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SAN JOSE — It took two trials for a hungry young prosecutor named George Kennedy to win a death sentence for David Ghent Jr. More than two decades later, the Ninth Circuit U.S. Court of Appeals decided Kennedy may have been too hungry; the court tossed the sentence in 2002, saying his use of a particular expert’s testimony was prejudicial. So Kennedy will try once more. He’s assigned one of his top deputies to round up witnesses, dust off old evidence, piece together the aging case — and ask for the death penalty at a retrial now set for March. “I put a lot of my life into Ghent trials,” said Kennedy, who is 58 and now in his fourth and perhaps final term as Santa Clara district attorney. “I am very proud of the work I did on this case. “I would honestly like to try it again,” he said, “but that’s inconsistent with having to go to budget meetings and doing those sorts of things.” Getting death won’t be easy. Under the law of 1979, when the first trials were held, Kennedy’s office has to persuade a jury the murder was premeditated. And the Ninth Circuit’s ruling means they have to do that without the testimony of the police psychiatrist who interviewed Ghent hours after the killing and spoke to his mental state. But without a retrial — without a death judgment — Ghent, 54, will be eligible for parole in September. He’s already served his seven-to-life sentence handed down after the Ninth Circuit reversed his death penalty, and so far he’s rejected Kennedy’s offer of life without possibility of parole. “Ghent is a person who says he gets high on seeing people bleed to death,” said Kennedy. “I don’t need to have him killed. But as long as we have to put on this trial, we might as well give the jury that option.” Though Kennedy says he doesn’t take the case personally, it’s clear it has a hold on him. He says he thinks about Patricia Bert, Ghent’s 25-year-old victim, every day. “I know Mr. Kennedy was personally moved by the case,” said Francine Nunes, Bert’s younger sister, who backs Kennedy’s decision to seek death. “He was a new father at the time.” To Ghent’s lawyer, the Kennedy connection casts a shadow on the case. Martha “Molly” O’Neal, a Santa Clara deputy public defender, says that if Kennedy were to do nothing and let the Ninth Circuit decision stand, it’s unlikely Ghent could ever win parole. “If they weren’t seeking death in the case, it would certainly get to trial a lot faster,” she said. Kennedy “had a lot to do with Mr. Ghent over the years, but I don’t think that’s a reason to seek death again all these years later.” She says Ghent had an awful childhood, is a decorated veteran, and has been a model prisoner at San Quentin. “I feel very strongly against the death penalty, especially here.” But Kennedy calls her client a “homicidal maniac.” “If you believe in the death penalty, Ghent is an excellent candidate for it,” Kennedy said. AN EXPERT’S TESTIMONY Kennedy launched his opening statement at the first trial, in July 1979, by telling jurors that Ghent “had death on his mind” the morning he knocked on Bert’s door. Proving it turned out to be a big challenge. When Bert failed to show up for work Feb. 21, 1978, friends and family turned frantic. Later that day, her body was discovered on her bathroom floor, hands bound behind her back. She’d been stabbed 21 times. Ghent, who worked with Bert’s husband Paul, was arrested the next day, after two witnesses said they’d seen him leave and then return to the house the morning of the murder. At trial, Ghent took the stand and confessed. He told the jury he remembered going to the Bert home to speak with Paul. He’d already left for work, so Patricia let Ghent into the house while she searched for her husband’s work phone number. About that time, Ghent told jurors, he blacked out. Ghent testified that he awoke to find Bert dead and a bloody knife in his hands. “I was the only one there,” he testified. “I had the knife in my hand, so it couldn’t have been nobody else.” He left in a panic but said he returned to wipe away his fingerprints. He then changed out of his bloody clothes and went for a cup of coffee. In his closing argument, Kennedy said the nature of the crime — including the 21 stab wounds and Bert’s bound hands — showed premeditation. Ghent’s return to Bert’s house also showed planning. The first jury hung on the question of whether the killing was premeditated and deliberate, a requirement for a death sentence at the time. Two months later, Kennedy retried the special circumstance component of the case in front of a second jury. This time, Kennedy placed more emphasis on the testimony of Santa Clara sheriff psychiatrist Melvin Shoor. Shoor had interviewed Ghent hours after the killing and testified that the suspect didn’t appear to suffer from any memory problems, contradicting Ghent’s diminished capacity defense. At the first trial, Shoor was only called to rebut the defense expert’s testimony. From the start, Shoor’s testimony was controversial. The arresting detectives had coaxed Ghent to confide in Shoor about any sex problems, ignoring Ghent’s repeated requests to call an attorney or family member. Ghent’s lawyer at the 1979 trials, Terry Green, sought to exclude Shoor’s testimony, but was overruled. Kennedy made the most of it. At the second trial, he stressed Shoor’s testimony in both his opening statement and closing argument, offering it as proof Ghent was a “liar.” Kennedy also argued that Shoor’s expert opinion was especially valuable because Shoor had interviewed Ghent before he could meet with a lawyer. The second jury found the special circumstance to be true and voted for death. Ghent’s judgment was upheld by the California Supreme Court in 1987, becoming the first death sentence affirmed by that court after voters had removed Chief Justice Rose Bird and two of her liberal colleagues. Twelve years later, Senior U.S. District Judge William Ingram denied Ghent’s federal habeas petition, saying the failure to exclude Shoor’s testimony was harmless error. REASONABLE ARGUMENTS But the Ninth Circuit didn’t see it that way. A three-judge panel, led by Stephen Reinhardt, found that while Shoor’s testimony may have been harmless at the first trial, it was prejudicial in the second trial, particularly because of the emphasis Kennedy placed on it. “The state made use of — and sought to benefit from — this unconstitutional attribute of Dr. Shoor’s behavior,” wrote Reinhardt, who was joined by Michael Daly Hawkins and Johnnie Rawlinson. “By doing so, it only emphasized and exacerbated the violation.” Kennedy says he didn’t take offense. “I didn’t take it as a shot,” he said. “I think he was trying to develop his strained theory.” Kennedy says he’s proud the sentence stood almost 25 years before reaching Reinhardt — who, he says, has never affirmed a capital sentence. “When it finally got to Reinhardt, I knew, of course, we would lose our death penalty.” But Kennedy doesn’t intend to give Reinhardt the last word. He’s asked Deputy DA Charles Gillingham to try the case, and he insists neither the passage of time nor the loss of Shoor’s testimony will stand in his way. Oddly enough, Gillingham’s father was the one who arrested Ghent back in 1978. The senior Charles Gillingham was a sheriff’s deputy then; he later became the county sheriff. Kennedy says the father’s connection doesn’t create a conflict; it only gives the son some more insight. “If Sheriff Gillingham had been a detective in the case, I wouldn’t have assigned it to Chuck because of the issues that would have flowed from that,” Kennedy said. “It will just help his understanding of the evidence gathering and detective phases of the case.” The coincidence doesn’t alarm O’Neal, but, she said, “It is weird.” When the trial gets under way, Kennedy says his office will argue premeditation the same way it did a quarter century ago. “The jury is going to believe the reasonable interpretation of the evidence,” Kennedy said. “It’s unreasonable to go into the house, be there for just a few minutes, undress her, rape her, stab her 21 times and leave in five minutes.” But O’Neal says the evidence shows Ghent acted on impulse. “We have a reasonable argument that David did not carefully weigh the consequences of the killing. The mere number of stab wounds is evidence of that,” O’Neal said. It’s still unclear if prosecutors will be able to share with the jury Ghent’s on-the-stand confession. California abolished the “diminished capacity” defense in 1982, but Ghent can still argue that he lacked the mental ability to achieve the state of mind to premeditate a killing. Gillingham said there are indications the defense will change strategy and try to exclude Ghent’s original testimony, arguing it’s the fruit of Shoor’s poisonous testimony. O’Neal would only say, “We are going to fight over some things.” For Bert’s family, Kennedy’s third try for a death sentence could put an end to a long ordeal. “My sister has now been gone more years than she was alive,” Nunes said. “The judicial system not doing its job is infuriating.” For Kennedy, the case brings his career full circle as it draws toward a close. The last year or so has been rough. The office had to concede it imprisoned Ricardo “Rick” Walker for a dozen years for a murder he didn’t commit. And over Kennedy’s protests, U.S. District Judge Marilyn Hall Patel ordered the release of Glen “Buddy” Nickerson, saying he was “more probably than not” innocent of the murder that sent him to prison 20 years ago. Kennedy put out a press release equating Patel with Rose Bird and insisting on Nickerson’s guilt. But he chose not to retry that case. “I don’t think that one was worth the money,” Kennedy said. “I am confident this one is.”

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