Odds against a successful Hawk appeal

Published online on Monday, Aug. 31, 2009

If Dave Hawk wants to fight his murder conviction, his best chance for an appeal would be to challenge the judge's decision to keep the case in Kings County, legal experts say.

But it's still a long shot, the experts say. Convictions seldom are overturned, because appellate judges don't like to second-guess juries.

As soon as the guilty verdict was announced Friday, Hawk's attorneys said there were plenty of problems with the case. His wife's body was never found. No witnesses saw Hawk kill his wife. And neither his fingerprints nor DNA were found at the crime scene.

But the biggest problem may be that a lot of people in Kings County thought he was guilty even before the trial started -- so it was hard to pick a fair and impartial jury, lawyers said.

"It's a very small community, and this case was discussed and talked about by people a lot," said Michael Idiart, a former Fresno County assistant district attorney.

Carl Faller, a longtime federal prosecutor, said he believes the jury pool probably was biased against Hawk because the trial was held in the city of Hanford. Hawk's wife, Debbie Hawk, lived in Hanford. When she disappeared in June 2006, hundreds of Hanford residents joined in the search for her, Faller said.

In addition, publicity about Dave Hawk dipping into his children's trust fund could have prejudiced jurors, laying the groundwork for them to convict him of murder as well as embezzlement, Faller said. Trying those charges together gives Hawk another legal ground for appeal, he said.

Faller and Hawk's lawyers say Hawk has another legal ground on which to appeal -- insufficient evidence. No evidence or witnesses link Hawk to his wife's disappearance, they said.

No appeal will be easy. Idiart said there is a public misperception that convicted killers get off on technicalities. Based on his 34 years of legal experience, however, Idiart estimated that about 1-in-10 people get their convictions reversed on appeal.

But each case is different.

Before his trial, Hawk's lawyers raised the issue of venue with the help of Craig New, a jury consultant who studied media coverage of the Hawk case. New also studied the answers that potential jurors wrote in a lengthy pre-trial questionnaire and listened to their comments during jury selection, said Dennis Peterson, one of Hawk's attorneys.

New told the judge that Hawk probably would not get a fair trial in Kings County because many potential jurors already believed Hawk was guilty, Peterson said. Judge Daniel Creed rejected that argument.

Peterson and co-counsel Mark Coleman said Friday that once the judge decided to keep the trial in Kings County, they knew they didn't have a level playing field. Peterson explained why: Eight out of 10 potential jurors were familiar with the accusations, and half of them had expressed an opinion that Hawk was guilty.

The defense lawyers said they plan to ask Creed for a new trial before Hawk is sentenced Dec. 4. The lawyers said that if Creed rejects the request, they will appeal to the 5th District Court of Appeal.

Former Fresno County District Attorney Ed Hunt said most appeals don't go anywhere. "It is somewhat rare that an appeal is successful," he said.

But Faller said Hawk's appeal has a chance. "It will be a close call," he said.