The condemned killer of two brothers in a San Jose jewelry store nearly three decades ago appears to have a strong chance of a reprieve from the California Supreme Court.
During more than an hour of legal sparring Wednesday in San Francisco, the justices expressed concern about whether a Santa Clara County prosecution team, led by now-Superior Court Judge Joyce Allegro, failed to turn over crucial evidence that might have spared Miguel Angel Bacigalupo a death sentence at his 1987 trial.
The Supreme Court is reviewing the 2009 findings of a judge who concluded that Allegro and particularly her lead investigator, Sandy Williams, withheld evidence that would have supported the defense's argument that a Colombian drug lord had ordered Bacigalupo to carry out the murders.
Retired Contra Costa County Superior Court Judge Richard Arnason concluded the DA's office concealed that evidence from Bacigalupo's defense lawyers, and the Supreme Court must now decide whether to accept his conclusions and reverse the death sentence.
Although two of the court's seven justices did not ask questions, others were clearly troubled by the possibility the trial was tainted. A Santa Clara County jury sent Bacigalupo, now 50, to death row for shooting to death Jose Luis Guerrero and Orestes Guerrero inside their jewelry store on The Alameda.
At trial, Allegro told the jury the crime was a straightforward robbery, mocking claims that Bacigalupo was told his family would be killed by a drug organization if he didn't murder the brothers. But numerous witnesses, including a confidential informant, told the prosecution team of the drug connection before the trial, yet the information was not revealed to the defense, according to court records.
"Isn't that exactly the kind of thing a defense like this one would want to know?" Justice Goodwin Liu asked Deputy Attorney General Jeffrey Laurence.
Added Justice Carol Corrigan, responding to Laurence's argument that Arnason's report was legally flawed, "It sounds to us like you're trying to reweigh the evidence. Ordinarily those arguments don't fare well."
Laurence flatly denied that Allegro or Williams withheld evidence. And he told the justices that the informant's account has waffled over time, and was deemed "speculative" after Bacigalupo's arrest.
Arnason, however, found in his lengthy report to the Supreme Court that the informant, Gail Kesselman, was "credible," at the same time doubting the truthfulness of both Williams and Allegro. Kesselman died of cancer after testifying to Arnason that the murders were connected to a drug kingpin with ties to the Medellín cartel.
Allegro has declined to comment, but the District Attorney's Office has said it would defend "these hard-fought and fairly obtained convictions."
Robert Bryan, Bacigalupo's lawyer, said the evidence would have made a major difference.
"I don't think the defense went into this (trial) with one hand tied behind its back, but two," he told the justices.
The court has 90 days to rule.
Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at Twitter.com/hmintz.