Death Penalty Restored For San Jose Man

A federal appeals court reinstated the death sentence Thursday for a San Jose man who killed a teenage employee during a 1979 liquor store robbery, saying the verdict was not affected by shackling that forced defendant Marvin Walker to limp to and from the witness stand.

U.S. District Judge Saundra Brown Armstrong had granted Walker a new trial in 2011, saying the jury may have been swayed by a plastic knee brace that sheriff’s officers had fastened under one of Walker’s pant legs. The trial judge never stated any reason for the shackling, and the jury deliberated at length on both Walker’s guilt and his sentence, Armstrong noted.

In overruling Armstrong, the Ninth U.S. Circuit Court of Appeals said the shackle was unobtrusive, the evidence of Walker’s guilt was strong and his crimes were “unspeakably cruel” – killing one employee and wounding two others during one robbery, and pistol-whipping, molesting and shooting a woman during another holdup a month later.

The panel voted 3-0 to reinstate his convictions and 2-1 to reinstate his death sentence. Dissenting Judge Ronald Gould argued for a new penalty trial, saying the shackling “reinforced the idea of Walker’s dangerousness” and noted that he was 19 at the time of the crimes and had no criminal record.

During a $150 robbery of Dan’s Bottle Shop in San Jose in August 1979, Walker shot three employees, fatally wounding 15-year-old Joseph Vasquez, the court said.

The next month, the court said, Walker entered a San Jose medical building, pointed a gun at 20-year-old employee Rose Olveda, took $11 from her, ripped open her blouse and touched her breasts, then pistol-whipped her and shot her in the head. She lost an eye but survived.

Walker denied guilt but was identified by two survivors of the shootings. At his trial, the court said, jurors were aware of his shackling, a witness mentioned it, and the judge said the sheriff takes such measures for anyone who is in custody.

The judge’s comments indicated that “the brace was a more-or-less routine measure” and did not suggest Walker posed a danger in court, Judge Barry Silverman said in Thursday’s majority opinion.

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