Hidden Witness Results in Retrial of Death Sentence

First District Court of Appeal
California Supreme Court

The California Supreme Court overturned the death sentence of Miguel Bacigalupo because jurors did not hear evidence that he killed two brothers in 1983 while facing death threats himself from a Colombian drug cartel.

The court followed the recommendations of a referee, retired Judge Richard Arnason, who conducted hearings over a three-year period with 17 witnesses before concluding there the testimony lent support to a retrial of Bacigalupo’s penalty phase trial.  A new jury may hear that Bacigalupo allegedly acted while under Colombian mafia death threats against him and his family.

The decision upholds his guilt for the two murders, but will give him an opportunity to argue he should not be sentenced to death because of the duress he faced.

The high court’s decision was unanimous.  In addition, Justice Goodwin Liu wrote separately, joined by three other justices, that the prosecution’s withholding of favorable material evidence provided by a confidential informant, Gale Kesselman, violated Bacigalupo’s due process rights and entitled him to the near penalty hearing.

The prosecutor in the case is now a judge on the Santa Clara County Superior Court, Judge Joyce Allegro, according to the opinion.

Bacigalupo was originally tried in Santa Clara County, but because of Allegro’s elevation to the bench, a referee was appointed from Contra Costa County.

Bacigalupo was convicted in 1987 of the 1983 murders of Orestes and Jose Luis Guerrero but the prosecution failed to disclose testimony of the confidential informant that the brothers were killed under duress.

Bacigalupo killed the pair at their jewelry store and was arrested later at his parents’ Palo Alto home with a suitcase full of jewelry from the store while he was preparing to head for the airport.

He eventually admitted the killings but said he was ordered to do so.  His lawyer sought the name of a confidential informant who might confirm his story, but the name was never disclosed.

Justice Joyce Kennard wrote the opinion.


Case:  In re Bacigalupo, No. S079656


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