Smith also said he didn't see O'Connell during the fight. O'Connell received probation for his role in the fight, leaving Moreno and Pacheco to stand trial for the death of their friend. A jury convicted the pair in 1998 of murdering English. But Healy and Newman asked for a new trial, after allegations of jury misconduct arose. Dating back to the 1960s, the provocative act is applied in situations where the defendant was neither the actual killer nor an accomplice of the killer - in other words, a situation in which the killer was an intended victim or a police officer.
Defense attorneys take issue with use of the theory.
This is like giving a Mafia guy a nasty look and he takes revenge by killing your grandmother. Solano County District Attorney David Paulson supports the use of the provocative act in this case. The initial trial inspired a letter-writing campaign on behalf of Moreno and Pacheco. Now, as the second trial gets under way, human rights groups have taken a keener interest. As jurors filed out of the courtroom for lunch and breaks, Jones praised the defendants and their families for what he called courage in facing injustices.