Judge’s Skepticism Over Death Penalty Marks Unusual Murder Trial

In one of Orange County’s more unusual murder trials, a former Anaheim resident could go to the gas chamber if he is convicted of helping to kill a longtime friend and dumping his body into the ocean from an airplane.

While Larry Cowell’s trial proceeds in Orange County Superior Court, he is free on bail, an almost unheard of situation when prosecutors seek the death penalty. The defendant comes to court arm-in-arm with a girlfriend and chats with the bailiff and court clerk during recesses.

Also, Cowell--by his own choice--is not being tried before a jury, which is rare in death penalty cases.

But perhaps most unusual, Superior Court Judge Donald A. McCartin, who will decide the 37-year-old man’s fate, has already told attorneys he doesn’t believe the case merits a death verdict.

None of these factors appear to be bothering Deputy Dist. Atty. Tom Avdeef, who pledged that he will continue to argue “down to the end� that Cowell should get the death penalty for the murder of Scott Campbell, 27, of Anaheim.

Body Never Found

Cowell, formerly of Anaheim, is accused along with co-defendant Donald DiMascio of killing Campbell on April 17, 1982, in order to steal a pound of cocaine that Campbell was about to sell to a man in North Dakota. Campbell’s body was never found.

Murder during the commission of a robbery and for financial gain are the so-called “special circumstances� the prosecution has alleged in order to seek a death verdict.

DiMascio, 35, who is in the Orange County Jail awaiting a separate trial, also faces a possible death penalty.

Cowell’s case took a surprising turn during pretrial motions when McCartin said he did not think that Cowell’s case merited a death penalty. Armed with this information, Greg Jones and Jerry Reopelle, Cowell’s attorneys, advised him to waive a jury trial and let McCartin decide the case. Although jurors had already been selected, Cowell agreed on Nov. 20 to let McCartin decide the case, and the jurors were dismissed.

“We would much rather take our chances in front of a jury,� Jones said. “But with those special circumstances hanging over our head, we just couldn’t. We’re confident that the judge is going to stick to what he said about this not being a death penalty case.�

Concern Over Death Penalty

Avdeef said McCartin had two concerns about the appropriateness of the death penalty in Cowell’s case.

First, McCartin questioned whether the prosecution could prove the special circumstances beyond a reasonable doubt. There is evidence, for example, that Cowell and DiMascio were seeking revenge against Campbell for previous drug-sale disagreements, according to police reports.

Second, McCartin questioned whether Cowell, who has no background of major crimes, would be a candidate for the death penalty. In California, convicted murderers can only be given a death verdict if the severity of the crime or their past record warrants such a sentence.

Avdeef conceded that McCartin’s pretrial statements make his job more difficult, but he added: “When the judge said those things, he had not seen our whole case laid out. We’re still going on the assumption that we can get a death verdict after we present our case.�

Most Dramatic Moment

Testimony in the Cowell trial has gone on for two weeks and is expected to last at least another two weeks.

The most dramatic moment came last week, when Avdeef played in court a tape from Campbell’s telephone answering machine, with messages covering the days after Campbell disappeared. The most persistent caller was Greg Fox--a federal drug enforcement informant posing as a prospective cocaine buyer. Fox angrily accused Campbell of ruining a business deal.

Without the evidence of such calls, Cowell might never have been brought to trial.

Campbell had told his parents he was flying to North Dakota in conjunction with his computer consultancy business. According to police reports, however, Campbell was flying to North Dakota to sell a pound of cocaine to Fox, who had already made a small drug buy.

After Campbell disappeared, Anaheim police investigators gained access to his telephone tapes and contacted Fox in North Dakota. After learning Fox’s true identity, they persuaded him to come to California and help them in the Campbell case.

Asked Employee to Lie

Meanwhile, Anaheim police began to view Cowell as a suspect in his longtime friend’s disappearance. The day Campbell disappeared, for example, Cowell rented an airplane from General Aviation at Fullerton Airport, the police learned. Police grew suspicious when a General Aviation employee told them--and testified last week--that Cowell had asked him to lie, if asked, and say that the two men had flown the plane to Carlsbad to pick up some auto parts for Cowell’s business.

Fox, with the Anaheim police watching every move, met with Cowell a year after the disappearance. The informant told Cowell that he had approached him because Campbell had previously referred to Cowell as a business partner. Fox said the people he worked for didn’t mind losing the pound of cocaine that Campbell had not delivered, but were upset that Campbell had in his possession an important phone number that might fall into the wrong hands.

In several conversations between Fox and DiMascio and Fox and Cowell--all taped by police--the two men admitted they had killed Campbell. Cowell allegedly piloted the plane while DiMascio grabbed Campbell from behind and strangled him. Both men told Fox they dumped Campbell’s body near Catalina Island.

Taped Admissions

The taped admissions are the heart of Avdeef’s case. McCartin, after lengthy pretrial arguments, has allowed them to be used as evidence, despite defense arguments that Fox coerced Cowell into making incriminating statements.

Jones and Reopelle won’t reveal anything about their defense plans, except to say that they will prove Cowell innocent.

Meanwhile, Cowell’s parents, who live in Arizona, posted a $25,000 property bond to cover his $250,000 bail.

Under state law, defendants in death penalty cases are supposed to be held without bail. But the district attorney’s office inadvertently failed to get Cowell’s $250,000 bail status changed when the special circumstances were added to the case.

Campbell’s parents, Gary and Collene Campbell of San Juan Capistrano, led a community petition drive to have Superior Court Judge James O. Perez revoke Cowell’s bail. Perez did so, but after the 4th District Court of Appeal ordered Perez to hold another hearing on the matter, the judge decided to maintain Cowell’s bail status.

Avdeef has vehemently protested Cowell’s being free. But the defendant’s attorneys said Cowell has no intention of running. The defendant knows he faces a possible lengthy prison sentence, they said, and “is extremely nervous about what’s going to happen.�

“But he’s going to show up. He wants to see this thing through,� Reopelle said.