By Ankita Joshi
WOODLAND, CA – Kenneth Ray Buffer, convicted of murder in 1995, was denied parole on March 12, 2016, and he’s now appealing that decision here in Yolo County Superior Court.
Private defense attorney Rob Gorman filed a response Jan. 25 of this year to the prosecutor’s denial of Buffer’s petition to appeal for eligibility for release.
In 1995, Buffer and his codefendant beat and tortured the victim over a debt. Buffer drove the victim to a public apartment complex in West Sacramento and left him there. Days later, the victim died in the hospital. Since 1995, Buffer has been serving a sentence of 25 years to life.
As the hearing began Wednesday, Judge Stephen L. Mock gave an overview of the materials and petitions that were given to him by both the defense and prosecution. He said he is “constrained in [his] ruling in that 52 page opinion,” which was provided by the appellate court. 
After laying down this premise, the hearing proceeded with addressing the three main arguments given by the prosecution against Buffer’s eligibility for release.
The first argument presented was that the defendant needs substantial evidence to prove he is entitled to relief. Judge Mock commented that this had been “unavailing in the past.”
The second argument, which made up the majority of the hearing, was the question over how to determine whether Buffer was the “actual killer,” as asserted by Chief Deputy District Attorney Melinda Aiello.
Aiello contended that the “issue comes down to malice.” Based on the “factual summary as well as Mr. Buffers own admission as to his conduct, malice is demonstrated as expressed, as well as implied,” Aiello said.
Some of the behavior that Aiello outlined as malice included Buffer’s participation and awareness of the “hours long beat down” of the victim, as well as his conduct in leaving the victim on the side of the road.
She finalized this argument by stating, “At the very least, implied malice has been shown by his own participation and conduct, if not expressed malice by his own behavior.”
Judge Mock then turned to clarifying the term: “actual killer.” Based on the definition provided by the prosecution, “actual killer” for this case was defined as “someone involved in the death that has requisite malice.”
To which Aiello responded, “The petitioner rises above the level of aider and abettor in that he is a direct perpetrator in that he is the actual killer.” The premise of her main argument was that Buffer’s involvement in the crime is a “demonstration of his own malice.”
When it was Gorman’s turn to respond, he turned towards the trial and the appellate record, both which never specified who the actual killer is.
“Ms. Aiello appears to say that because Mr. Buffer was at least an aider and abettor, he was a direct perpetrator and because of the direct perpetrator, he’s the actual killer. She’s trying to ratchet up ‘actual killer’ from information or evidence that doesn’t have anything to do with making Mr. Buffer the actual killer,” argued Gorman.
This line of reasoning was continued on the subject of malice as Gorman defined expressed malice or implied malice as dealing with the “perpetrators held belief at the time the crime is occurring.”
Gorman contended that since the prosecution used Buffer’s action of driving and leaving the victim on the side of the road as the basis for malice, malice cannot be proven in this case because malice needs to be proven during “the time the torture is occurring or at the time the beating is occurring, not where they left him.”
“It’s clear from the jury instruction, that Mr. Buffer never harbored any intent to kill Mr. Williams. To say at this point that Mr. Buffer is the actual killer is not supported by the record the court has in front of them,” concluded Gorman.
The only response to this argument by Aiello was that the defense cannot prove that there wasn’t an intent to kill just because voluntary manslaughter convictions were not given.
The third and “most troubling” argument presented by the prosecution was Buffer’s conviction of murder by torture.
Judge Mock outlined the premises which the jury had to qualify to find Buffer guilty which included the defendant acting in a way that involved a high probability of victim’s death and a deliberate premeditated intent to inflict pain.
After outlining these premises, Judge Mock addressed Gorman and stated, “Specifics of having to have malice is not an issue requiring an evidentiary hearing…there’s been a finding of that.”
Gorman responded that the murder had operated “under the ecosystem of aiding and abetting. The crime of murder was a natural and probable consequence of the crime of torture.”
Judge Mock remained unconvinced due to the jury finding Buffer and his codefendant both guilty of torture.
Undeterred, Gorman continued to explain that the jury instructions were clear including that “the death was a natural and probable cause of the torture.” All of this revolving around an “interlocking web of … conspiracy instruction and aiding and abetting instruction.”
Regardless of Gorman’s adamance, Aiello restated her position by contending that the response from the jury was very clear, and due to those elements she didn’t think “Buffer is even eligible to bring forth this petition.”
As deliberations between the prosecution and defense continued, the issue of the lack of case law present for murder by torture came up. Aiello had no appellate case of torture by murder or torture specifically cited in her brief.
Judge Mock ended these deliberations by requesting a supplemental brief on the question of whether SB1437 makes an exception for determining the “actual killer” when the murder is a result of torture.
The case was continued.
Ankita Joshi is a second-year student at the University of San Francisco, pursuing a major in International Studies and a minor in Political Science. She is originally from Sacramento, CA.
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