As published in The Recorder, December 18, 2007.

By Mike McKee.

Eighteen years after Dennis Lawley was sentenced to death, evidence literally unearthed last week in a field outside Modesto could bolster defense lawyers’ argument that their client is truly innocent.

Scott Kauffman, a staff attorney at the San Francisco-based California Appellate Project, confirmed Monday that four days earlier he dug up an “extremely corroded” handgun he believes was used by Kenneth Stewart’s real killer on Jan. 22, 1989.

If the gun, which is being examined by the Department of Justice, turns out to be a Smith & Wesson .357-caliber revolver, Kauffman will introduce it as evidence to rebut the state’s claim that the murder weapon was a Ruger .357-caliber magnum pistol found at Lawley’s home two days after the murder.

“This gun should remove any doubt the [state] Supreme Court might have about what it needs to do in this case,” Kauffman said.

Kauffman will find out soon enough. Oral arguments in Lawley on Habeas Corpus, S089463, are set for Jan. 9 in San Francisco. Late last week, Kauffman filed a motion to expand the court record to include evidence of the gun he found.

Sacramento-based Deputy Attorney General David Eldridge, who will argue the state’s position before the court, remained skeptical about the last-minute find.

“We have no indication that it has any connection to our case,” he said Monday. “All we know is it appears [Kauffman] said he found it in a field. [Justice Department examiners] are treating it like any other citizen turning over any gun they found in a field — or, at least, that they said they found in a field.”

Kauffman acknowledged there might be some suspicions because he was alone when he found the gun. If the gun turns out to be a Smith & Wesson, Kauffman believes it’s a crucial find that will “demolish” the AG’s case — even though everyone already agrees Lawley didn’t pull the trigger. That was done by Brian Seabourn, who drove Kenneth Stewart to a remote site outside Modesto and shot him to death as he begged for mercy.

Lawley, however, is on death row rather than Seabourn because prosecutors convinced jurors Lawley paid Seabourn to make the hit in retaliation for a beating Lawley had suffered at Stewart’s hands a few days earlier. Lawley, who has been diagnosed as a paranoid schizophrenic, represented himself at his 1989 murder trial.

Kauffman and San Francisco Deputy Public Defender Bicka Barlow, Kauffman’s co-counsel and wife, contend Lawley is innocent and that prosecutors — including recently deceased Stanislaus County District Attorney James Brazelton — lied and suppressed evidence to secure Lawley’s conviction.

They claim Seabourn snuffed Stewart on orders of the Aryan Brotherhood gang, which allegedly solicited the murder from behind bars because Stewart refused to make financial payoffs to the prison gang while he was imprisoned himself.

Seabourn, convicted of second-degree murder in Stewart’s death and now serving multiple life sentences at the California Correctional Institution at Tehachapi, has insisted from the start that Lawley was not responsible for Stewart’s death.

“With actual knowledge of these facts, Brazelton argued to Dennis Lawley’s guilt jury that ‘no one but Dennis Lawley had a motive to kill’ Stewart,” Kauffman said last week. “If this case isn’t a miscarriage of justice, then it doesn’t exist.”

The gun Kauffman found could complicate matters for prosecutors because Seabourn has testified that after killing Stewart he buried the murder weapon in a field near the intersection of Carpenter and Robertson roads just outside Modesto. That’s where Kauffman went digging last week after the Supreme Court granted him funds for a forensic metal search.

Kauffman said he’d tried before to get approval to take Seabourn to the field for a search, but was turned down by a judge.

Deputy AG Eldridge has until Friday to file a response. In earlier court papers, he argued there was “no credible evidence” establishing Lawley’s innocence, “much less … evidence which both would command the acceptance of any reasonable jury and which undermines the entire prosecution case and points unerringly to innocence or reduced culpability.”

The California Supreme Court upheld (.pdf) Lawley’s death sentence on Jan. 24, 2002, despite Seabourn’s claim.

But only 34 days after affirming Lawley’s sentence, the high court issued an order to show cause why Lawley shouldn’t go free based on defense attorneys’ arguments of innocence.

Following evidentiary hearings, a Stanislaus County judge issued a report in 2005 finding Lawley had not proven his innocence, but noting that several people had motives for the murder.

Much of the defense presented by Kauffman and Barlow rests on allegations that Brazelton — a deputy DA at the time — “undermined the search for truth” by successfully suppressing evidence that the Aryan Brotherhood orchestrated Stewart’s murder.

“Mr. Brazelton knew there was credible evidence Seabourn committed the murder on behalf of the Aryan Brotherhood,” Kauffman and Barlow wrote in court papers. “The words ‘Aryan Brotherhood’ were never uttered before [Lawley’s] jury.”

Lawley had tried to admit evidence of the Aryan Brotherhood defense, but the trial judge rejected it as hearsay. Justice Janice Rogers Brown, writing separately in Lawley’s direct appeal, described this as “a classic example of the hazards of self-representation.”

In court papers, the defense quotes Seabourn testifying that he picked up Stewart under the pretense of planning to rob drug dealers, a favorite pastime of Stewart’s.

In his briefs, Deputy AG Eldridge questioned the credibility of Seabourn and other defense witnesses — many of them former or current members of the Aryan Brotherhood — during the evidentiary hearing.

“The evidence produced by [Lawley] provides no motive for the witnesses at trial to have lied in their testimony,” Eldridge wrote. “Rather, [Lawley’s] current witnesses merely testified, and not credibly, to a contradictory factual scenario.”

The case presents unique problems for the defense. During trial Lawley told jurors he had been framed for Stewart’s murder because he aspired to go down in history as the “Beast of Revelations.”

But being schizophrenic doesn’t justify being sent to death row for a crime one didn’t commit, Kauffman said.

“It is time for that miscarriage of justice to be made right,” he said.


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