Defense Challenges D.A.'s Standard for Seeking Death Penalty

Times Staff Writer

It is one of the most awesome powers of a district attorney in California--the power to choose whether to seek the death penalty for a defendant in a murder case.

San Diego County Dist. Atty. Edwin Miller has not exercised that option often, pursuing it in just 21 homicides that have gone to trial in the past decade.

But his decision to seek the execution of Laura Troiani in a North County murder-for-hire case has prompted perhaps the closest scrutiny ever of the process behind Miller's choices, as well as a charge that--in this case at least--his judgment was capricious.

Defense lawyer Geraldine Russell will argue in a Vista courtroom today that the special circumstances allegations against Troiani should be thrown out.

In general, Russell contends, county prosecutors lack any standards for determining when to seek the death penalty. And in Troiani's case, she says, statistical analysis demonstrates that the seemingly decisive factors present in all of San Diego's previous death-penalty cases seem to be absent.

"This is an arbitrary use of discretion," Russell said in an interview.

The courtroom battle parallels death-penalty challenges pending before both the California Supreme Court and the U.S. Supreme Court. Cases before both high courts seek to demonstrate statistically that the death penalty is sought and applied in a discriminatory matter. Legal experts say that, if resolved in favor of the defendants, the cases could create a major new obstacle to executions nationwide.

Prosecutors in San Diego insist that if ever a case justifies seeking capital punishment, the killing of Marine Staff Sgt. Carlo Troiani in August, 1984, meets the test.

Laura Troiani is charged with murder, accused of hiring five young Marines to ambush her husband on a rural road in Oceanside so she could collect his life insurance proceeds and take up with her lover, one of the alleged gunmen. Two aggravating conditions made the slaying a death penalty case, according to prosecutors: that Carlo Troiani's killers lay in wait for him and that the killing was a murder-for-hire.

Deputy Dist. Atty. Philip Walden, chief of Miller's North County office, said his boss made a careful decision, based on the facts of the case, to file the special circumstance allegations against Troiani that make her eligible for execution if she is convicted of first-degree murder in a trial scheduled to start Nov. 3.

Walden said Friday that it is fallacious for Russell to argue that, in cases similar to Troiani's, other San Diego County defendants have not faced the death penalty. In the 15 years that Miller has been district attorney, there has never been a case like the killing of Carlo Troiani, Walden said.

"For them to say he was arbitrary and discriminatory in seeking the death penalty in this case is absolutely absurd," said Walden, the lead prosecutor in the Troiani case. "If Mr. Miller had not sought the death penalty in this case, he would not be fulfilling his responsibilities in office.

"If this is not a death penalty case, what is?"

At the heart of Russell's challenge is the contention that Miller and his staff lack a consistent standard for answering just that question.

She cites as evidence an expert analysis of 133 San Diego County homicide cases--selected by a former prosecutor for study because they appeared to qualify for the death penalty--dating to 1977.

John Weeks, a San Diego State University statistician, examined more than 200 characteristics of each case to determine the qualities that seemed decisive in making prosecutors seek capital punishment.

According to Weeks' findings, submitted to Vista Superior Court Judge Gilbert Nares, Laura Troiani did not come anywhere close to fitting the profile of the defendant typically charged in San Diego County death penalty cases. The study found:

- 95% of the death penalty defendants were male.

- 100% of the defendants killed someone other than their spouse.

- 86% committed homicide during the commission of another felony.

- 81% were the gunmen.

- 71% had multiple victims.

- 71% were under the influence of drugs.

- 67% had a prior record.

In all of the 21 death penalty cases tried locally since 1977, the defendant shared at least three of these characteristics, according to Weeks' report.

In Troiani's case, none of these factors was present.

To Russell, that finding--along with Miller's acknowledgment in a sworn statement that his office has no guidelines for identifying death penalty cases--is proof that the selection of Laura Troiani as a candidate for the gas chamber is an aberration that should be reversed.

"We've already established by expert testimony that there is a zero expectation of my client facing death," Russell said. "And that statistical evidence demonstrates arbitrariness. And if a person's life is being arbitrarily decided upon, that does not comport with basic due process."

Walden does not draw the same conclusions from the defense studies.

He questions the way the 133 cases were selected for study and says Weeks testified that the resulting sample was too small to be meaningful.

In fact, Walden argues, there really are no cases that can meaningfully be compared to the Troiani killing.

Only three of the 133 cases were alleged murders-for-hire, Walden said. Only five were cases where the defendant was accused of ambushing the victim. No other case had both of those special circumstances, he said.

"We've never seen a case like this in the history of Mr. Miller's tenure in office," Walden said.

He acknowledged that Miller and his staff have no rules for determining which cases merit seeking capital punishment. But if special circumstances allegations were based on some codified checklist, Walden said, defense lawyers would be quick to charge that prosecutors were being arbitrary.

Besides, he noted, Miller's judgment has been backed by juries: In 20 of the 21 cases where special circumstances have been sought, juries have confirmed them, recommending sentences of death or of life without parole.

"In other words, he's been right on the money each and every time," Walden said.

Russell wants Miller to explain his decision-making process in court. She has issued a subpoena for him to appear before Nares.

Walden said he will vigorously resist the subpoena.

"We feel the district attorney does not have to answer to Geraldine Russell as to why he exercises his discretion the way he does," Walden said. "He answers to the voters who put him in office, and he doesn't answer to defense attorneys in criminal cases."

Russell, though, says court is the perfect place for the prosecutors to explain themselves.

"They claim they have unbridled discretion to seek the death penalty, and whether it's arbitrary or whimsical doesn't matter--they can do what they want," she said. "We think they have an obligation to the people of the state to seek that kind of punishment in a fair manner."

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