Death Sentence in 1980 Double Slaying Reversed

A federal appeals court on Tuesday reversed the death sentence of a man convicted of a double homicide in Fresno, ruling that the defendant’s attorney had provided constitutionally deficient representation.

The U.S. 9th Circuit Court of Appeals, in its third death-penalty reversal this month, ruled 2 to 1 that Fernando E. Caro’s trial lawyer had negligently failed to investigate that his client suffered from brain damage and child abuse.

Consequently, the appellate court said, the attorney also failed to explain to the jury how repeated beatings and brain damage from pesticide exposure might have contributed to Caro’s aggressiveness and lack of judgment.

If such mitigating evidence had been presented to jurors, they might have sentenced Caro to life in prison rather than death, the court said.

“The omission of this evidence renders Caro’s death sentence unreliable,” Judge Warren J. Ferguson wrote for the majority, which upheld the ruling of a federal trial judge. “A little explanation can go a long way. In this case, it might have made the difference between life and death.”

Ferguson, joined by Judge Harry Pregerson, wrote that Fresno Public Defender Marc Ament failed to present crucial information on Caro’s exposure to neurotoxins and child abuse.

“The penalty phase jury was deprived of this critical explanation in determining Caro’s culpability for his crime,” Ferguson wrote.

Judge Andrew J. Kleinfeld issued a strong dissent, saying the trial lawyer had done an adequate job. The 9th Circuit’s majority did not follow Supreme Court precedents on what constitutes “ineffective assistance of counsel,” Kleinfeld added.

Dane Gillette, deputy attorney general, said the ruling was “very troubling.” He said the state would either ask the 9th Circuit to rehear the case before a larger panel of judges or ask the U.S. Supreme Court to review the decision.

But Caro’s current lawyer, Lynne S. Coffin, the chief state public defender, said, “I’m very gratified that the 9th Circuit upheld the findings [of U.S. District Judge James Ware], which I think were fair and accurately describe my client’s disabilities.”

Caro, 52, has been on death row 20 years. He was convicted in October 1981 of the 1980 shooting of two Fresno County teenagers--Mary Booher and Mark Hatcher--who were riding their bicycles near an orchard. Caro was sentenced to death two months later.

The murder verdict and the death sentence were upheld by the California Supreme Court. The U.S. Supreme Court declined review.

Caro then sought review in federal district court in San Jose, where his case had been tried after a judge granted a change of venue.

Ware initially ruled Caro was not entitled to an evidentiary hearing on Coffin’s contention that the trial attorney had failed to adequately investigate Caro’s brain damage and abuse. The 9th Circuit reversed Ware’s decision and ordered him to hold the hearing.

Coffin presented extensive testimony on Caro’s background and presented three experts on toxic chemicals. Caro was the son of poor farm laborers who beat him throughout his childhood, hitting him with fists, sticks, boots and tools. Caro was born with a 3-inch lump on his head due to the use of forceps during his delivery and had several head injuries as a child.

Exposure to Toxic Chemicals Cited

Moreover, Caro “spent his childhood working and playing in pesticide-soaked fields,” according to the 9th Circuit decision.

Caro’s exposure to toxic chemicals continued into adulthood, according to the ruling. During high school, Caro worked as a “flagger” for a crop-dusting company, indicating to pilots where they should spray pesticides onto the fields. Later, as a maintenance worker at FMC Chemical Corp., a manufacturer of toxic pesticides, Caro responded to chemical spills, repaired the ventilation system and was regularly exposed to pesticides and “was poisoned by a number of toxic chemicals at the plant,” Ferguson wrote.

A neurologist, a neuropsychiatrist and toxicologist all testified that at the time of Caro’s trial they would have found he was suffering from brain damage due to exposure to neurotoxicants, his personal history or a combination of the two.

The experts also testified that relevant information on the effect of toxic chemicals was available at the time of Caro’s trial. Also, they testified that the sort of damage Caro suffered could have impaired his judgment, while not necessarily lowering his I.Q.

The state did not present any expert witnesses. Ware concluded that the record “irrefutably establishes that [Caro] suffered brain damage as a result of his exposure to toxic pesticides as well as his personal background.”

Majority Uphold Findings on Trial Lawyer

The 9th Circuit majority Tuesday upheld that finding and Ware’s conclusion that the trial lawyer had provided constitutionally ineffective assistance.

The majority said its ruling was consistent with a recent Supreme Court decision that held an attorney’s failure to investigate and present evidence of a defendant’s mental defect and social history constitutes deficient performance.

Kleinfeld countered that the trial lawyer had consulted two psychiatrists, a clinical psychologist and a licensed social worker and they came up with no strong mitigating evidence. Also, Kleinfeld asserted that even if they had, “it probably wouldn’t have made any difference to the outcome” because Caro had functioned competently in college and the Marine Corps and had prior crimes, which the sentencing jury considered.

Kleinfeld said the majority’s opinion stood for “the proposition that if anyone can come up with anything that might have bolstered whatever case the defense had during the decades following imposition of a death penalty, then the defendant is entitled to a new penalty trial.”