Forty years after Douglas Ray Stankewitz was sentenced to death for killing a woman, his lawyers say they have uncovered new evidence that shows he didn't get a fair trial in Fresno County Superior Court.
The new evidence deals with the gun that prosecutors say Stankewitz used to kill 22-year-old Theresa Graybeal in February 1978.
To get a death sentence, prosecutors told jurors that hours after shooting Graybeal in Calwa, south of Fresno, the 19-year-old Stankewitz used the same gun in the attempted murder of a farm worker outside a bar west of Fresno.
Stankewitz's lawyers say that's not true — Graybeal was shot with a .25 caliber handgun; .22-caliber shell casings were discovered at the scene where the farm worker was attacked.
They have asked Fresno County Superior Court Judge Arlan Harrell to dismiss Stankewitz's death case based on alleged prosecutorial misconduct. That's a tall order because Harrell in December rejected the defense lawyers' motion to dismiss. But on Friday, Harrell plans to take another look at the evidence, giving Stankewitz's lawyers hope in gaining his freedom.
Stankewitz, an American Indian known as "Chief" who is now 60, is the longest tenured condemned inmate at San Quentin State Prison.
Putting him to death hasn't been easy.
In 1982, the California Supreme Court tossed his first death sentence due to judicial error. But a year later he was convicted by a different jury and sentenced to death again.
His case has returned to Fresno County Superior Court because a federal appellate court in 2012 overturned his second death sentence due to incompetent defense counsel. Fresno prosecutor Noelle Pebet is seeking to get Stankewitz's death sentence reinstated through a third jury trial.
Stankewitz is being defended by veteran Fresno defense lawyer Peter Jones, legendary San Francisco attorney Tony Serra and his associate, San Francisco attorney Curtis Briggs. They said they uncovered the gun evidence last summer. In their motion, they contend that prosecutors decades ago — not Pebet — committed misconduct by hiding the gun evidence. They also have accused those prosecutors of manipulating witnesses to provide false or misleading testimony.
According to the lawyers, the gun evidence "was not known to the 21 judges, 30 jurors, 16 attorneys and eight courts which have heard Mr. Stankewitz's case over the last 40 years," the motion says.
In court papers, Pebet, a senior deputy district attorney, concedes the gun evidence is problematic. But she also said she is the one who found the difference in the shell casings and provided it to the defense immediately. "No one is making any attempts to hide anything," Pebet says.
Pebet says that to ensure a fair trial, she has told Harrell that she does not plan to mention the farm worker's shooting in Stankewitz's pending trial.
Stankewitz's road to death row began in February 1978, when he and four others — Billy Brown, 14, Marlin Lewis, 22, Teena Topping, 19, and Christina Menchaca, 25 — got stranded in Modesto. Outside a department store, they forced Graybeal into her car and drove off.
In Fresno, they drove to the Olympic Hotel looking for heroin. After Stankewitz, Topping and Menchaca shot up heroin, the group drove to Vine Avenue and 10th Street in Calwa. Stankewitz, Graybeal, Lewis and Brown got out of the car. According to Brown's courtroom testimony, he returned to the car and got inside when he saw Stankewitz raise a gun and shoot Graybeal from about a foot away. "Did I drop her or did I drop her?" Brown quoted Stankewitz as saying.
Later that evening, Fresno police arrested Stankewitz, Topping and Lewis, who were still driving Graybeal's car. The murder weapon — a Titan .25-caliber pistol — was discovered in the car. Menchaca was arrested soon after. She had Graybeal's watch.
Before they were arrested, the group had dropped off Brown at his home in Fresno. He then told his mother what had happened.
Brown's charges were dropped for testifying against Stankewitz. Lewis pleaded guilty to second-degree murder. Menchaca and Topping pleaded guilty to being accessories. Brown, Lewis and Topping have since died.
But before Brown died, he recanted his testimony in a declaration he signed in September 1993. In it, Brown says he never saw Stankewitz with a gun and never heard him utter the words that led to his death sentence. "I did not see who pulled the trigger," his declaration says. Brown says Lewis came back to the car and uttered those words about killing Graybeal.
Brown says in the declaration that he was given alcohol and coerced into testifying against Stankewitz. His declaration, however, wasn't enough to gain Stankewitz's freedom. Now, his lawyers hope newly discovered evidence will lead to his release.
Graybeal was shot in the head at close range. The defense motion says prosecutors committed a "disturbing instance of misconduct" when they "fabricated evidence" by telling jurors in the first two trials that Stankewitz used the same gun in the murder of Graybeal and in the attempted murder of Jesus Meraz later that same day.
The motion says Stankewitz's defense team in 2017 received "a five page, previously undisclosed crime scene report showing that the shell casings from the Meraz offense were .22-caliber shell casing and could not possible have been fired by the weapon used in the Graybeal murder."
The motion says defense lawyers also discovered three .25-caliber shell casings that were test-fired from the murder weapon were "in the evidence bag" for the Meraz shooting.
More importantly, the motion says Stankewitz stands a little more than 6 feet 1 inch tall. The defense lawyers contend Graybeal's autopsy report says she was 5-foot-3. Lewis also was 5-foot-3. The autopsy report says Graybeal was shot by a bullet traveling "10 degrees upwards." Therefore it was more likely that Lewis shot her, the motion says.
But in the 1978 trial, the motion says, a sheriff's crime-scene supervisor gave "false forensic testimony" regarding the trajectory of the bullet, saying it was only 5 degrees upward. The supervisor also said Graybeal's height was 5-foot-7.
"How can anyone honestly conclude that this deceit was not prejudicial," the motion says.
Pebet, however, said Graybeal was 5-foot-7 and that the autopsy report actually shows the bullet wound was 5 feet, 3 inches from the bottom of her feet. Pebet said Brown's declaration is "inadmissible hearsay" because Brown had not been cross-examined to determine whether it was truthful. In addition, Pebet said the evidence shows that Stankewitz and his relatives or associates made several subtle threats toward Brown before his testimony in 1978 and 1983.
But Serra said the case should be dismisseed on constitutional grounds.
"They hid evidence, they destroyed evidence, and they substituted evidence," Serra said. "They argued over and over again that it's the same gun, when it's not. That makes my client look like some kind of serial killer, when he's not."
To drive their point home, the defense lawyers cite four cases similar to Stankewitz's in which defendants were sentenced to death in California, but later had their conviction dismissed or were acquitted at trial because of prosecutorial error, ineffective counsel or witnesses recanting their testimony. That includes:
▪ Ernest "Shujaa" Graham, convicted in 1976, acquitted in 1981;
▪ Troy Lee Jones, convicted in 1982, charges dismissed in 1996;
▪ Oscar Lee Morris, convicted in 1983, charges dismissed in 2000;
▪ Vincente Benavides Figueroa, convicted in 1993, set free in April this year.
"In light of everything we know now, Mr. Stankewitz has paid a heavy price for their lack of due diligence," the motion says. "Between lost and undisclosed evidence, prosecutorial misconduct and ineffective assistance of counsel, the criminal justice system has repeatedly failed him."