Judge denies motion to gag retired Fresno judge who prosecuted Stankewitz

A judge on Friday denied a defense request to issue a gag order against a retired Fresno appellate justice who convicted Douglas Stankewitz of murder in the 1970s – a crime that sent Stankewitz to death row.

At issue is a comment James Ardaiz, a retired justice from the 5th District Court of Appeal, made to The Bee in October last year: “Doug Stankewitz did what I convicted him of doing – a cold-blooded, premeditated murder.”

Stankewitz’s lawyers contend Ardaiz’s influence in the Fresno community will deprive Stankewitz of getting a fair retrial of his death sentence, which was ordered by a federal appellate court in 2012 due to incompetent counsel.

In making the motion, defense lawyer Curtis Briggs told Judge Arlan Harrell in Fresno County Superior Court: “This is a life or death struggle for the Chief.” Stankewitz’s family and friends, who attended the hearing, call him “Chief” in honor of his American Indian heritage.

Briggs specifically asked Harrell to prohibit Ardaiz from making any comment about the case, publicly or privately.

In making his argument, Briggs said Ardaiz “is a giant in the field of law” and so respected in the Fresno community, his words amounted to shooting Stankewitz “in the heart.” In addition, Ardaiz knows intricate details of the Stankewitz case, Briggs said. If Ardaiz is allowed to express his views, it would sway public opinion and deprive Stankewitz of his constitutional right to a fair trial, the lawyer said.

Prosecutor Noelle Pebet, however, argued that Ardaiz had a constitutional right to free speech. The prosecutor also pointed out that Ardaiz only expressed his opinion about Stankewitz in one newspaper article, which Pebet said is insufficient to support the allegation that Stankewitz would not get a fair trial.

Harrell agreed, saying Ardaiz has a right to express his opinion. The judge also said there are safeguards to ensure Stankewitz gets a fair trial, such as questioning potential jurors about whether they know any facts or have preconceived biases about the case. “Jurors will be asked to disclose what media reports they have seen or heard,” Harrell said.

Back in Fresno again

Nearly four decades after Stankewitz was convicted of fatally shooting 22-year-old Theresa Graybeal in 1978 and supposedly bragging to his friends – “Did I drop her or did I drop her?” – he has returned to Fresno for a third retrial of his death sentence.

In 1982, the California Supreme Court overturned Stankewitz’s first death sentence. The following year, he was again convicted and sentenced to death, but that didn't hold up, either.

For his third trial, Stankewitz’s defense team includes Fresno attorney Peter Jones and legendary San Francisco attorney J. Tony Serra, who has successfully defended Black Panther leader Huey Newton in a murder trial and represented individuals from groups as diverse and politically charged as the White Panthers, Hells Angels, Good Earth and New World Liberation Front. Serra also was the subject of the 1989 movie "True Believer" about a murder in San Francisco's Chinatown in which he won an acquittal for death row inmate Chol Soo Lee.

Because Stankewitz contends he didn’t kill Graybeal or utter that chilling quote that led to his conviction, the defense team has filed a motion for a new trial, which includes a declaration from Billy Brown, who was with Stankewitz when Graybeal was fatally shot. The motion will be argued on June 16.

According to court records, Brown was 14 years old when he testified in Stankewitz’s trial. According to Brown's testimony, Stankewitz raised a gun and shot Graybeal from about one foot away. “Did I drop her or did I drop her?” Brown quoted Stankewitz as saying. For his testimony, Brown’s murder charge was dropped, Stankewitz’s lawyers said.

In a declaration Brown made in September 1993, he says he never saw Stankewitz with a gun and never heard him utter the words that led to the death sentence. Brown died since making the declaration.

In court Friday, Pebet told the judge that Brown’s declaration is hearsay and inadmissible as evidence because Brown can’t be crossed-examined. Stankewitz’s lawyers, however, contend it is admissible.

Ardaiz said Friday he was unaware of the defense motion to prohibit him from taking about Stankewitz since he was not served with court papers to attend the hearing. Ardaiz also said he has a right to speak freely.

But this time, Ardaiz said: “I am not going to dignify any motion put forth by Serra and his colleagues with a response.”

This story was originally published April 14, 2017 at 3:20 PM with the headline "Judge denies motion to gag retired Fresno judge who prosecuted Stankewitz."