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16 MY FIGHT FOR LIFE For the entire four and a half years that I sat on death row, I worked doggedly through my appeals. I labored over my case almost every day, poring over law books and providing information to my attorney . In our opening brief to the Supreme Court of California, we first drew their attention to all the errors that were prejudicial to my case during my trial, and we followed up by pointing out problems in the proceedings themselves. We brought up the issue of the lineup, the illegal search and seizure, and the exclusion of Mexican Americans from the jury panels. We brought up everything that we had claimed in the motion for a new trial filed with JudgeWalker, and presented all of it to the state supreme court. We also made an issue of the disciplinary reports that had been brought into evidence during the penalty phase of my trial. The record clerk brought down from Alcatraz testified that he had found between sixty and eighty reports that had been made against me during my stay in the prison. The files were very complicated: some of the reports dealt with minor infractions, some were falsified, and some were exaggerated . All of these reports were present in the files together. We argued that to include these reports without bringing in the officers to testify about the specific infractions of the rules each report detailed was a violation of my constitutional rights. By presenting only the reports and not bringing in the officers, they had denied me my right to cross-examine the officers. On this point the state supreme court overruled us. We noted as well that during my trial a guard from McNeil Island, John Harris, was brought all the way fromWashington to testify against me. He recounted how he had been assaulted when Dillon and I made our escape from the island, an event that had happened almost twenty years before. In my trial he testified about things that were not in the original records or that had never happened. In his testimony he recalled all kinds of events that cast me in the worst possible light. The testimony should never have been allowed: Harris, obviously prejudiced against me, would have testified to anything that worked against me. It was clear that he fabricated events or recalled things that he had not raised at my trial in Tacoma. One key point we made had to do with the jury instructions during the penalty phase of the proceedings. The prosecution had informed the jury that even if it handed down a death sentence, the sentence would not necessarily be carried out. This was part of the stock instructions that all district attorneys in California gave to juries in death penalty cases. Busch told the jurors that if they sentenced me to death, Judge Walker could reduce the sentence to life, or the Supreme Court of California could reverse or modify the death sentence, or the governor could commute the sentence. By issuing a death sentence, the jury was not necessarily condemning me to die, and Busch repeatedly emphasized this point. We claimed that providing the jury with this information was a violation of my constitutional rights. The jury had no way to know what another judicial department or the executive branch might do if it reviewed my case. Thus, the stock instruction prejudiced the penalty phase of my trial. In my time on death row, I found in the law books a 1958 case, New Jersey v. White (27 N.J. 158, 142 A.2d 65), in which the petitioner claimed the same legal point I was trying to make. In addition, we argued that since the LAPD and the district attorney had planted Robert Luna in my cell, he acted as an agent of the police. There were rulings from other states that lent authority to our point. Those states had ruled that anybody planted by the police becomes an agent of the police. So my constitutional right to consult with counsel before speaking to the authorities had been denied. Joseph Busch had unquestionably planted Luna in my tank, so I thought that this was a very strong point: their entire case rested largely on Luna’s fabricated testimony. Together, Winhoven and I worked pretty hard up on death row to bring all these points to the attention of my attorney, Morris Lavine. In fact...

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