San Francisco – In what is believed to be the first of its kind, San Francisco County Judge John K. Stewart ruled that the prosecution had not proven beyond a reasonable doubt, during an evidentiary hearing, that either Michael Wilson or Emmitt Lewis were the actual killer or acted with reckless indifference during a 2003 incident that led to the death of a pedestrian.
Therefore, the two men, who were convicted in 2006, will be brought back for re-sentencing next week and could at that point be released. Mr. Lewis hugged his longtime attorney, Public Defender Nicole Solis, at the end of an emotional ruling by the judge.
In 2006, the two men were convicted of first-degree felony murder after a woman in San Francisco was robbed. The two men then allegedly took off in their truck at speeds estimated between 47 to 53 mph when they struck and killed a pedestrian, colliding first with a GMC truck and then a parked van further down the road before ending up at a 45-degree angle, straddling a staircase.
During the evidentiary hearing, Chris Kauderer, an accident reconstruction expert, testified that it was his belief that Mr. Lewis was the passenger at the time of the accident and that he climbed out of the passenger side window, since the car doors were jammed.
It was crucial to determine who was the driver – acted with the intent to kill or was a major participant in the crime and acted with reckless indifference– in order to determine which man, if either, would be eligible for re-sentencing under SB 1437, which eliminated felony murder except where the individual was either the actual killer, a major participant in the crime or acted with reckless indifference to human life.
The judge walked through the facts of the case, noting that the robbery victim “was very clear that the person who emerged from truck and robbed her… was Mr. Wilson.” He added that “she was very clear that he was the passenger.”
However, that testimony was contradicted by other witnesses. One of them saw Mr. Wilson rob the lady, but get out of the driver’s side. Later he said that he wasn’t sure where the man who robbed the lady got out of the vehicle.
“We have two conflicting statements as to who was the driver,” the Judge said. The other problem is, he said, “It’s certainly possible that they changed positions between that time and the time of the actual robbery. But maybe not.”
Given the conflicting eyewitness accounts, the judge evaluated the state of the physical evidence which proved crucial to the final decision.
There were blood stains on the passenger side of the vehicle – on the glove compartment and on the headliner.
The judge noted that there was no dispute among experts – police expert from 2006, Officer Mahoney and the defense expert from this year, Mr. Kauderer – as to how the vehicles collided. There was some difference between how the passengers, who were not wearing seat belts would have moved upon impact, with Mr. Mahoney saying they would have gone forward and to the right, and Mr. Kauderer arguing that wasn’t possible, that they simply went forward.
The judge pointed out, “Officer Mahoney did not give an explanation as to how the blood got on the passenger side of the vehicle.” Critically, DNA analysis showed that that blood belonged to Mr. Lewis. Mr. Mahoney never explained how that occurred.
Nor did Mr. Mahoney explain how Mr. Lewis’ shoe ended up on the passenger side of the vehicle.
The People tried to argue that Mr. Lewis’ blood got there as Mr. Lewis tried to leave through the passenger window. Defense’s expert disagreed with that, arguing that those would have come at the time of impact.
Here was a key point of reasoning by the judge. If Mr. Lewis was the driver, “it would have made no sense for him to try to exit through the passenger window.”
He would have had to climb over the gear shift and Mr. Wilson, who would therefore have been the passenger, and somehow crawl out that window.
“It just doesn’t make sense that anyone would have tried to exit going out that window when the driver’s side window was open and closer to the ground,” he said.
The judge didn’t mention it, but Mr. Wilson was found trying to exit through the driver’s side window, which adds to the evidence on this.
“Upon reviewing, which is extremely important here in view of the eyewitness testimony, the People have not proven beyond a reasonable doubt that Mr. Lewis was the driver of the vehicle and was the actual killer,” Judge Stewart said.
Nor did the People prove that “Mr. Wilson, acting as the passenger, acted with reckless indifference of human life.”
He said, “It is the view of the court that the petition should be sustained (and) the defendants are eligible for resentencing.”
Based on that ruling, the defense requested that Mr. Lewis, who has been in custody since 2003, be released.
Judge Stewart said, “Mr. Lewis is not going to be released today.” But he did believe that the credit calculations by probation could take place relatively quickly. He set the next hearing for August 19, at which point both defendants could be released.
—David M. Greenwald reporting