Though there have been complaints in the past against how Superior Court Judge Donal Donnelly handles criminal cases, the Imperial County district attorney said the recent reversal of a murder conviction is not Donnelly’s fault.
The California Fourth District Appellate Court ruled last week to reverse the convictions against Floyd Lavender III and Michael Gaines, who were found guilty of first-degree murder, kidnapping and torture. The two will now face a new trial because of what the appellate court described as misconduct by the jury.
The defense for Lavender and Gaines had argued that there was insufficient evidence to support a conviction and jurors had discussed what they inferred from the defendants not testifying on their own behalf. While the appellate court said there was sufficient evidence from which a jury could have found the defendants guilty, the misconduct of the jury was prejudicial.
Though the Imperial County District Attorney’s Office had in the past called into question how Donnelly handles criminal cases, having tried to disqualify him after the Lavender and Gaines decision, District Attorney Gilbert Otero said Donnelly did nothing wrong in this case.
“We feel he instructed the jury properly,” he said. “Unfortunately you can’t control what happens in the jury box.”
One of the fundamental instructions that jurors receive says that those jurors can’t judge a defendant based on whether they testify on their own behalf, Otero said.
Overall Otero said he doesn’t feel there should have been a reversal in the case. The appellate court said there was sufficient evidence for a jury to find the two men guilty.
The District Attorney’s Office is still looking into whether to appeal the appellate court’s decision, but it’s preparing just in case, he said.
“We’re still gearing up for retrial,” he said. “We’re not going to sit back and not do what we need to do to move forward.”
Lavender and Gaines were convicted in May 2010 of first-degree murder in the killing of Courtney Bowser, a runaway who was among a group of kids in a Palm Desert apartment in August 2003 that the defendants were convicted of torturing during a nightlong search for stolen travelers’ checks. Her body was later found in a Holtville-area canal. They were also said to have tortured Kristen Mark-Martin, Michael Hughes and Thayne Tolces.
Both Gaines and Lavender are still being held in Calipatria State Prison, Lavender’s father, Floyd Lavender Jr., said.
Staff Writer Elizabeth Varin can be reached at evarin@ivpressonline.com or 760-337-3441.
Staff Writer Celeste Alvarez contributed information to this story.
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