SANTA CLARA COUNTY, Calif. — Twenty-five years after a Santa Clara County jury condemned him to die, double-murderer Miguel Bacigalupo has put the prosecution team that sent him to death row on trial.
Armed with a thick bundle of findings by a judge supporting claims of prosecutorial misconduct, the convict's attorney on Wednesday will ask the California Supreme Court for a new trial in the 1983 slaying of two brothers in their San Jose jewelry store.
It is rare for the state's high court to reverse a death sentence, but Bacigalupo, now 50, may have a better shot than most. That is because a superior court judge ordered by the Supreme Court to explore Bacigalupo's case found three years ago that the lead prosecutor and investigator in the 1987 trial kept crucial evidence from the jury.
The Supreme Court must now decide whether to accept the judge's findings.
The allegations have put the prosecutor and now superior court judge, Joyce Allegro, on the spot for nearly a decade as they've made their way through the sluggish death penalty appeals process.
"He was cheated out of a lot that should have been done," said Robert Bryan, Bacigalupo's lawyer.
Allegro said in an email she would be out of her office and unavailable until June. She has declined to comment on the appeal in the past. But the state attorney general's office and Santa Clara County District Attorney's Office have strongly defended the trial's fairness.
The appeal stems from Bacigalupo's conviction for killing Jose Luis Guerrero and Orestes Guerrero, who owned a jewelry store on The Alameda. At trial, Allegro argued that Bacigalupo shot the brothers in a straightforward jewelry heist.
Bacigalupo, however, maintained that the Colombian mafia ordered him to kill the brothers and that his family would have been murdered if he failed to carry out the "drug hit." The jury heard scant evidence to back up a connection with drug traffickers.
But evidence unearthed during the appeal suggested Allegro and particularly her lead investigator, Sandra Williams, had strong information from a confidential informant that might have supported Bacigalupo's claim. And the appeal has hinged on the fact the prosecution team did not share that information with Bacigalupo's defense attorney before trial, as the law requires.
At the Supreme Court's direction, retired Contra Costa County Superior Court Judge Richard Arnason held lengthy hearings over several years. One witness flown in from Venezuela confirmed that shortly before the murders Bacigalupo had met with Jose Angarita, a cocaine trafficker with ties to Pablo Escobar and the Medellin cartel, according to court papers.
The star witness for Bacigalupo's appeal was Gale Kesselman, the confidential informant who had told Williams of the Colombian mafia link after Bacigalupo's arrest. Arnason found "credible" her testimony that the "murders were orchestrated in part by Jose Angarita."
Kesselman died of cancer after testifying before Arnason in 2006.
In his report to the Supreme Court, Arnason harshly criticized Williams and Allegro, repeatedly branding Williams, a former DA investigator, "not truthful" about her handling of the information. And while not as harsh toward Allegro, the judge said "there are some issues regarding her credibility."
The attorney general's office declined to comment. But in court papers, prosecutors say Arnason's findings were "based on insurmountable legal errors and are largely unsupported by the evidence."
Prosecutors argue Kesselman's accounts were "dubious at best," and that investigators deemed the Colombian drug connection to the murders speculative.
They maintain the evidence would not have swayed the jury because even if true it would show "a planned and organized murder, with (Bacigalupo) acting as a hired assassin."