Bid to Bar Execution Uses Starr Power

Attorney Kenneth W. Starr, best known as the Whitewater independent counsel, said Thursday that he had recruited political associates to appeal to the governor to commute the death sentence of a killer scheduled to die next week.

“That was part of the reason I was brought in,” Starr, a prominent Republican, said. He would not identify anyone he has persuaded to try to keep Michael Morales from being executed Tuesday by lethal injection.

Starr, dean of the Pepperdine Law School, said he was convinced the execution would be “a grievous injustice of profound proportions” -- even though Morales doesn’t deny that he raped and murdered 17-year-old Lodi high school senior Terri Winchell in 1981, choking her from behind with a belt, beating her on the head with a hammer and stabbing her with a knife.

At issue is the testimony of a jailhouse informant that Morales bragged about the murder in conversational Spanish. That provided prosecutors with the basis for the special circumstance that landed Morales on death row.

But it was later learned that Morales, a Stockton high school dropout, doesn’t speak Spanish.

Even Morales’ trial judge, Charles R. McGrath, is urging Gov. Arnold Schwarzenegger to spare the murderer’s life.

Just days before the scheduled execution, Starr’s powerful political ties and years of experience arguing cases before the U.S. Supreme Court and federal appeals courts have become Morales’ best hope for having his sentence commuted to life in prison without parole.

“When a trial judge is moved to urge the governor to exercise executive power to bring about justice,” Starr said, “then that is a stunning development.”

But that was not the only reason Starr agreed in late January to assist the defense team. Starr, the son of a minister, said he also was intrigued to learn that Morales was a “deeply sorrowful Christian.”

“It was part of the elements and dimensions of this man as a human being,” said Starr, who has been the solicitor general in the Justice Department, a judge on the U.S. Court of Appeals and leader of the probe into President Clinton’s Whitewater land deal.

“I responded to the call,” Starr said.

It is not the first time Starr has been asked to help win clemency for a death row inmate. A year ago, he provided services pro bono to Robin Lovitt, a convicted murderer in Virginia whose execution would have been the 1,000th since the U.S. Supreme Court ruled in 1976 that capital punishment was constitutionally permissible.

Lovitt had been convicted of killing a pool hall manager on the basis of DNA evidence that prosecutors claimed showed he had held the murder weapon and that the victim’s blood was on his jacket. Virginia law allowed Lovitt to have the evidence tested with scientific methods not available at the time of his 1998 trial.

But Lovitt was never able to use the new tests because a deputy clerk had all the evidence -- including the murder weapon and the DNA samples -- destroyed.

Believing capital punishment should be applied only when guilt is certain, Starr persuaded former Virginia Republican gubernatorial candidate Mark Early, among others, to urge Gov. Mark Warner to commute Lovitt’s sentence to life in prison. A day before Lovitt’s scheduled execution last year, Warner granted clemency for the first time during his governorship.

Schwarzenegger’s office said he was reviewing the Morales case and had not issued a decision.

“Judge Starr is an excellent attorney,” said Rob Lee, executive director of the Virginia Capital Representation Resource Center, which launched Lovitt’s clemency effort. “His involvement brought a broader audience to the cause.”

Stephen Gillers, a legal ethics scholar who denounced Starr for excessive legal tactics in the Whitewater probe, predicted that Starr would be a valuable asset in the Morales case.

“He’s a great lawyer; very smart, thorough and meticulous,” Gillers said. “And although I certainly do not share all his values, I have deep respect for his legal ability.”

Still, time is running out for Morales, who suffered a setback this week when U.S. District Judge Jeremy Fogel turned down his argument that lethal injection violates a constitutional ban against “cruel and unusual punishment.”

Instead, Fogel told the state Department of Corrections and Rehabilitation that it could proceed with the execution at San Quentin State Prison provided that an anesthesiologist ensured that the procedure was painless. Officials agreed and found two doctors willing to monitor Morales’ execution.

“Fervently we pray this does not happen,” Starr said.

He added that Morales’ fate “is in the bosom of the governor.”