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SAN JOSE — A Santa Clara County judge on Friday rejected a proposed settlement between prosecutors and convicted murderer Erik Chatman that would have given parole eligibility to the man who once faced the death penalty for viciously stabbing Rosellina LoBue at a San Jose photo kiosk in 1987.
The deal was meant to resolve habeas corpus and Racial Justice Act petitions Chatman filed this year, alleging his trial was plagued by racial bias and misconduct.
While neither side disputed that Chatman killed LoBue — with his toddler son in tow — prosecutors moved to settle the case by petitioning the Superior Court to drop a special circumstance allegation of torture Chatman was convicted of in 1993. Under the agreement, Chatman, who was taken off death row last year as part of a landmark resentencing initiative by District Attorney Jeff Rosen, would have been resentenced to 25-years-to-life and made parole eligible.
LoBue’s surviving siblings balked at the proposal, saying they were assured last year by Rosen that taking Chatman off death row would still end with him dying in prison. After a Friday court hearing, in which Judge Eric Geffon said approving the agreement exceeded his authority under a 2022 law change, Tony LoBue and his sister Marie audibly exhaled.
“We feel that finally, the wheels of justice are starting to turn in our favor,” Tony LoBue said outside the courtroom. “I know this isn’t over. We will be fighting every step of the way.”
Chatman, now 60 and held in a state prison near Sacramento, filed petitions earlier this year — unrelated to his earlier resentencing — alleging that his legal defense was plagued by ineffective counsel, trial misconduct and racial bias; Chatman is half Black. The district attorney’s office settlement proposal sought to head off the challenges and risks of potentially re-trying Chatman, including having to rely on nearly 40-year-old investigative records and the practical effect that the passing of four decades has on witness availability.
Deputy District Attorney Alexandra Gadeberg told Geffon how the murder trial was rife with allusions to racial “stereotypes and tropes” that could arguably have appealed to the all-white jury’s racial prejudices, and could have substantiated violations under the Racial Justice Act of 2020. The South Bay-originated law offers legal relief for provable bias in arrests, convictions and sentences, and retroactively applies because Chatman’s case is considered active in light of his appeals.
Chatman’s petitions specifically targeted repeated references at trial about his crack cocaine addiction, including claims that the $500 he took from the cash register after stabbing LoBue 51 times at a Photo Drive-Up near downtown San Jose was spent on buying more of the drug to use with his wife and mother-in-law.
A violation of the RJA, Gadeberg further argued, would vacate the entire conviction — and the settlement preserved the first-degree murder conviction.
“There is pending litigation that that has raised colorable claims that the Racial Justice Act may have been violated during the trial in the early ’90s,” Gadeberg said in an interview before the decision Friday. “Based on the possible risks that come with all litigation, we are electing to resolve the pending litigation by way of a legal stipulation with defense counsel.”
Even if Chatman had been granted parole eligibility under the deal, Gadeberg noted that his freedom was no sure thing since he still would have to prove to a parole board that he had rehabilitated to a point where he was longer a public danger. James McManis, a longtime South Bay attorney who appeared in court on behalf of the LoBue family, argued that Chatman would have eventually been freed if Geffon approved the settlement.
Chatman admitted to stabbing Rosellina LoBue, who was 18 and worked with his then-wife at a Photo Drive-Up in San Jose, on Oct. 7, 1987, reportedly after a strained conversation about his personal life. She was stabbed 51 times; authorities said Chatman’s two-and-half-year-old son was on hand when the deadly attack occurred.
Chatman was arrested in 1990 in Houston after being linked to the killing. Later trial testimony established that after the killing, Chatman was seen back home in East Palo Alto with his young son in a bathtub, both of them washing off blood from their bodies.
Before and at Friday’s hearing, McManis argued that the district attorney’s office did not have the legal or “interest of justice” grounds to further change Chatman’s sentence.
Geffon ultimately sided with McManis and the LoBue family, but cited different legal reasoning, contending that what the prosecution and Chatman’s attorneys were asking for was essentially a pre-conviction plea deal that was mismatched with the current post-conviction status of the case. He added that the racial bias claims were still unproven allegations and granting the petition would be an “extraordinary” use of his power.
“The request to recall the defendant and sentence is denied,” Geffon concluded.
After the hearing, McManis said the judge “listened very carefully, heard all the parties and I think made the correct decision.”
The district attorney’s office also addressed the ruling, saying in a statement, “The court’s ruling today provides an alternative path for our office to achieve justice by preserving the defendant’s first-degree murder conviction and keeping him in prison where he has remained for the last 35 years.”
Chatman was removed from death row last year as part of a policy initiative by Rosen to resentence Santa Clara County’s condemned men to life-without-parole terms. The policy was borne from Rosen’s determination that the death penalty was unjust and that pursuing death penalty cases was impractical given a state moratorium on capital punishment and the literal dismantling of the physical death row at at San Quentin State Prison.
Eleven men were resentenced under the initiative, while a handful declined Rosen’s resentencing offer in order to preserve their appellate rights. One man, Richard Wade Farley, was denied resentencing relief after a judge determined he had not expressed remorse or shown sufficient rehabilitation following his conviction for the infamous 1988 ESL mass shooting in Sunnyvale.
Tony LoBue, his sister Marie, and other groups of surviving relatives and loved ones galvanized over their opposition to Rosen and their desire to leave the death sentences undisturbed.
“If he thinks we’re stopping here, we’re going to keep going,” Tony LoBue said. “We’re going to keep fighting him with everything we have … and we’re not the only ones.”
Originally published at Robert Salonga