Judge Graber's Dissent

In a previous post, I considered how Justice Mosk's dissent (People v. Thomas) raised important questions about the prosecution's case, challenging its theories about the motive(s) behind the murders.  In this post, I want to take a look at Judge Susan Graber's dissent in Thomas v. Chappell because she challenges the  arguments Thomas's defense team made during the habeas petitions.  She considered the case against Thomas to be much stronger than the majority did, and she considered case for granting him habeas relief to be considerably weak:

"The case against Thomas was stronger than the majority suggests, and the insubstantial testimony of those three witnesses would not have sufficiently corroborated Cercy's testimony or otherwise undermined the State's case. Thomas is therefore not entitled to habeas relief on the basis the district court gave, and I respectfully dissent." (Thomas v. Chappell, p. 18)

The three witness testimonies Judge Graber mentions here are those of Jong Cheol Cho, Randy Turley, and Claus Von Wendel.  She also mentions "Stagger Lee” Andersen elsewhere.  It's understandable that she limits her discussion to these four as the majority in In Re Ralph International Thomas on Habeas Corpus determined that they were witnesses one could rationally expect Chaffee to have interviewed as he and his team prepared to go to trial.  In her opinion, the four would not have been able to bolster the defense, since it rested on Cercy's testimony and this was flimsy:

"Not only was the State's case strong, but Thomas's defense—based largely upon Vivian Cercy's testimony—was weak. Cercy's testimony was imprecise, her answers were meandering and undermined her credibility, and her statements conflicted with each other and with those of other witnesses. Cercy described the man she called “Bo” as brown-haired, then as blond. She testified that the woman she saw arguing (purportedly Mary Gioia) was wearing “dark brown pants,” but the pathologist who performed the autopsy on Mary testified that she wore blue denim shorts and purple pants. One of the police investigators testified that Cercy reported having “quite a bit to drink” on August 15, raising doubts about her perception. Cercy repeatedly testified that she was minding her own business on the night of the murders and therefore was not always paying close attention to what she claimed to have observed. Her testimony was tainted by discussions she had with others, such as the notoriously unreliable ‘Stagger Lee’Andersen, an oft- intoxicated one-time resident of Rainbow Village. (Andersen was so unreliable that the district court did not credit his testimony.) Cercy's estimates of the timing of events that night seemed to lack any firm basis. She could give almost no description of a man who knocked on her window and spoke with her from what was, apparently, only a few feet away.  Although she said that this man threatened her life, she did not drive herself and her two young daughters to safety." (Thomas v. Chappell, pp. 18-19)*

Graber's evaluation of the "Bo Did It" theory should not be ignored.  Even though she may have conceded that Chaffee failed to give Thomas and adequate defense, she argued that including the four testimonies would not have corroborated Cercy's testimony, so they would not have changed the outcome of the trial.  Yes, there may have been no plausible argument showing a motive for the crimes, but the circumstantial evidence pointing to Thomas as the murderer (the missing rifle, the corn-cob pipe, and the change of clothes) would have been too compelling. The jury didn't need to know why Thomas committed the crimes; they just needed evidence that he committed the crimes.

I've argued that the foundation for the "Bo Did It" theory needs to be shored up, and Judge Graber's dissent adds to my skepticism that this can be done in a way that makes the theory's structure considerably stronger.  To do this it seems one would have to identify weaknesses in Graber's dissent, and indicate some ways in which Chaffee could have included testimonies that would have better corroborated Cercy's testimony.  To conclude, I will sketch out a way he might have been able to do this this.

1. All of the testimonies mentioned by Graber do one thing that doesn't seem to have been established during the trial—show that a blond-haired man named 'Bo' was in and around Rainbow Village before and after the murders.  Bo existed, and Bo said and did some pretty shady things the morning of August 16.

2. Among those to whom the police spoke after Mary's body was discovered was a young man by the name of Robin Van Heest ("Robbie").  Van Heest had been part of a small gathering on the night of August 15 that included Greg, Mary, and Thomas.  Chaffee would have been aware that the police spoke to Van Heest from their reports and he was mentioned in Jim Prew's testimony during the preliminary hearing.  Including him as a witness for the defense may have changed the jury's decision.

3. For some reason, the police did not speak to Dan Adams, a young man from Connecticut who knew Greg Kniffin prior to their travels out to California.  Adams was also part of that small gathering on the night of August 15 that included Greg, Mary, and Thomas.  Chaffee would have been aware of this because he too was mentioned in Jim Prew's testimony during the preliminary hearing.  What's more Adams appeared in a photo accompanying a story about the murders in the San Francisco Chronicle on August 19.  Not only did Adams know Greg, but he also knew Bo, knew that Mary was connected to Bo in some way, and he witnessed Bo behaving in a what might described as a possessive way towards Mary a day or two before the murders.  Including him as a witness for the defense would have corroborated Cercy's story (to some degree) may have changed the jury's decision.

Chaffee should have known of Van Heest and Adams, and he should have interviewed them.  Judge Graber did not give her opinion with regard to this matter, although one might argue that she should have taken the inclusion of their testimonies into consideration.  At the very least they could have dispelled some of the mystery of Bo.

*Again, we learn from Judge Graber's remarks regarding Cercy's testimony that there may be facts about it not contained in the court documents I have, but that are contained in the police reports.