Nearly eight years after he was convicted of killing five members of his family and sentenced to the death penalty, the case of Vincent Brothers is headed to appeal.
Visalia attorney Phillip Cherney filed an opening brief March 19 with the State Appellate Court. All death penalty convictions are appealed by a matter of state law. The Attorney General's office, which will represent the people of California, must now file a response. A spokeswoman for the office declined to comment.
Brothers, a former Bakersfield school principal, sits on San Quentin's death row for murdering his mother-in-law Ernestine Harper, his wife Joanie Harper, and the couple's three children on July 6, 2003. The murders were committed in cold blood, prosecutor Lisa Green told jurors, with Brothers driving cross-country in a rental car during a trip to Ohio to shoot and slay his entire family in Bakersfield. The motive, Green said, was money: Brothers hoped to start his life anew without alimony or child support payments.
In the 451-page brief Cherney lays out a host of issues -- many raised during the trial -- to explain why Brothers' conviction should be vacated.
Chief among them, is the lack of diversity on the jury, Cherney said. In his appellate filing, Cherny complained prosecutor Lisa Green strategically dismissed three potential African American jurors from the pool. The only African American juror who made it to the panel was later kicked off for an undisclosed reason by Judge Michael Bush.
In the opening brief Cherney calls it systemic discrimination, noting "..the court failed to protect and ensure Brothers' rights to equal protection of the law... and to have a jury drawn from a fair cross-section of the community."
"This is an area of real concern for an African American being on trial, being judged essentially by an all white jury," Cherney explained in an on-camera interview with 17 News.
Green said the African American jurors were dismissed for legitimate reasons. At trial, she raised questions about two of the jurors' positions on the death penalty. The third, she said, was an older juror who might have had some difficulties understanding complicated issues brought up in the case.
"I think it would be a sad state of affairs, if a jury pool has to reflect an ethnic makeup of a community," Green told 17 News in an on-camera interview. "What the goal always is from a prosecutor's perspective is that you find twelve impartial and fair jurors."
The five-month trial included numerous biting exchanges between Green and Brothers' defense attorney Michael Gardina. It also included whithering cross examination from Green when Brothers took the stand in his own defense. Gardina died due to complications of a brain tumor in March 2011.
"From what I have read of this record, and have tried myself, there is no question she is a very aggressive prosecutor," Cherney said. "Whether she crossed the line into misconduct is an issue in this case. I think she did."
"An appellate attorney (like Cherney) is looking for issues to raise on appeal, he's combing the transcripts," Green said. "As I said earlier, it was a five month trial, and I said a lot of things and so did the defense attorneys."
Putting Brothers on the stand to testify also was a mistake, Cherney said. He plans to file a separate brief indicating Brothers received inadequate legal advice.
"This was not a case, for example, where somebody is coming at you with a knife and you have to tell the jury what it is you are experiencing, why it is you are acting in self defense," Cherney said. "I think exposing Mr. Brothers to her cross examination presented some significant problems."
Visalia attorney Phillip Cherney filed an opening brief March 19 with the State Appellate Court. All death penalty convictions are appealed by a matter of state law. The Attorney General's office, which will represent the people of California, must now file a response. A spokeswoman for the office declined to comment.
Brothers, a former Bakersfield school principal, sits on San Quentin's death row for murdering his mother-in-law Ernestine Harper, his wife Joanie Harper, and the couple's three children on July 6, 2003. The murders were committed in cold blood, prosecutor Lisa Green told jurors, with Brothers driving cross-country in a rental car during a trip to Ohio to shoot and slay his entire family in Bakersfield. The motive, Green said, was money: Brothers hoped to start his life anew without alimony or child support payments.
In the 451-page brief Cherney lays out a host of issues -- many raised during the trial -- to explain why Brothers' conviction should be vacated.
Chief among them, is the lack of diversity on the jury, Cherney said. In his appellate filing, Cherny complained prosecutor Lisa Green strategically dismissed three potential African American jurors from the pool. The only African American juror who made it to the panel was later kicked off for an undisclosed reason by Judge Michael Bush.
In the opening brief Cherney calls it systemic discrimination, noting "..the court failed to protect and ensure Brothers' rights to equal protection of the law... and to have a jury drawn from a fair cross-section of the community."
"This is an area of real concern for an African American being on trial, being judged essentially by an all white jury," Cherney explained in an on-camera interview with 17 News.
Green said the African American jurors were dismissed for legitimate reasons. At trial, she raised questions about two of the jurors' positions on the death penalty. The third, she said, was an older juror who might have had some difficulties understanding complicated issues brought up in the case.
"I think it would be a sad state of affairs, if a jury pool has to reflect an ethnic makeup of a community," Green told 17 News in an on-camera interview. "What the goal always is from a prosecutor's perspective is that you find twelve impartial and fair jurors."
The five-month trial included numerous biting exchanges between Green and Brothers' defense attorney Michael Gardina. It also included whithering cross examination from Green when Brothers took the stand in his own defense. Gardina died due to complications of a brain tumor in March 2011.
"From what I have read of this record, and have tried myself, there is no question she is a very aggressive prosecutor," Cherney said. "Whether she crossed the line into misconduct is an issue in this case. I think she did."
"An appellate attorney (like Cherney) is looking for issues to raise on appeal, he's combing the transcripts," Green said. "As I said earlier, it was a five month trial, and I said a lot of things and so did the defense attorneys."
Putting Brothers on the stand to testify also was a mistake, Cherney said. He plans to file a separate brief indicating Brothers received inadequate legal advice.
"This was not a case, for example, where somebody is coming at you with a knife and you have to tell the jury what it is you are experiencing, why it is you are acting in self defense," Cherney said. "I think exposing Mr. Brothers to her cross examination presented some significant problems."