicts were inconsistent and sent the case back to the jury for further deliberations, over vigorous objections by the defense. Soon after, one of the jurors switched his vote and, with the jury deadlocked 11 to 1 to acquit, Paik declared a mistrial.

In March, a state Court of Appeal reversed the decision and ordered Bigelow's acquittal. The panel found that while the judge could have polled the jury or otherwise asked for clarification of its verdict, he should not have directed jurors to reconsider the verdict.

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