Call off Killing Season; Put Executions on Hold

November 21, 2005 by Natasha Minsker, The Daily Journal

Picture this: It's 1979, you're 21 and you've just been charged with capital murder. Worse, the team assigned to keep you from the execution chamber doesn't seem to know what it's doing. Your court-appointed attorney has never tried a death penalty case nor been trained to handle one. Your expert witness and the judge are winging it too.

Welcome to California's death penalty laboratory. You have been selected as one of the guinea pigs. It may sound like a bad plot line for the next Fox TV series, but it's a frightening reality for many today on California's death row who now face imminent execution.

Indeed, San Quentin's execution chamber is gearing up for prime time. Barring any gubernatorial pardons or last-minute reprieves, lethal injections could begin as early as Dec. 13. That's the date chosen for the execution of 51-year-old Stanley Tookie Williams, founder of the Crips street gang and Nobel Peace Prize nominee for his redemptive efforts to steer kids away from violence.

Next on the list is Clarence Ray Allen, a 75-year-old Fresno man convicted in 1982 of instigating a triple murder. His appointment with the execution chamber is set for Jan. 17.

And Michael Morales, 45, convicted of raping and killing a teenager in 1981, is likely to get a date with death in February.

As prosecutors, defense lawyers and judges, it's incumbent on us to ask how executing these guinea pigs will reflect on our criminal justice system given that they were all tried at a time when death penalty cases were riddled with incompetence, flaws and disparities.

A lot has changed in the 28 eight years since California reinstated the death penalty, about the people of California, about the law, and about these men. In fact, so much has changed that it's hard if not impossible to trust the verdicts in these cases.

These and other concerns spurred the creation of a bipartisan commission to investigate the problems of wrongful convictions and wrongful executions in this state. The California Moratorium on Executions Act, AB 1121, calls for a temporary suspension of lethal injections while the California Commission on the Fair Administration of Justice does its work. Executions would resume on Jan. 1, 2009. The bill would not preclude prosecutors from seeking death sentences, nor would it prevent juries or judges from imposing death sentences. It would simply allow for a thorough investigation to prevent the death of innocents.

Should California be carrying out any executions while the legislatively mandated Justice Commission examines flaws in our death penalty system and our criminal justice system in general? There's a lot of ground to cover.

Take, for example, the issue of racial bias in jury selection. In 1986, the U.S. Supreme Court issued the seminal opinion of Batson v. Kentucky, holding that racial bias in jury selection violates the Constitution. More than half of the attorneys currently practicing in California were admitted to the bar after the Batson decision. By now, Batson is a well-established, even dog-eared precedent. It is difficult for many of us who have tried criminal cases to imagine a day when racial bias in jury selection was not hotly contested.

Yet, in the three aforementioned cases facing imminent execution, all of the trials were held before Batson was even decided. The Williams case was particularly marred by racial bias, not just in jury selection but in venue choice and in the prosecutor's closing arguments. In fact, later, the same prosecutor who tried the Williams case was sanctioned twice by the California Supreme Court for racially biased jury selection. The Morales case also presented compelling evidence on appeal that Ventura County's jury selection process was racially skewed, causing one Supreme Court justice to vote for reversal on this basis.

While the law and our awareness of racial bias in criminal trials has evolved over the past 28 years, jury instructions used in death penalty trials have undergone an even more dramatic transformation. Here is the original jury instruction given at the trial of Williams, Allen and Morales that explains when a death sentence is appropriate:

"If the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without the possibility of parole."

Compare this to the newly approved Judicial Council instruction on when a death sentence is appropriate:

"Determine which penalty is appropriate and justified by considering all the evidence and the totality of any aggravating and mitigating circumstances. Even without mitigating circumstances, you may decide that the aggravating circumstances are not substantial enough to warrant death. To return a judgment of death, each of you must be persuaded that the aggravating circumstances both outweigh the mitigating circumstances and are also so substantial in comparison to the mitigating circumstances that a sentence of death is appropriate and justified."

That's a substantial change.

Another major revelation since California reinstated the death penalty is that informant witnesses lie on the stand. In 1989, the CBS show, "Sixty Minutes" aired an interview with notorious jailhouse snitch Vernon White, who showed how he could easily fabricate a "confession" from a defendant he had never met. A Los Angeles County Grand Jury report later concluded that false testimony by jailhouse informants was a substantial problem and that the Los Angeles County district attorney's office had violated its ethical obligations through the knowing misuse of such testimony. As a result, new laws were passed requiring additional disclosures to the defense and mandating that the jury be warned about the unreliability of informant witnesses.

All the cases with pending execution dates were tried before these modest reforms were adopted. And all relied heavily on informant witnesses - jailhouse snitches, cooperating codefendants, or both.

More recently, we have learned that the leading cause of wrongful convictions in death penalty cases in the United States is false testimony by informant witnesses. Of 111 death row exonerations investigated by the Center on Wrongful Convictions, 45.9 percent involved false testimony by informant witnesses. Similarly, the Illinois Commission on Capital Punishment found that of 13 death row exonerations in that state, six involved false testimony by jailhouse informants or accomplice informants. As a result, the Illinois Commission, the bipartisan Constitution Project, and others have concluded that a death sentence should not be sought were the evidence is based largely on the testimony of informant witnesses.

If that rule were applied to the three pending cases, none of these executions would proceed.

The death penalty, under the best of circumstances, puts a moral strain on our legal system. In every other case, civil or criminal, we instruct jury members that they are not to be guided by sympathy; they are to decide the case based on the facts and the law. But when it comes to the ultimate decision - life or death - we throw that guiding principle out the window. If you know the facts and understand the law, then any person should be able to reach a correct decision as to whether the defendant committed the crime charged. But there is no "correct decision" as to whether a man or woman should live or die. Thus, the penalty phase becomes a pure contest of emotion. It is the one area of the law where we reject what is otherwise a foundational premise of our legal system: that a just society is one "ruled by laws not by men."

Consider the growing evidence that the system is generally plagued with flaws and disparities:

Since 1976 when the U.S. Supreme Court lifted its prohibition on the death penalty, 121 men and women have been freed from death rows around the nation after being found innocent. In California, six death row inmates have been freed since the state reinstated the death penalty. The state of Georgia recently apologized for an execution it called "a grievous mistake." And the St. Louis county prosecutor currently is conducting an investigation to determine whether the state of Missouri executed an innocent man when Larry Griffin was put to death in 1995.

Race and geography also determine who gets the death penalty in California. A recently released statewide study found that a defendant whose victim was white is three times more likely to be sentenced to die than one whose victim was African-American, and four times more likely than one whose victim was Latino. Also, a person convicted of first-degree murder in a rural, predominately white county is three times more likely to be sentenced to death than a person convicted of a similar crime in a diverse, urban community.

Similar biases and legal flaws tainted the cases of Williams, Allen and Morales. However the courts decided they were not enough to warrant a reversal, though in each case, some judges disagreed.

That presents a dilemma to those of us in the legal community and to society in general: How many mistakes are we willing to live with to see a person executed?

With so many questions unanswered, let's hold off on executions and let the Justice Commission do its work.

Natasha Minsker is death penalty policy director for the ACLU of Northern California.