MODESTO, Calif. — John Cherry was a friendly man, the sort who might have thought the two young Canadian hitchhikers who liked to drink beer, smoke a little pot and listen to loud music were no threat.
But any freeway revelry ended quickly. At the barrel of a gun, Cherry was ordered by one of the young men to turn off Highway 99, drive down a narrow road and stop at a cornfield five miles south of Merced.
There, with the smell of a herd of dairy cattle heavy in the air, the man with the gun ordered Cherry to lie down and fired a single .38-caliber bullet into his skull.
Nine summers later, those who would abolish capital punishment point to Jerry Bigelow, once convicted and sentenced to death for Cherry's murder, as a strong argument to end state-sanctioned executions. For in a retrial last year, a jury adjudged him not guilty.
As Bigelow tells it, he is every bit as much of a "victim" as the family of the man he was accused of murdering. He spent nine years in jail and on San Quentin's Death Row. He'd be there still if not for a defense team of lawyers, investigators and friends who came to believe in his innocence and convinced a jury of it in a new trial.
"I didn't beat the system," Bigelow, 29, said in an interview last week before he was deported to his native Canada. "I served nine years in prison. I didn't beat anything."
But John Cherry's family and friends say Bigelow forever will be a little man who grew big only when he took a .38-caliber pistol in his hand, then got away with murder.
The family that Cherry left behind gathered last week in the home of his sister, Glennis Morris, three miles outside Modesto. Through all the testimony and legal arguments, they say, the story of their son and brother was lost.
It's not that they dwell on John's death. In fact, they rarely talk about his murder. But he lives on in family stories. His father, Ben, recalls fishing trips. His mother, Jewell, recalls Mother's Day flowers. His brother and two sisters remember his excitement at being an uncle to their growing families.
Because the Bible talks about it, the death penalty cannot be wrong, say Ben and Jewell Cherry, who left their native Oklahoma and settled in the San Joaquin Valley in the 1940s to raise a family. But no matter how painful the loss of John Cherry was and how frustrating Bigelow's release is, this is not a family out for vengeance.
"If he walked through the door, I couldn't shoot him," Ben Cherry, 72, said, explaining that he does not hate the man he is convinced killed his son.
"If we had hatred in our hearts for Bigelow," sister Peggy added, "it would hurt us worse than it would hurt him. He doesn't care if we hate him or not. If we hate him, he wins again. He not only kills John and gets away with it, but then wrecks everyone in the family."
Still, the family finds it hard to understand why Bigelow, who admitted so often and so freely to killing their son and brother, was found not guilty in a second trial, then set free.
In the early and middle 1980s, after he was convicted in his first trial, Bigelow wrote letters to the state Supreme Court demanding that his appeal be dismissed and that his execution take place. To pressure the state, he told reporters from newspapers and a television station that he was guilty.
"I thought it was open and shut," said Keith Cherry, 33, the victim's brother. "I wasn't ready for that (acquittal). I thought it was just a formality."
In a courtroom, however, nothing can be certain. And because of all that uncertainty, the circumstances surrounding the murder of John Cherry remain a mystery.
Jerry Bigelow was the youngest of six children. As his lawyer Robert Bryan tells it, he was the runt, often accused of wrongdoing as a child and just as often beaten. He lived in foster homes off and on as a kid, dropped out of school after the eighth grade, got into trouble at age 15 for stealing a car.
In the next years, he got into more scrapes with the law, though there was nothing major. In the summer of 1980, at age 19, he ended up in a jail in Calgary for a burglary.
There he met Michael Ramadanovic, three years his senior. According to court documents, Bigelow and Ramadanovic, taking the opportunity of a strike by jailers, decided to walk away from the facility on July 18, 1980, for no particular reason other than Ramadanovic didn't like the food given him on his 22nd birthday.
The pair made their way south, committing burglaries along the way. By August, they were staying with two teen-age Canadian girls at the Waterway Motel off Interstate 5 in Sacramento.
Meanwhile, Cherry, 26, a sometime carpenter and not the sort to miss the birthday party of his best friend, said goodby to his girlfriend at their home in Chico around 6 p.m. on Aug. 24, 1980, and sped off for Modesto.