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James Hardy has been on California’s death row for more than 23 years, all the while proclaiming his innocence in the brutal murders of a Van Nuys woman and her 8-year-old son. Hardy’s claim gets put to the test on Tuesday, when his lawyer argues before the California Supreme Court that prosecutorial misconduct and defense incompetence at trial prevented jurors from hearing evidence that might have convinced them Hardy didn’t commit the crimes. While assertions of innocence aren’t uncommon in death penalty cases, Hardy, 52, has something going for him that most defendants don’t. In a 1999 report, a referee appointed by the Supreme Court found that certain evidence that was never presented at trial supports Hardy’s claims that the real killer testified against him in court and remains on the loose. The referee, Los Angeles County Superior Court Judge Paul Flynn, held that Hardy had suffered from ineffective assistance of counsel. San Francisco-based Deputy State Public Defender Peter Silten plans to rely heavily on Flynn’s report � as well as his own allegations of prosecutorial misconduct � during Tuesday’s arguments. “The conclusion is inescapable,” he wrote in Supreme Court documents, “that had [Hardy] been competently represented at trial and had [he] not been the target of state misconduct and overreaching, he would never have been found guilty and sentenced to death.” That argument infuriates Los Angeles County Deputy District Attorney Jeffrey Jonas. He prosecuted Hardy and calls the referee’s report a “gross distortion of the facts and a miscarriage of justice.” “There was abundant testimony by many people,” he said in a telephone interview last week, “that Hardy acknowledged he participated [in the murders] and was in the home. There is no factual innocence argument.” “It was a bloody massacre,” he added. Los Angeles jurors sentenced Hardy and co-defendant Mark Reilly to death on Sept. 26, 1983, for the 1981 murders of Nancy Morgan and her son, Mitchell, at their home in Van Nuys. Mrs. Morgan had been stabbed 45 times and her son, 21 times.
Most pertinent to Hardy’s claims of innocence, the referee found that the testimony of nine witnesses at the evidentiary hearing supported Hardy’s assertions that an acquaintance, Calvin Boyd, was the real killer.

Police investigations revealed that Hardy and Reilly were part of a complex conspiracy concocted by Clifford Morgan � the victims’ husband and father � to obtain life insurance benefits. Although it wasn’t clear who actually wielded the knife, prosecutors proceeded on the theory that Hardy was the killer and Reilly his accomplice. Morgan was found guilty of the killings, too, but died of cancer before the penalty phase of trial. Hardy’s and Reilly’s convictions were upheld by the Supreme Court in 1992. But a year later, the court � during Hardy’s habeas corpus proceedings � ordered an evidentiary hearing to determine whether Los Angeles County Deputy Public Defender Michael Demby failed to adequately represent his client. The referee’s 95-page report in 1999 found that Demby was ineffective in not presenting mitigating evidence. Judge Flynn said that forensic evidence not presented at trial offered reason to believe Hardy couldn’t have been at the murder site at the time of the crime, and that he had been set up by several others who were aware of the murder-for-hire plan. But most pertinent to Hardy’s claims of innocence, the referee found that the testimony of nine witnesses at the evidentiary hearing supported Hardy’s assertions that an acquaintance, Calvin Boyd, was the real killer. (Hardy also contends that a man known only as Marcus joined Boyd and Reilly in committing the murders.) The referee said the testimony indicated that Boyd � who testified at the trial and the evidentiary hearing � had bragged about participating in the murders, had cuts on his hands shortly afterward, possessed a knife matching the murder weapon and had provided a false alibi for his whereabouts on the night of the double killings. “In sum,” the referee wrote, “both Boyd’s own testimony and other evidence presented at the reference hearing showed that at the time of the hearing, Boyd lacked credibility and reliability as a witness.” Robert Kalunian, L.A. County’s chief deputy public defender, said the office doesn’t comment on pending cases. He also said Demby, who is retired, didn’t want to make a statement. Silten, the deputy state PD who will argue for Hardy, declined to comment for this story, also noting that it is against office policy to discuss pending cases in the press. In court papers, however, Silten goes for the jugular. He attacks not only Demby’s alleged incompetence at trial and Boyd’s unreliability as a witness, but also prosecutor Jonas for allegedly coercing false testimony from witnesses and secretly granting Boyd immunity from prosecution in exchange for testifying against Hardy. “Whether or not Mr. Jonas ever said to Boyd, ‘I promise that I will not prosecute you,’” Silten wrote, “Boyd believed that he would receive this benefit in exchange for his testimony and he held this belief because of something that Mr. Jonas had said to him.” Los Angeles-based Deputy Attorney General Roy Preminger, who will argue for the state on Tuesday, referred calls to the AG’s press office. Spokesman David Kravets declined to add anything to the arguments in the attorney general’s Supreme Court papers. In those documents, Preminger refutes all the allegations of ineffective assistance of counsel for Hardy and any secret immunity grants for Boyd. He also told the court he wouldn’t respond to Hardy’s claims of prosecutorial misconduct because they were “irrelevant and immaterial” and hadn’t been raised in the trial court. Jonas, who prosecuted Hardy but wasn’t allowed to testify during the court-ordered evidentiary hearings, said the allegations that he had tainted the trial with misconduct make him “livid.” “The facts, based upon all the evidence, which is uncontroverted, is that [Hardy] participated,” Jonas said. “And if he participated in a conspiracy, he’s guilty of murder too.” Jonas said that while he never granted Boyd immunity from the possibility of prosecution for murder, he did immunize him from perjury for lying about his name “and other things” during one preliminary hearing. However, Jonas added, before the evidentiary hearing, he assured Boyd he wouldn’t be prosecuted. The prosecutor said he sincerely believes Boyd is innocent. Jonas also defended Demby, saying the defense lawyer did his “very, very best” in a bad situation. “Hardy made it horribly difficult for Demby because of his demeanor in the courtroom,” he said. “He stared down the jury, he was disruptive and acted like a person who didn’t give a shit.” Jonas said his biggest wish is that after he retires he will be able “to sleep peacefully at night knowing this guy didn’t get away with it.” The two consolidated cases being argued Tuesday are In re Hardy on Habeas Corpus, S093694 and S022153.

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