Murder Case Is Being Appealed : Retired Judge Wants Martin Released

The retired judge investigating the murder conviction of insurance executive Herman Martin on behalf of the state Supreme Court recommended Friday that the one-time federal informant be freed from prison while his case is on appeal.

Gerald Brown, former presiding judge of the 4th District Court of Appeal, had ruled in August that Martin, 65, was wrongly convicted of masterminding the May, 1981, murder of La Jolla attorney Richard Crake.

Based on that finding, Brown advised the Supreme Court on Friday that Martin posed no risk of flight or danger to the community and should be released from prison, where he has been held since being found guilty in March, 1982. The high court appointed Brown as a fact-finder in the case last year.

Prosecutors, who harshly criticized Brown’s finding that Martin was innocent, objected strenuously Friday to the retired justice’s recommendation that he be freed.

“We feel the conviction itself is valid and remains valid until the Supreme Court says otherwise,� said Deputy Atty. Gen. Louis Hanoian. “And because there’s a valid conviction of murder, the man’s dangerous.�

Defense attorney Charles Sevilla said Martin and his family were ready to post the $250,000 bond proposed by Brown. Martin, a federally protected witness for his testimony against East Coast racketeers in the mid-1970s, is serving a term of 16 years to life at an undisclosed prison.

Brown’s recommendations are not binding on the high court, and both prosecution and defense lawyers said Friday it was unclear how the justices would next proceed.

Martin’s case--including Brown’s finding that his conviction was tainted by prosecutorial misconduct and the perjury of a key government witness--had been scheduled for arguments before the Supreme Court next week. But the court canceled all oral arguments after voters rejected retaining Chief Justice Rose Elizabeth Bird and Associate Justices Cruz Reynoso and Joseph Grodin in the Nov. 4 election.

Sevilla said he expects that it will be at least a year before a reconstituted Supreme Court rules on whether to overturn Martin’s conviction. Rather than keep Martin locked up in the meantime, he said he is hopeful that the court will quickly review Brown’s bail recommendation and agree to Martin’s release.

Hanoian, however, said he wants to present further arguments to the court before it acts on the bail issue, a step that could delay a decision for weeks. Prosecutors recommended that bond for Martin be set no lower than $1 million to assure that he would not flee if released.

Martin was convicted of arranging for Andrew Powell, an employee of his Sorrento Valley insurance company, to work over Crake to collect a $100,000 debt. When Crake resisted, Powell bludgeoned him to death with a gun.

Powell, an ex-Marine, pleaded guilty to second-degree murder and testified against Martin, saying his boss had given him the gun used in the killing. Crake and Martin had been locked in a court dispute over a business loan.

After six weeks of hearings, however, Brown concluded that Powell invented his testimony to avenge Martin’s failure to bail him out of jail after the killing, and to secure a lighter sentence. Powell is serving a term of 15 years to life in prison.

Brown also found that misconduct by San Diego County prosecutors denied Martin critical evidence he needed to establish his innocence and prove that Powell lied about the killing.

A key defense witness was arrested after he testified, discouraging other scheduled witnesses from appearing at trial. Potential defense witnesses also were deterred from testifying by threats that they would be prosecuted if they incriminated themselves, Brown said.

Dist. Atty. Edwin Miller and his assistants rejected the findings of misconduct; Miller termed Brown’s August conclusions “naive.�

Hanoian said Friday that Brown’s latest ruling is just as wrongheaded.

“We disagree with every finding he’s made so far, perhaps with the exception that Andrew Powell is not a nice person,� Hanoian said.