Downtown murderer loses his conviction appeal

Court rules unanimously against Otto Koloto challenge to his life sentence

A man who was convicted of first-degree murder and robbery for a downtown slaying outside Palo Alto City Hall in 2008 lost his appeal in California State Appellate Court on Tuesday (Nov. 22).

Otto Emil Koloto, a Gilroy resident, was convicted in March 2010 for the July 12, 2008, murder of Philip Lacy during a robbery, in which he had demanded Lacy's gold chain and diamond-studded crucifix. He was sentenced to life in prison without the possibility of parole for the murder, plus five years for the robbery. The robbery sentence was stayed.

In his appeal Koloto argued a juror had engaged in misconduct and was compromised. The trial court also erroneously instructed the jury, his defense said. But the appellate judges ruled unanimously against the arguments.

Juror No. 3 admitted to the trial court that he spoke with a forensics expert witness during a recess because both were from the same country. The juror said he told the expert he was impressed that anyone could work in forensics, and they discussed neonatal and stem-cell biology and plants. The juror said the interaction had no effect on his ability to be fair and impartial. The trial judge agreed, and the juror remained on the jury.

The appeals court unanimously ruled against Koloto, saying there was no dispute that the juror committed misconduct but that the subject matter did not involve information before the jury or Koloto's guilt or innocence. No presumption of prejudice arose from the conversation, the court said.

Koloto also argued that the trial judge erred when he told jurors that although they all had to agree Koloto committed murder under one of two theories, they did not all need to agree on the same theory. Defense attorneys said the judge's instructions were misleading because only one theory supported first-degree murder and the other supported second-degree murder.

But the appeals court disagreed and found there was no error or likelihood that the jury misunderstood the instruction.

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Posted by Hmmm
a resident of East Palo Alto
on Nov 22, 2011 at 7:25 pm

Good, he needs to stay in prison.

Like this comment
Posted by Anon.
a resident of Crescent Park
on Nov 22, 2011 at 9:04 pm

Having just seen the movie "Into The Abyss" I do not have a lot of sympathy for murderers, especially people who murder in the commission of another crime. It's popular to be against the ultimate penalty, but in this case it is clear they have the right guy and he is guilty. There is no rhyme or reason for this kind of evil cold crime and though I understand and even agree with much of the viewpoint of the anti-capital punishment folks, to me this guy could go either way. Some day people will forget and possibly in a mistaken attempt at mercy he could make it out while his victim ... and one wonders if Lacy was his only victim ... is gone for good.

Like this comment
Posted by Nayeli
a resident of Midtown
on Nov 22, 2011 at 10:49 pm

This thug was cold-hearted! He shot a man in the forehead for no other reason than to steal his necklace and a crucifix.

Forgive me for not being politically correct, but I think that prison is too good for this monster.

Like this comment
Posted by A Noun Ea Mus
a resident of Professorville
on Nov 23, 2011 at 4:52 am

All points taken...but if you were his defense attorney you would be derelict in your duty if you didn't appeal.

A juror did talk with a witness. And then there is the "two theories" aspect. Not that I necessarily think that the appeal should have been upheld....just that the process is working itself through.

So go ahead and vent...but do you really want to just forgo trials and string him up?

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Posted by Hulkamania
a resident of Duveneck/St. Francis
on Nov 23, 2011 at 5:40 am

It's all about the lawyer getting his billable hours. Win, lose, or draw, he still gets paid.

Like this comment
Posted by daniel
a resident of Embarcadero Oaks/Leland
on Nov 23, 2011 at 7:27 am

Life without the possibility of parole is a fate much worse than death so this murderer got what he deserved.

Like this comment
Posted by Concerned Retiree
a resident of Midtown
on Nov 23, 2011 at 10:38 am

It is too bad that we must cage this man for the rest of his life. Funds for his upkeep could be far better spent on education and rehabilitation of others within and without of our prison system.

It is unfortunate that we are so reluctant to execute people for crimes like this.

Like this comment
Posted by Anon.
a resident of Crescent Park
on Nov 23, 2011 at 10:52 am

> Life without the possibility of parole is a fate much worse than death so this murderer got what he deserved.

This is an odd statement that people do not really think about.

First ... what is the idea about the punishment being "worse" and what does worse mean? Would torture be worse? We routinely hear and see in the media people talking about prisoners getting raped and beaten up, like there is torture and it officially sanctioned but people look the other way because it is done by the other prisoners. This is just torture under another name, and in the US we are not supposed to allow cruel or unusual punishment, which is what that would be. If there is violence and rape in prison there should not be and those responsible should be punished, after all if you make one prisoner the target of this abuse, another prisoner who enjoys violence and rape would be getting rewarded. It makes no sense.

Second, a real life in prison sentence would include a death penalty, since the prisoner would die in prison. If you are going to keep someone alive you have to care for their human needs, and that means not to torture them, which long sentences in prison are, especially in solitary confinement. This is a bad business for the state to be in.

I liken some prisoners to storing radioactive waste ... the half-life is much less, but the danger is much worse compared to radioactive waste. If they are alive there is a chance however small that they will be the recipient at some misguided attempt at mercy and let out. Even if they do not commit anymore crimes, can you imagine how it would be for the many families and family members of say someone like Kenneth Bianchi, the Hillside Strangler to have to endure that and think about it. Why torture those people?

There are certain things people can do that dispassionately makes them monsters, and this guy is on the fence in my mind, since there is no doubt he did the crime, he killed someone while committing a crime. Whatever he says about his intent or trying to make some legalistic differentiation over something that cannot really be known should only matter under certain circumstances.

I'm not a lawyer by the way, but the idea that a defence attorney can say that a burglar who shoots someone in the commission of this crime didn't mean to and it was an accident, so there was no intent to kill and it is manslaughter or a lesser crime is an absurd trick, that probably only gets used effectively by those with money - that kind of thing is what makes the death penalty so problematic. That and things like whipping up the public and then charging someone like Scott Peterson with a double killing are just for public consumption to make someone look like they are better at their job than they really are.

In cases like this the objective should be to keep this person away from other people and unable to hurt people. I do agree that if we cannot be fair and sensible about the death penalty it probably is not right to use it. But still, some of these criminals are an offense to the Earth and all of us while they live.

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Posted by Nayeli
a resident of Midtown
on Nov 23, 2011 at 1:16 pm

I am rethinking my previous opposition to capital punishment.

An admitted or obvious murderer who gets life in prison usually gets to die on his own terms. However, the victims have had their lives STOLEN from them.

I still think that prison is too good for this monster. I am beginning to think that the state should have the option of "ultimate justice" for convicted 1st degree murderer who either admitted to such violent crimes or where his motive/guilt is obvious.

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Posted by daniel
a resident of Embarcadero Oaks/Leland
on Nov 23, 2011 at 1:57 pm

Executing someone who can't defend himself, regardless of how heinous the crime he/she committed is still murder and the state should not be in the business of committing murders. An enemy soldier who just shot your comrade in the back while pretending to surrender is still not executed, he is captured and treated according to the Geneva Convention. When the state executes a defenseless person, even a murderer, it's no better than the murderer, that's why civilized societies have done away with the death penalty. The Israelis didn't execute captured Palestinian terrorists who massacred entire kindergartens in border towns.
US prisons are by far the worse and most violent in the civilized world(assuming the US qualifies as a civilized country which is becoming progressively doubtful), so this guy will spend the rest of his life in real hell.

Like this comment
Posted by Nayeli
a resident of Midtown
on Nov 23, 2011 at 2:16 pm

@ daniel:

So, are you effectively saying that our nation's prisons are so uncivilized and that they need to be improved for the well-being of all of those convicted violent murderers and rapists?

Like this comment
Posted by Nayeli
a resident of Midtown
on Nov 23, 2011 at 2:29 pm

@ daniel:

Besides, the argument that capital punishment makes society "no better than the murderer" is just plain silly.

They aren't purposely murdering INNOCENT individuals out of a murderous desire to pillage the victim's body or property. They are acting on behalf of JUSTICE.

In fact, it would be proper to use your same argument against capital punishment about imprisonment. Imprisoning innocent Americans is wrong, correct? So, we could apply your argument to the concept of imprisonment: "When the state imprisons a defenseless person, even a murderer, it's no better than the murderer."

Do you see the flaw in your argument?

This isn't about what it means to be "civilized." Obviously, the murderer and rapist operated in a completely "uncivilized" manner.

By removing the equivalent penalty for that heinous crime, you are making it so that only violent criminals have an ability to take someone's life...and the families of their victims can only hope that the murderers don't live comfortably behind bars for the next 70-100 years.

Yet, oddly enough, those same individuals arguing against equivalent "ultimate" punishment are the same ones arguing for prisons to be improved so that the convicts live more "civilized" lives behind bars. So, it is a win-win situation for those criminals if such "reformists" had their way.

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Posted by David
a resident of College Terrace
on Nov 23, 2011 at 3:27 pm

@ daniel and everyone else against the Death Penalty

So in other words, you’re ok with having your tax money spent on keeping this dirt bag alive? I’m not. I say shoot him with a firing squad and move on.

Like this comment
Posted by daniel
a resident of Embarcadero Oaks/Leland
on Nov 23, 2011 at 3:38 pm

So, according to your logic, if you had a relative, how about a son, or a brother, who ended up in prison for a crime he didn't commit, because he couldn't afford a good, but expensive lawyer(happens much more often that you would imagine, he deserves to get gang raped and brutalized for the next 30-40 years? I can guess which party and party candidates you tend to vote for and it seems like you need to hit the books real hard to get an even basic idea what a democratic and civil state is all about. A civil society punishes criminals, it doesn't enable sadism against them, a mentality that is the domain of countries like Saudi Arabia, Syria, Uganda and their likes. I knew a young man who was convicted in 1981 of killing his apartment manager and sentenced to 25 to life in a rough California prison. After 15 years in prison he was exonerated as a result of DNA and sloppy p[police investigation*happens all the time). The real killer was the victims brother-in-law. But you are fine with the hell he had to endure in prison.

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Posted by Nayeli
a resident of Midtown
on Nov 23, 2011 at 4:10 pm

@ daniel:

As I said before, I would reserve the death penalty for ADMITTED murderers or for those of which there is NO DOUBT of their guilt.

Besides, you are pretty much saying that the prisons need to be more "civilized" for individuals who have acted as savages. For every wrongful conviction, that are 99.9% who are in prison because their actions warranted it.

As for reform: I don't think that all prisoners should be lumped together. I have long believed that the conditions should reflect the crime. Murderers and violent rapists shouldn't enjoy ANY benefits. They should literally live in solitude as they live off of bologna and oatmeal for a lifetime.

Career thieves should live in cells with NOTHING. They should have NOTHING during their prison sentence other than a mattress, blanket and clothing.

Non-violent criminals -- or those who will soon be released back into society -- should have somewhat better living conditions and "reintegration" programs.

Non-violent prisoners should be the ONLY ones allowed to "earn" privileges (like TV time).

Of course, I may seem "harsh" in this. However, you are completely incorrect about your assessment of US prisons as a comparison with others. We live in a society with a high crime rate for a reason. One of those factors is because people just aren't scared of the consequences of their actions (e.g. prisons).

For prisons to be effective, criminals need to FEAR going to those places.

Like this comment
Posted by Helen
a resident of Crescent Park
on Nov 23, 2011 at 10:42 pm

Death penalty is the only answer. Someone kills someone....they must die. Eye for an eye. This will solve the prison overcrowding and waste if our tax dollars. Happy Thanksgiving to all. Peace out.

Like this comment
Posted by daniel
a resident of Embarcadero Oaks/Leland
on Nov 24, 2011 at 8:22 am

US prison are incredibly violent compared to prisons in other democratic countries. As a matter of fact they are not much better than medieval torture chambers. One would think that would deter people from committing crimes, yet we live in a country with very high rates of crime. In reality, people who commit crimes don't think of the consequences, that's why the prospect of the death penalty has been proven to be a non-deterrent for criminals.
In 2008 and 2009, 88,500 adults held in jails and prisons reported being sexually assaulted. The rates of exploitation of juveniles is even higher, one in eight will be victimized during their incarceration. Those are numbers that ought to give rise to mass protest around the nation.

American journalists will go all the way to Africa to report on sexual assault when they are able to inform the world on the same subject without ever leaving home. Rape in the Congo or Haiti are viewed as a kind of strange pornography, allowing Americans to see themselves as superior, and others, usually black people, as inferior and inhuman. The high rate of sexual assaults in prison are yet another example of Americans' willful ignorance of anything which might prove their nation to be criminal in its actions. America drops bombs, invades and occupies, and legalizes torture, yet other peoples are labeled as uncivilized and the criminal enablers see themselves as good and superior.

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