Wednesday, December 18, 2002
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Court of Appeal Overturns Ruling That Alleged Drug Trafficker Who Disappeared Is Dead
By a MetNews Staff Writer
A Contra Costa Superior Court judge erred in ruling that an alleged drug trafficker who disappeared in 1989 while under house arrest is legally dead, the First District Court of Appeal ruled yesterday.
A divided panel in Div. Four said that Barry Starr’s reluctance to face charges that were likely to result in a sentence of more than 20 years in prison “satisfactorily explained” his disappearance and precludes application of the statutory presumption of death.
Barry Starr, a chemical engineer who attended MIT and the University of California, was arrested in May 1988 after a raid on the family home in Orinda uncovered $80,000 and 10 pounds of methamphetamine, according to police, who also found what they said was the most elaborate drug laboratory they had seen in Contra Costa County.
He posted $150,000 bail on the state charges, but was indicted by a federal grand jury in February 1989 and placed on electronically monitored house arrest. He was supposed to post bail on the federal charges in June 1989—the state bond expired—but a week before he was to do so, he broke free of his monitoring bracelet, left home, and sent letters to his wife, children, and parents indicating that he was depressed because his lawyer had indicated that his prospects in court were bleak and felt guilty about the affect of his legal troubles on the family.
The letter to his wife included the statements “I deserve to die” and that “the only honorable solution is to kill myself.”
Starr left on a Friday night. Prosecutors said the electronic monitoring company did not notify authorities until the following Monday, by which time Starr had left his car at Oakland Airport and departed for points unknown.
Starr’s wife soon filed for and obtained a divorce. She later pled guilty to aiding and abetting her husband’s drug operation and agreed to forfeit the house, along with cash and investments.
She had the couple’s children, who were ages 6 and 10 when they last saw their father, petitioned the court fin August 2000 or an order establishing his death under Probate Code Sec. 12401. The statute provides that “a person who has not been seen or heard from for a continuous period of five years by those who are likely to have seen or heard from that person, and whose absence is not satisfactorily explained, after diligent search or inquiry, is presumed to be dead. The person’s death is presumed to have occurred at the end of the period unless there is sufficient evidence to establish that death occurred earlier.”
Old Line Life Insurance Company of North America, which had issued a $500,000 policy on Starr’s life, argued that his status as a fugitive precluded application of Sec. 12401.
Judge Walter D. Rogers concluded that Starr was presumed dead as of June 9, 1994, five years after he disappeared. The facts that Starr had not contacted his family since the night he left, was deeply depressed at the time, did not take his medication or breathing devices—Starr was asthmatic—with him and was not shown to have subsequently renewed his prescription or engaged in other activity indicating that he was alive, and that he left without cash, credit cards, clothing, luggage, or passport all suggested that he was dead, the judge said.
But Presiding Justice Laurence D. Kay, writing for the Court of Appeal, said Rogers erred in applying the preponderance test in order to determine the application of the presumption. “The question with respect to the presumption is whether the missing person’s absence is capable of a satisfactory explanation other than by death—not whether death is the most satisfactory explanation for the absence,” the presiding justice wrote.
Given the existence of a satisfactory explanation for Starr’s absence, Kay explained, the presumption does not apply and the petitioners must prove on remand, by preponderance of the evidence, that Starr is in fact dead.
Justice Patricia Sepulveda, dissenting, argued that the majority was reweighing the evidence and that the trial judge’s decision should be upheld because there was substantial evidence that the presumption of death applied.
The case is In re Starr, A097688.
Copyright 2002, Metropolitan News Company