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Retrial in Slaying Almost a Quarter Century Ago

July 4, 1986

HANFORD, Calif. (AP) _ Booker T. Hillery Jr. had been in prison for nearly a quarter-century for the murder of a teen-ager when the conviction was struck down. Now he and the victim’s family must endure another trial.

Only two convicted murderers have been in California prisons longer than Hillery, and the prospect of a retrial has roused wrenching reminders of Marlene Miller’s death for this farming town of 25,000 people.

″The Hillery case at this point in time almost has a life of its own,″ said defense attorney Clifford Tedmon. ″I doubt that there’s a 5-year-old child in Hanford today who hasn’t heard of the Hillery case in one form or another.″

Hillery has spent 24 years in prison for the murder of 15-year-old Marlene, whose body was found with her sewing scissors sticking out of her neck.

The U.S. Supreme Court overturned the conviction in January because blacks were excluded from the 1962 grand jury that indicted Hillery, who is black.

Kings County District Attorney Robert Maline decided to retry the case, and Hillery, now 54, has been ordered to trial Oct. 20.

Hillery escaped the death penalty three times as the nation revised its standards for execution. He ultimately received a life sentence with the possibility of parole, and residents have gathered up to 16,000 signatures on protest petitions before each parole hearing.

A jailhouse lawyer with a halo of gray hair to mark the passage of time, Hillery contends his rights were abused in an investigation so old that many key witnesses are dead or too ill to testify.

Among them are the chief investigator at the murder scene, the deputy who arrested Hillery and the state criminalist. Their testimony will be read at the retrial, typically a disadvantage to the prosecution because readings tend to bore jurors, legal experts say.

Time also can blunt memories of those still able to testify, but they will have their original words to consult.

The case against Hillery is purely circumstantial, ″but it’s very sound circumstantial evidence,″ Maline said.

Marlene Miller’s father, Walter, declined to be interviewed.

His daughter was sewing a party dress when she disappeared from home March 21, 1962. Her body was found the next morning in an irrigation canal. She died of a collapsed lung, and there was evidence of an attempted rape.

Hillery was on parole for rape and was working as a ranch hand at a dairy four-tenths of a mile from the Miller home. Physical evidence placed him one- quarter mile away the night of the slaying.

Hillery denied entering the house or molesting the girl. He acknowledged boots found in his car were his but denied that gloves and a belt recovered at the murder scene were his.

Green particles of roofing shingle similar in color to that found around the Mller house were on Hillery’s boots, but his girlfriend’s house had a similar roof. The lining of one glove was made of red Orlon, and red fibers were found in the Miller house.

Much of the evidence, including Hillery’s car, was saved and now is subject to analysis by modern techniques.

This time, a scanning electron microscope fitted with special infrared and X-ray attachments will be used to produce graphs reflecting the organic content of the glove fibers, said sheriff’s Capt. O.R. ″Corky″ MacFarlane, who was present at Hillery’s arrest.

The object will be to ″either put the glove in the house or put the (physical evidence from the) house in Mr. Hillery’s car,″ Maline said.

Hillery testified at his first trial but will not feel compelled to this time because juries now are barred from taking that decision into account.

A judge also will decide how much the jury will learn of Hillery’s past.

″The whole dynamic of that delay will be different depending on how much information they have,″ said Rachel Moran, a law professor at the University of California at Berkeley’s Boalt Hall.

But the verdict could hinge on moral issues, she said.

″How long does someone remain subject to prosecution?″ Ms. Moran asked. ″That question cannot be answered through expertise of any variety. That’s a question we as a society have to answer as a matter of our personal values.″

If the state Supreme Court opinion of Hillery’s case in May 1965 is any indication, the new verdict may not change because the court found ″almost every aspect of defendant’s alibi was disproved by clear and abundant independent evidence.″

Larry Donaldson, assistant district attorney, has his mind made up.

″Twenty-four years is not enough time for murder, particularly if you’re sentenced to death,″ he said. ″The man should never get out again.″

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