After 26 Years, Kennedy Gets His Man

It took more than a quarter-century, but George Kennedy and the Santa Clara County DA’s office have a California Supreme Court affirmance in the death penalty case of Fermin Rodriguez Ledesma.

Ledesma was charged in 1978 with robbing a San Jose gas station and then murdering a witness after the witness contacted police. Kennedy, then a deputy in the office, prosecuted the case when it originally went to trial in 1980.

Kennedy got a death sentence, but the California Supreme Court — in January 1987, on the second-to-last day of Rose Bird’s tenure as chief justice — reversed due to ineffective assistance of counsel. Very ineffective assistance of counsel.

Specifically, the court found that Ledesma’s trial attorney, Jefferson Parrish, had brought only one motion before, during or after trial; had raised no objections during jury selection — even though Kennedy had exercised peremptory challenges against several Hispanic jurors; had made no opening statement; had failed to explore a diminished capacity defense; and months after the trial had allowed all his files from the case to become ruined from water damage. Parrish further acknowledged during a hearing into the matter that he’d had a compulsive gambling problem during the trial, according to the ruling.

The DA’s office retried the case in 1989, with Lane Liroff taking the lead and renowned death penalty specialist Robert Bryan representing the defense. Ledesma was again convicted. “I know that our office will not tolerate the killing of a witness. That’s what compelled us to pursue this case,” Liroff told the San Jose Mercury News after the verdict.

For reasons that aren’t immediately clear, it’s taken the Supreme Court nearly 17 years to rule on the second judgment. Oh, there were some hiccups along the way — Ledesma’s appellate counsel sought to file a 1,307-page brief (denied) and to withdraw as appellate counsel (denied) — but nothing too out of the ordinary for death penalty litigation.

Finally, the court on Thursday turned back a myriad of defense claims — including that Kennedy’s office had been motivated by vindictiveness in the retrial. “An inference of vindictive prosecution is raised if, upon retrial after a successful appeal, the prosecution increases the charges so that the defendant faces a sentence potentially more severe than the sentence he or she faced at the first trial,” Chief Justice Ronald George. “In the present case, however, the prosecution sought the same sentence upon retrial that it did at the initial trial. The record thus contains no evidence supporting defendant’s claim of vindictive prosecution.”

Ledesma still can bring a federal habeas corpus claim. Check back in another decade or so for the outcome of that one. 

— Scott Graham


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