Asking for Death--a Special Circumstance

It started as a family quarrel. Then the 18-year-old Sun Valley man picked up a rifle and shot his father and stepmother to death. He stabbed his 8-year-old stepsister 24 times with a pair of scissors and shot her in the face until she, too, was dead.

Because it was a multiple murder, Robert M. Bloom Jr. was eligible under state law to receive the death penalty. The defendant was young, however, and there were reports that his father beat him, both factors that could weigh against a death sentence.

Only after an exhaustive investigation of the case did Deputy Dist. Atty. Harold Lynn decide to seek the death penalty. In late July of last year, Bloom was sentenced to the gas chamber.

The case illustrates that the decision to ask for the death penalty is difficult and sometimes agonizing for prosecutors even in the most vicious murders.

‘Playing Executioner’

“You are making the initial decision to take somebody’s life. You are playing executioner,” said Deputy Dist. Atty. Kenneth Barshop. “It is the toughest decision we have to make.”

There are legal guidelines to help. Under California law, only limited, “special circumstances” murders are punishable by death. They include multiple murders, robbery-murders and rape-murders, murders for hire, torture murders and murders of policemen, firemen, witnesses and politicians.

But if the prosecutor does not ask for the death penalty, those crimes bring a sentence of life without possibility of parole. In fact, the district attorney’s office says it seeks the death penalty in only one-third of the special-circumstances cases it files.

That leaves the decision on the shoulders of the individual prosecutor. He must make a subjective evaluation of the variables in the case, such as the defendant’s criminal record and his emotional state at the time of the murder. There are no rules governing the importance attached to each of the variables. It is up to the prosecutor to decide.

Psychologist, Judge

In the end, he must play psychologist and judge in deciding if the defendant is so evil, or his crime so heinous, that he should be put to death.

“It doesn’t make the victim any less dead, but you have to look at the nature of the crime,” Barshop said. “Based upon the callousness of the crime, you may decide you have someone who has no socially redeeming value. Maybe someone who has no redeeming value should get the death penalty.”

A prosecutor’s decision to ask for the death penalty is only the first step in a legal process that may subsequently pass through the hands of a Superior Court judge and jury, an appellate court judge and on to the state and federal supreme courts. Indeed, since the death penalty was restored in California in 1977, the state Supreme Court has overturned 30 of the 33 death penalty cases it has reviewed and not a single prisoner has been executed.

Serious Approach

However, prosecutors said they do not make their decisions in anticipation of the decision of a judge or jury. They say they approach it as seriously as if it were literally a life-or-death situation.

Deputy Dist. Atty. Lea D’Agostino, who won a jury verdict for a death penalty in May, said: “Once you get the death penalty and put somebody on Death Row, you realize that your job really involves human life. It is an enormous responsibility.”

It was then-state Sen. George Deukmejian who, after the death penalty was restored, introduced to California law the choice between death and life in prison without possibility of parole in special-circumstances cases. In the past seven years, the Los Angeles County district attorney’s office has faced almost 900 such decisions.

In the past year, prosecutors in the Van Nuys and San Fernando district attorney’s offices have tried more than a dozen death penalty cases and have had to decide between death and life imprisonment in an estimated three times as many cases.

San Fernando Case

In a case now being tried in San Fernando, prosecutors are seeking the death penalty for two Pacoima men charged with murdering a police officer who pulled them over on a routine traffic stop.

A prosecutor’s decision between seeking death or life imprisonment comes after a Municipal Court has ordered the defendant to stand trial for a special-circumstances murder.

In the two weeks he has to make a decision before trial proceedings begin, the prosecutor will research details of the case, poring over police reports and court testimony from the preliminary hearing and consulting other prosecutors in his office. He may re-interview the detectives who investigated the case, witnesses to the crime and even the victim’s family members.

“You have to know the case backward and forward,” Lynn said.

At that point, the prosecutor will turn to his district attorney’s manual and a list of circumstances he must consider in making the decision. The list is copied from a section of the state penal code that instructs judges and juries hearing death penalty cases.

Many Things Considered

Among the things to be considered:

The circumstances at the scene of the crime--for example, did the robber panic and shoot his victim?

Use of violence during the crime--did he beat the victim first or threaten him verbally?

The defendant’s prior felony convictions.

The defendant’s mental and emotional state--was he able to understand the nature of his acts?

Whether it was a crime of passion--was there a reason for the defendant to believe his acts were justified?

The presence of extreme duress--did a woman shoot a husband who beat her?

The defendant’s sanity.

Whether the defendant was under the influence of drugs or alcohol--was his ability to think diminished?

The defendant’s age--is he a young man who is susceptible to rehabilitation?

Whether the defendant was an accomplice or a leader.

Any other circumstance that extenuates the gravity of the crime, even though it is not a legal excuse--a catchall for any evidence that may point to the callousness, or lack of it, involved in the murder.

The prosecutor matches the information he has gathered to the list. He then balances the circumstances like weights on a scale.

If the defendant has a long and violent criminal history, the balance will shift toward the death penalty. If the defendant caught his wife with another man and shot them both in a rage, the balance will shift back toward life imprisonment. If the victim was on his knees begging for mercy and the defendant shot him in the back of the head, the balance shifts toward death. If the defendant turned himself into the police, confessed and shows sincere remorse, the balance shifts back again.

Some Cases Close

“We go through the legal checklist to get to the point where it qualifies as a capital case,” said Deputy Dist. Atty. Billy Webb, head of the district attorney’s San Fernando office. “Then you go through all the factors to see if it is a death penalty case. Some are so blatant it is ridiculous. Some are very close. If it is very close, it falls on the side of the defendant and we ask for life in prison.”

“By the time you get through evaluating each circumstance, the end result almost springs out at you,” D’Agostino said.

Having made a decision, the prosecutor writes a report in which he reviews the crime, investigation and previous court testimony, describes why the murder is classified as a special-circumstances case and recommends either death or life imprisonment.

That report goes to the head deputy in the prosecutor’s office, who reads the report and adds either his approval or disapproval to the prosecuting attorney’s recommendation. The same procedure is repeated by two downtown district attorney’s office directors and, ultimately, the report lands on the desk of Assistant Dist. Atty. Curt Livesay.

Final Decision

Livesay makes the final decision on every special-circumstances case that passes through the district attorney’s office. The district attorney has placed this responsibility with one man in an attempt to be consistent in seeking the death penalty, Livesay said.

Livesay said he has reviewed about 800 cases in the past five years. He often talks with the trial prosecutor, the defense attorney and, occasionally, with investigating police officers and the victim’s or defendant’s family.

On several occasions during the past five years, Livesay has agreed to reconsider his decision after listening to arguments from police and relatives of the victims. Livesay said about 90% of the recommendations from trial prosecutors pass through the chain of command without disagreement either from him or the directors and assistant directors below him.

Despite the fact that he usually follows the trial prosecutor’s recommendation, Livesay said he is careful to thoroughly examine each special-circumstances case that comes to him.

Latitude Criticized

“I appreciate that the decision I make sitting here in an air-conditioned office could be a life-or-death decision,” Livesay said.

Some defense attorneys argue that prosecutors are allowed too much latitude in their decision-making.

“The problem with the death penalty is it’s so arbitrary. It needs some limitation on the part of the law so that prosecutors’ discretion is limited,” said Stuart Rappaport, a bureau chief with the county public defender’s office.

Rappaport argued that the same crime may be tried as a death penalty case by one deputy district attorney but not by another. Rappaport said he believes that the district attorney’s system of having Livesay review each case does not insure consistency because Livesay must work with the information the trial prosecutor provides and can be swayed by a biased report.

Like other defense attorneys interviewed, Rappaport noted that the district attorney’s office files a “tremendous” number of death penalty cases. Rappaport said state legislators should shorten the special-circumstances list.

Defender Cites ‘Happenstance’

“I think the district attorney tries to be consistent, but even with that I think it’s just happenstance and chance,” Rappaport said.

Livesay and other deputy district attorneys say there is no way to take the discretion out of the decision--every crime has its own set of circumstances.

“There is no simple answer to what a death penalty case is,” said Deputy Dist. Atty. Norman Montrose.

Indeed, the one case that Montrose and several other prosecutors pointed to as a recent example of a classic death penalty case ended with a jury recommendation for life in prison.

The case grew from a Thanksgiving weekend, 1981, attack on an 18-year-old Valencia woman and her 16-year-old Sylmar boyfriend. The woman was raped and stabbed three times by two defendants. Her boyfriend was beaten with a pipe, then put in the woman’s car, which was pushed over the edge of an embankment. He died.

Woman Left for Dead

She was then stabbed 17 more times and left for dead on a hillside. It took her nearly two days to crawl to a nearby house for help.

Deputy Dist. Atty. Robert Imerman said he sought the death penalty in this case because of the viciousness of the crime. He said several jurors told him after the trial that they did not return a death sentence because the defendants were young, in their early 20s, and had no criminal records.

In another case in the San Fernando Valley in which prosecutors sought the death penalty, two men were convicted of being hired assassins in the brutal stabbings of a 44-year-old Van Nuys woman and her 8-year-old son.

Testimony in court revealed the victims’ husband and father had taken out an insurance policy on them shortly before he hired the murderers. He was convicted of murder with special circumstances but died of cancer before he could be sentenced. The two murderers were sentenced to death.

Two Men Killed

In D’Agostino’s death penalty verdict last May, there were two defendants who were burglarizing a home when several of the residents walked in on them. The defendants killed two men.

D’Agostino sought the death penalty against one defendant who evidence showed had planned the burglary. The other defendant, although just as guilty of the murders, escaped a death penalty trial because he had not acted as a leader in the initial burglary.

By such small distinctions are prosecutors’ decisions swayed.

“You weigh all these things and you say, ‘Is this the right guy for the death penalty?’ ” said Deputy Dist. Atty. Michael Knight. “You don’t want to be wrong.”