Peterson charges mirror '81 trial

September 13, 2003 

His wife was pregnant with their first baby, and he was having an affair. He killed her, and their unborn child.

Jurors sent the unrepentant, 30-year-old husband to death row in what eventually was recognized as California's first test case of its fetal murder law.

Twenty-two years later, prosecutors are using the same law to seek the death penalty for Modesto's Scott Peterson, 30, if he is convicted in the slayings of his pregnant wife, Laci, and their unborn son, Conner.

People vs. Bunyard generated little media interest when that grisly 1981 case was tried in Stockton.

"It's unfair to those who don't get the publicity," said Douglas Jacobsen, a Stockton attorney who represented Jerry Bunyard then. "It's like they're less worthy or something."

Bunyard's wife of three years, Elaine, a nurse's aide in Manteca, was days shy of delivering their baby girl in 1979. In anticipation of a stay in the maternity ward, she had packed a bag and kept it by the front door.

But Jerry Bunyard wasn't as excited. The good-looking, well- spoken carpenter had been carrying on with a Tracy woman and thought his wife would "take him for everything he had" if he divorced her, a witness said.

Enter Earlin Popham, a biker-type boyhood friend who had been helping the Bunyards build a home in Patterson. When Elaine Bunyard was alone in the kitchen, Popham broke an iron skillet on her skull. He then shot her in the head with a shotgun and tried to make the crime look like both a robbery and a suicide.

Popham later testified that his buddy had promised him $1,000 to kill Elaine Bunyard. Popham received a sentence of 25 years to life in exchange for his testimony against Bunyard.

California law requires special circumstances for a death sentence. They include multiple murder and murder for hire.

Murder-for-hire prosecution parameters still were evolving, so Stockton prosecutors chose to go after Bunyard for multiple murder. A 1970 law -- which resulted from the prosecution of a Stockton man who had killed his ex-wife's fetus -- makes no differentiation between children who are born and those who aren't.

Jacobsen doesn't recall any significance attached to the Bunyard trial as a test case for the fetal murder law. He does recall that prosecutors played up evidence that Elaine Bunyard struggled mightily against her attacker, as if "fighting to stay alive for her unborn child."

William Murray, who prosecuted the case, now is a San Joaquin County Superior Court judge and recently was appointed to the prestigious California Judicial Council.

Murray refrained from commenting on the Bunyard case, citing its pending status before the Supreme Court. Death sentences are considered on appeal until carried out.

The case was among the first the California Supreme Court considered under the fetal murder law. In a 1988 appellate ruling, Justice John Arguelles cited "the unique relationship between a pregnant woman and her unborn fetus" in rejecting Bunyard's claim that no one intended to kill the unborn child.

Arguelles cited "the Legislature's determination that viable fetuses receive the same protection under the murder statute."

Bunyard also had claimed that a death sentence for killing an unborn child was tantamount to cruel and unusual punishment, noting that at the time, only four states allowed death for such a crime. The state Supreme Court rejected those contentions as well.

The same court since has upheld similar sentences, including the 1984 Halloween slayings of a San Jose woman and her unborn child by her former husband.

Closer to home, Gilberto Cano of Modesto faces the death penalty if convicted of killing his 6 1/2-months- pregnant girlfriend, Martha Moreno, and their unborn child in April 2002. A trial is scheduled to begin Jan. 26.

The attorneys in the Cano case are defense lawyer Kirk McAllister and prosecutor Rick Distaso -- both of whom are involved in the Peterson case.

In San Mateo County, a trial for a man accused of killing his wife, who was seven months pregnant, their unborn child and another daughter is expected to be scheduled next month. Authorities say Eddie Rapoza drove his family minivan off a cliff a year ago and have charged him with three murders.

As for the Bunyard case, his lawyer says similarities with the Peterson case aren't lost on him -- but seem to be lost on everyone else.

"I would guarantee you, since Laci disappeared, probably 20 other women have disappeared in California, and you haven't heard about one of them," Jacobsen said. "Some cases grab the imagination of the public. Some don't."

Bee staff writer Garth Stapley can be reached at 578-2390 or gstapley@modbee.com.

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