Judge: Kerman man can’t be executed for 1979 murder

A Kerman man who has spent more than three decades on California’s death row for raping and killing his 12-year-old stepdaughter is ineligible for the death penalty because he is intellectually disabled, a Fresno County Superior Court judge has ruled.

Instead, Judge Wayne Ellison said Donald Griffin should spend the rest of his life behind bars.

Ellison’s ruling is the first of its kind in Fresno County Superior Court and gives death-penalty opponents new fuel to ban capital punishment in California.

“We are a civilized society,” said Fresno lawyer Barbara Hope O’Neill, who defended Griffin in the 1990s. “This ruling just shows how ridiculous the death penalty is, not just for Mr. Griffin, but for the family of the victim who has to agonize over every twist and turn in the case.”

Ellison’s ruling earlier this month came after several experts testified that Griffin was intellectually disabled before he turned 18 years old.

When Griffin became intellectually disabled is key. A 2002 U.S. Supreme Court ruling called Atkins v. Virginia bans the execution of mentally disabled defendants because it violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

Court records say Griffin was 30 when he was accused of raping and killing his stepdaughter, Janice Kelly Wilson, who was known as Kelly, in December 1979. He was convicted and given the death penalty in November 1980.

“This court finds that the convincing force of the evidence supports the conclusion that petitioner (Griffin) does have a condition of significant sub-average general intellectual functioning within the meaning of Atkins and Penal Code 1376,” Ellison wrote in his Nov. 12 ruling. Penal Code 1376 also addresses a defendant’s intellectual disability and the California death penalty.

“Based on the foregoing findings of fact and conclusions of law, this court rules that petitioner is ineligible for imposition of the death penalty under Penal Code 1376 and Atkins,” Ellison wrote.

Ellison then sentenced Griffin, who waived his right to attend the Nov. 12 hearing, to life in prison without the possibility of parole.

Steve Wright, an assistant Fresno County district attorney, said this week he could not comment because the case is still pending; the District Attorney’s Office is consulting the California Attorney General’s Office about whether to appeal Ellison’s ruling.

One of Griffin’s appellate lawyers, Mary McCombs, also declined to comment, saying the case is pending a decision by the prosecution.

But O’Neill said Tuesday: “This is absolutely the right ruling.”

Until the prosecution makes its decision, Griffin, 66, will remain on death row in San Quentin State Prison.

Since 1978, when California reinstated the death penalty, 13 death row inmates have been executed. The last was Clarence Ray Allen, who received a death sentence in 1982 for masterminding Fresno’s notorious Fran’s Market slayings of Bryon Schletewitz, 27, Douglas White, 18, and Josephine Rocha, 17.

By the time he was executed in 2006, Allen was 76, a diabetic, legally blind, using a wheelchair and had survived a near-fatal heart attack at San Quentin. His accomplice, Billy Ray Hamilton, 57, never saw the executioner. He died the following year of natural causes, prison officials said.

Death-penalty watchers say the last time a death row inmate from Fresno County was resentenced to life in prison without parole was in 1998.

Peter Edelbacher was sentenced to death in 1983 for killing his wife, Lela, but the penalty was overturned six years later by the California Supreme Court.

Citing courtroom errors, the state’s high court ordered a new trial for Edelbacher on whether he should be executed.

After years of legal wranglings and several false starts, a jury was chosen in October 1998 to hear evidence against Edelbacher. But on the day testimony was scheduled to begin, the District Attorney’s Office informed Judge Ralph Nunez that it could no longer seek the death penalty. In their decision, prosecutors cited several rulings by Nunez to exclude certain evidence the prosecution had wanted to present against Edelbacher.

Edelbacher, 60, remains behind bars in Pleasant Valley State Prison in Coalinga.

The only other death row inmate from Fresno County to escape the execution chamber was Michael Todd Leach. But that was a jury’s decision.

In October 1979, Leach and Patrick Allen Jones lured 17-year-old Michael Messer to a fig orchard at DeWolf and Ashlan avenues, east of Fresno. There, they robbed Messer and stabbed him to death.

Jones pleaded guilty to murder and was sentenced to 25 years to life in prison.

Leach was given the death penalty after a jury convicted him of murder during the commission of a robbery. At the time, he was 18 and the youngest death-row resident in the United States.

But on Dec. 31, 1985, the state Supreme Court under Rose Bird overturned the death penalty for Leach and 10 other defendants. The penalty phase of Leach’s trial was retried, and a jury concluded that he should receive life in prison. In 1988, Judge Mario Olmos sentenced Leach to life in prison without parole. Leach, 54, remains behind bars at Salinas Valley State Prison in Soledad.

In the Griffin case, court records say Kelly’s mutilated body was found by a motorist Dec. 13, 1979. The girl had been raped, sodomized, stabbed in the neck, strangled and cut open with a hunting knife, prosecutors said.

Griffin admitted to killing Kelly but denied raping her, court records say.

Given a death sentence, his case has been tangled in a lengthy legal fight. In 1988, the California Supreme Court upheld the conviction but overturned the death sentence, ruling that the jury in the 1980 trial was wrongly told that if they sentenced Griffin to life in prison without possibility of parole, the governor could modify that sentence so Griffin eventually could be paroled.

In his first trial, Griffin was represented by Fresno attorney Robert Rainwater. In his second trial in 1992, Griffin was defended by O’Neill and Fresno attorney Peter Jones. A new jury gave Griffin the death penalty again, but during the trial O’Neill and Jones raised the mental retardation issue.

Because his intellectual disability was part of the record, Griffin’s appellate lawyers, after years of legal fighting, were able to bring his case back to a Fresno courtroom this year after the California Supreme Court ruled they had presented enough evidence on Griffin’s behalf to qualify for a hearing under the 2002 Atkins ruling.

The hearing took place in Ellison’s courtroom in July.

Griffin, who did not attend the hearing, was represented by McCombs, a supervising deputy in the state Public Defender’s Office, and San Francisco attorney Michael Laurence, executive director of the Habeas Corpus Resource Center. They contend Griffin, who had no prior criminal record before the killing, has been intellectually disabled since childhood.

Prosecutors Robert Mangano of the Fresno County District Attorney’s Office and George Hendrickson of the Attorney General’s Office represented the victim’s family. They contend that while Griffin may be borderline mentally disabled, he still knew what he was doing when he raped and killed his stepdaughter.

During the hearing, experts for Griffin said he suffered physical abuse as a child under his father’s harsh discipline. In addition, Griffin was subjected to “severe and violent sexual abuse” within his extended family, court records say.

Griffin’s witnesses include J. Gregory Olley, a professor at the University of North Carolina and expert in the field of forensic psychology as it relates to intellectual disability and the death penalty. Olley testified that Griffin was the product of an impoverished home: his parents were cotton pickers and Griffin could not read while growing up in the Tranquillity area. He barely reads at first-grade level today, Olley told the judge.

“He was a loner and withdrawn. He was disheveled in his appearance,” Olley testified.

Because of his speech impediment, Griffin was reluctant to go to school. “Kids would call him ‘dummy’ and ‘retard,’ ” the psychologist told Ellison. Though he was friendly, Griffin could not make friends because he was not a good conversationalist, Olley said.

On cross-examination, Mangano suggested that Griffin was smart enough to plan Kelly’s murder. But Olley said that wasn’t the case; Griffin never cleaned the victim’s blood off his shoes, clothing and truck. Authorities also apprehended Griffin quickly, Olley testified.

In his Nov. 12 ruling, Ellison said the prosecution expert, Andrew Cavagnaro, who obtained his graduate degrees from Fresno State and the California School of Professional Psychology, did not provide “a sound basis for concluding that petitioner is not intellectually disabled.”

“The court therefore finds that the petitioner (Griffin) has met his burden to prove that it is more likely than not that he is intellectually disabled,” Ellison wrote.

This story was originally published November 26, 2015 at 2:38 AM with the headline "Judge: Kerman man can’t be executed for 1979 murder."