In re FRED HARLAN FREEMAN
Filed 5/18/06
IN THE SUPREME COURT OF CALIFORNIA
)
In re FRED HARLAN FREEMAN, )
) S122590
on Habeas Corpus. )
__________ )
Petitioner Fred Harlan Freeman was sentenced to death for the January 1984 murder with special circumstances of Donald Koger. We affirmed the judgment on direct appeal. (People v. Freeman (1994) 8 Cal.4th 450.)
On February 10, 2004, Freeman filed a third petition for writ of habeas corpus presenting four claims. Each claim relied at least in part on the allegation that the Honorable Stanley P. Golde of the Alameda County Superior Court, who presided over Freeman's trial, had an ex parte conversation with the prosecutor during which he directed the prosecutor to excuse Jewish prospective jurors from the jury, and that the prosecutor followed Judge Golde's advice in exercising his peremptory challenges. We issued an order to show cause why relief should not be granted on the grounds that the trial judge actively colluded with the prosecutor to secure a conviction and death sentence and that the prosecutor improperly exercised peremptory challenges on the basis of religion at the advice of the trial judge. After receiving respondent's return, we directed the Presiding Judge of the Santa Clara County Superior Court to select a judge to serve as a referee at an evidentiary hearing. The presiding judge selected the Honorable Kevin Murphy, and we appointed him as our referee to take evidence and make findings of fact on specified allegations.
On April 5, 2005, the referee issued his report. He found that Judge Golde did not direct the prosecutor during an ex parte conversation to excuse prospective jurors who were Jewish and that the prosecutor did not in fact excuse any prospective juror who was Jewish or who the prosecutor believed to be Jewish. After carefully considering the record and the briefing in this court, we likewise conclude that Freeman has failed to prove the allegations in the petition. The order to show cause is discharged.
Background
A. The Underlying Judgment
The facts underlying Freeman's convictions are not pertinent to the issues encompassed in the order to show cause. It suffices to note that a jury convicted Freeman of the first degree murder of Donald Koger with the special circumstance of robbery murder, five counts of robbery, and three counts of attempted robbery, all with the personal use of a firearm. Freeman and two others, one a codefendant at trial, robbed the patrons of a neighborhood bar in Berkeley. Freeman shot Koger in the left side of the head, killing him. After the other two robbers fled, Freeman stayed behind and took property from the patrons one by one. Three eyewitnesses identified Freeman as the gunman who killed Koger, and another identified him tentatively. Carmen Maria Horton, who was Freeman's friend and the codefendant's girlfriend, testified that she was with both Freeman and the codefendant shortly after the crime. Freeman told her that they had gone to the bar to â€
