California law says he isn't a murderer. Prosecutors disagree

After nine years in jail awaiting trial, Neko Wilson was released when California changed its murder laws last fall. Photo / Max Whittaker, The New York Times

After California changed its murder laws last fall, Neko Wilson was the first man to walk free.

Wilson, 37, had been facing the death penalty for a 2009 robbery that led to the deaths of a couple in Fresno County. No one accused him of killing anyone, or even of being in the family's home that night, but prosecutors said that he helped plan the break-in.

At the time, that was enough for him to be charged with felony murder, under a doctrine that holds that anyone involved in a crime is responsible if a death occurs. But in September, the Legislature limited murder charges to people who actually killed, intended to kill or acted as a major player with "reckless indifference to human life."

So in October, Wilson left the Fresno County jail, where he had spent nine years awaiting trial, subsisting largely on beans and instant noodles. He found his new freedom "overwhelming — it was unfathomable," he said recently. "I could barely breathe when my fiancee tried to hug me."

That freedom may be short-lived. Prosecutors have moved to send Wilson back to jail, arguing that the new law that freed him violates California's Constitution and that freeing him was a mistake. A hearing was set for Thursday.

District attorneys around the state have launched similar challenges since prosecutors in Orange County successfully argued in February that the new murder law unconstitutionally clashes with anti-crime initiatives that voters approved in 1978 and 1990.

As prisoners around the state seek release, some judges have agreed with the constitutional argument, and others have rejected it, setting up a fight that is likely to end up in the state's highest court.

The cases are a sign of the broader pushback facing state lawmakers who have passed laws aimed at reducing the prison population and the cost of incarceration. After decades of tough-on-crime laws, California now leads the nation in shrinking the number of people behind bars, while crime remains near historic lows. But the trend has angered some prosecutors, who say lawmakers are risking public safety.

The revised felony murder law is the most recent and perhaps the most controversial change. More than a dozen people who were serving prison time for murder have been re sentenced and released. The first was Adnan Khan, who left San Quentin prison in January; as an 18-year-old he helped rob a marijuana dealer who was stabbed by Khan's accomplice. (Wilson got out earlier, but he had not been convicted.)

"The consequences and the backlash will come at the cost of innocent victims," said Michele Hanisee, president of the Association of Deputy District Attorneys for Los Angeles County. "We're literally talking about letting murderers go free."

The California District Attorneys Association, the statewide organisation for prosecutors, declined to comment. The Fresno County district attorney's office did not respond to multiple interview requests.

But court filings in Wilson's case and similar challenges say the new felony murder law improperly overrides the changes to the murder code passed in an era of soaring crime rates.

In 1978, voters approved a law aimed at turning "back the tide of violent crime" by increasing penalties for murder; in 1990, they approved one that expanded the number of crimes that qualify as first-degree murder. Although neither of those referendums dealt specifically with the felony murder rule, prosecutors now argue that it would take a new vote or two-thirds of the state Legislature to change the murder code.

State Senator Nancy Skinner, D-Berkeley, who wrote the new felony murder law, said she was careful to ensure that it didn't trigger constitutional problems. Wilson's case, she added, only highlighted why the legislation was needed.

"Our criminal justice laws are about public safety," she said. "Why would we want someone like that to be returned to jail?"

Skinner has said the felony murder rule was used disproportionately against women and young black and Latino men. The California Supreme Court has called it "barbaric."

Wilson's case began in summer 2009, when robbers broke into the home of Sandra and Gary DeBartolo in Kerman, a small town west of Fresno. In search of marijuana, the group killed the couple.

Prosecutors said Wilson helped plan the robbery.

Under the old felony murder rule, a person could be convicted of murder if they aided in a felony where a murder occurred, even if they didn't know about or participate in the killing.

The new law limits murder charges to a person who actually kills, intends to kill or is a major participant in the underlying crime. (There's an exception to the new law if the victim was a law enforcement officer.)

Wilson's brother, Jacque Wilson, a public defender in San Francisco, took the case and worked to get the law changed.

In jail, Neko Wilson said, he knew little of the political fight. He earned a paralegal degree and distracted himself by playing dominoes.

A few weeks after the governor at the time, Jerry Brown, signed the felony murder law, prosecutors agreed to a deal in which Wilson pleaded guilty to two counts of robbery. He had served longer in jail than the maximum sentence, so the judge released him.

The Wilson family celebrated with a trip to the coast, where Neko feasted on Alaskan king crab.

He settled into a routine. He found work as a manager at Best for Less Auto Sales, a small car dealership on a quiet, tree-lined street near downtown Modesto. He spent his days behind a desk, a phone earpiece ready for customers' calls. He traded his jailhouse clothes for polo shirts and jeans.

In March, he got word that prosecutors were asking to reinstate the murder charge.

Since then, Wilson said, "My life is on pause."

Written by: Abbie VanSickle
Photographs by: Max Whittaker

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