Fear Stalks Death Row as the Inevitable Nears

Sometimes James A. Melton gets so depressed, sitting alone in his 4 1/2-by-10-foot cell on Death Row, that he begins to sob spontaneously.

“You get in that cell, nobody around--I’ve sat in there, and it just feels like the whole world has come down on top of me,” he said.

There is a new mood these days on Death Row at San Quentin State Prison, where no one has been executed in 20 years.

“Some inmates don’t want to talk about it,” Melton said, “but I do try to talk about it. Everybody knows that sooner or later they’re going to start killing people. There is absolutely no doubt about it.”

Said inmate John Louis Visciotti: “If that first guy goes, then there will be another. Then another. And pretty soon, they’ll get down to me.”

Melton and Visciotti are convicted killers. They were sentenced in 1983 by the same Orange County judge for separate murders. Until this year, however, it had seemed less and less likely with each passing month that they would be put to death. Now, the odds have changed.

Under Chief Justice Rose Elizabeth Bird, the California Supreme Court--which automatically reviews all cases in which capital punishment is imposed--upheld only three death sentences under the state’s current death-penalty law, which was enacted in 1977. Largely because of that record, the voters ousted Bird and two associate justices last November.

The high court is now dominated by Gov. George Deukmejian’s appointees, all of whom are considered death-penalty advocates. To Melton and Visciotti, like the other 196 Death Row inmates at San Quentin, that means executions are a reality again. The only question is when they will resume.

“If the men on Death Row aren’t worried about the new Supreme Court, they ought to be,” said appellate attorney Robert F. Kane of San Francisco, who represents Melton.

Today, all 16 Orange County inmates on Death Row are waiting for the new Supreme Court, under Chief Justice Malcolm Lucas, to rule on appeals from their sentences.

Prosecutors and defense lawyers agree it is almost certain that none of those 16 will be executed before the 1990s because of the appeals. But they, too, agree that a resumption of executions is inevitable--that it is only a question of time.

Said Deputy Dist. Atty. Bryan F. Brown, who prosecuted John George Brown for killing a Garden Grove police officer more than seven years ago: “We’ve got a new Supreme Court, and I don’t think it’s one that John George Brown is going to be too happy with.”

Bird Court Reversed

Last month, the Supreme Court reversed a landmark ruling by the Bird court when it decreed that prosecutors do not have to prove in a death-penalty case that a murderer intended to kill his victim. That decision could affect dozens of appeals by Death Row inmates and will make it easier for prosecutors to seek the death penalty.

Two days later, citing its intent-to-kill ruling, the court upheld the death penalty of an Oakland parolee convicted of the robbery and murder of a fellow member of a forgery ring. It was the third death sentence upheld by the Lucas Court.

“It’s absolutely a sign that things are going to be different with this court,” prosecutor Brown said.

Defense lawyers fear what Timothy J. Foley calls “an avalanche” of executions.

“I just hope that fairness and care are not sacrificed in some sort of race to the gas chamber,” said Foley, who represents Visciotti and another Orange County inmate on Death Row, Thomas F. Edwards. Foley fears that defendants’ rights will be “shuffled aside just because people want the process sped up.”

But Robert Dykstra of Westminster, whose 20-year-old son, Timothy, was killed by Visciotti, said he believes that it is time for the pendulum to swing toward quicker appellate court decisions. Visciotti’s appeal has been pending for four years.

‘There Is a Limit’

“I believe in the American way--I wouldn’t want any other system,” Dykstra said. “But, my God, there is a limit. The first two years were the hardest, but every year now takes its toll on our family.”

Five of the Orange County inmates on Death Row were convicted of multiple murders, and a sixth is facing trial for a second murder. Four others were convicted of killing teen-agers or children.

Three others were convicted of murder during a rape. Two were convicted of murder during a robbery. And John George Brown was convicted of killing Garden Grove Police Officer Donald F. Reed in a 1980 shooting spree that left four wounded.

Several of these inmates could win new penalty trials through appeals, according to lawyers on both sides. At Brown’s trial, for example, Orange County Superior Court Judge Kenneth E. Lae failed to give several jury instructions that the Bird court later ruled should be given in all death-penalty cases. That may mean that the Supreme Court will require a retrial when it rules on Brown’s appeal.

But if Brown does win a new penalty trial--at which jurors would decide only whether he should be given a death sentence or life in prison without the possibility of parole--his prosecutor says he will be ready.

“We’ve kept track of our witnesses the last six years just in case,” prosecutor Brown said. “I’m convinced another jury would return the same verdict of death.”

With the Deukmejian appointees on the Supreme Court, prosecutor Brown and other death-penalty advocates are less worried about reversals of jury verdicts in the future.

Orange County Superior Court Judge Robert R. Fitzgerald--who sentenced four of the current Death Row inmates, including Melton and Visciotti--complained that “there was no way to second-guess what the court would do to change the rules” before Bird’s ouster. Now, death sentences are more likely to be upheld because the Lucas court is more likely to keep the rules consistent, the judge said.

Hard to Predict

Nonetheless, the long process of appeals makes it difficult to predict when executions will occur.

The first step is the automatic appeal to the state Supreme Court, and even if that court upholds a death sentence, it may agree to rehear the case. If a rehearing is not granted, the inmate may ask a federal court to intervene.

Among the inmates whose death sentences have been upheld by the state Supreme Court since 1977, only Robert A. Harris of San Diego is nearing the end of his federal appeal. Proceedings in federal court on behalf of one of the others have just begun, and the rest are still seeking rehearings in the state Supreme Court.

Deputy Atty. Gen. Michael D. Wellington of San Diego, who is handling the Harris case, predicted that, regardless of the state Supreme Court’s philosophy, it will continue to take six to 10 years after a death sentence is handed down before a defendant runs out of appeals.

But with the new court, Wellington added, many of these defendants are only postponing the inevitable.

Defense lawyers such as Orange County Assistant Public Defender Michael P. Giannini, a staunch opponent of California’s death-penalty law, agree.

‘The Horror’ of Executions

“It’s sad to say, but it may take several executions in this state before we realize the horror of what we’re doing,” he said.

Among those Giannini has represented in death-penalty cases is Thomas F. Edwards, who was convicted of the murder of 12-year-old Vanessa Iberri in the Cleveland National Forest on Sept. 19, 1979. Depressed over splitting up with his ex-wife, Lisa, Edwards shot the girl and her 12-year-old friend, Kelly Cartier, who lived to testify against him.

He is on Death Row because the jury agreed with prosecutors that he was “lying in wait” when he shot the two girls. He was in his pickup truck on the path ahead of them, and as they walked into range he shouted, “Hey, girls,” to draw their attention before firing. “Lying in wait” is one of a handful of special circumstances listed in the California Penal Code that qualify a murderer for the death penalty.

Edwards’ attorneys allege that he was not lying in wait because he did not conceal himself or his weapon.

The Bird court issued no ruling that provides a clear definition of the phrase, and lawyers on both sides agree that Edwards’ fate rests with the new court’s interpretation of the term.

“It’s a close call, but we think the lying in wait is there,” said Deputy Dist. Atty. John P. Conley, who prosecuted Edwards. Without the finding that he was lying in wait, Edwards’ sentence would be reduced to 27 years to life in prison. He would be eligible for release by 1994.

If Edwards eventually is executed, Giannini said, “I know I will be devastated.”

For one thing, he said, “I’ve gotten to know Tom well over the last five years, and I know he is not the kind of person who should die in the gas chamber. But also, executing Tom would show the utter stupidity of California’s death laws. It’s like roulette.It’s simply too random who is going to die and who is not.”

Giannini argues that a defendant sometimes faces the death penalty only because his crime was committed in Orange County.

Prosecutors in Los Angeles County, for example, offer pleas bargains in cases that would be pushed hard as death--penalty cases here, he contended.. “Los Angeles County has so much crime that they’re dealing out cases for seconds (second--degree murder, which carries a penalty of 15 years to life in prison) that Orange County prosecutors would want death for,” Giannini said.

William J. Kopeny, a Santa Ana lawyer specializing in appellate work, says the first execution in the state will be hard for him as a defense attorney. “It will make me think, ‘My God--we aren’t doing nearly enough,”’ he said.

Kopeny is involved in one Death Row appeal and is also one of the lawyers representing Randy Steven Kraft, accused in Orange County Superior Court of 37 murders.

Kopeny and Giannini believe that Orange County prosecutors let “visceral” reactions to crime interfere with their decision on whether to seek the death penalty.

“You have to look at the defendant and what kind of person he is before deciding punishment,” Giannini said.

Deputy Dist. Atty. Anthony J. Rackauckas Jr., who has sent three men to Death Row, disagrees.

“Some crimes are simply so depraved that there just isn’t any penalty short of the death penalty that provides justice,” Rackauckas said. Rackauckas became a leader in the movement to oust Bird after the Supreme Court in 1980 threw out the death sentence against Maurice Thompson, whom Rackauckas prosecuted. Thompson, now 43, was convicted in 1978 of killing a La Habra man and leaving the man’s girlfriend for dead with three bullet wounds.

Prosecutor Brown also feels strongly about the death penalty. He points to the three men he has sent to Death Row--Brown, William G. Bonin, now 40, and Teofilo Medina, now 43. Bonin was convicted of 14 murders in which the victims were all boys who had been sexually molested. Medina was convicted of four execution--style slayings during convenience--store robberies.

“Bonin and Medina have to be executed,” Brown said. “With the number of lives they’ve taken--and what that’s done to these victims’ families--we cannot stand for anything less for them.”

Kay Brenneman has similar feelings.

She is the mother of Anaheim newspaper carrier Benjamin Brenneman, who was killed at the age of 12 by Robert Jackson Thompson, now 39. Thompson has been on Death Row for four years, and Brenneman has called the state Supreme Court twice a week throughout that period to keep track of his appeal.

“I won’t get any satisfaction out of seeing Thompson executed,” she said. “But it’s the only guarantee I have that he won’t ever be turned loose again.” HOW THE COURT HAS CHANGED The Bird Court These were the members of the California Supreme Court just before Rose Elizabeth Bird, Joseph R. Grodin and Cruz Reynoso were ousted by the voters last November. Chief Justice Rose Elizabeth Bird Appointed by Gov. Edmund G. Brown Jr. in 1977 Ousted last November Associate Justice Stanley Mosk Appointed by Gov. Edmund G. Brown Sr. in 1964 Associate Justice Cruz Reynoso Appointed by Gov. Edmund G. Brown Jr. in 1981 Ousted last November Associate Justice Joseph R. Grodin Appointed by Gov. Edmund G. Brown Jr. in 1982 Ousted last November Associate Justice Allen E. Broussard Appointed by Gov. Edmund G. Brown Jr. in 1981 Associate Justice Malcolm Lucas Appointed by Gov. George Deukmejian in 1984 Associate Justice Edward A. Panelli Appointed by Gov. George Deukmejian in 1985 The Lucas Court These are the members of the California Supreme Court today. Chief Justice Malcolm Lucas Appointed by Gov. George Deukmejian in 1987 Associate Justice Stanley Mosk Appointed by Gov. Edmund G. Brown Sr. in 1964 Associate Justice Allen E. Broussard Appointed by Gov. Edmund G. Brown Jr. in 1981 Associate Justice Edward A. Panelli Appointed by Gov. George Deukmejian in 1985 Associate Justice John A. Arguelles Appointed by Gov. George Deukmejian in 1985 Associate Justice David N. Eagleson Appointed by Gov. George Deukmejian in 1985 Associate Justice Marcus M. Kaufman Appointed by Gov. George Deukmejian in 1985 CAPITAL PUNISHMENT IN CALIFORNIA: A CHRONOLOGY 1851: California, admitted to the Union in 1850, establishes the Criminal Practices Act, allowing county sheriffs to carry out hangings. 1890: Alameda County Sheriff W.E. Hale and others lobby state legislators to change the law so that the state--not the counties--will conduct executions by hanging. 1891: The Legislature shifts responsibility for hangings from the counties to the state. Hangings are authorized to be conducted at either San Quentin or Folsom state prisons. 1893: The first state hanging takes place at San Quentin, where W.E. Hale is now the warden. The first to be executed is Jose Gabriel, 60, of San Diego. 1937: The Legislature, under pressure to use a more civilized method of execution, orders that hangings be replaced by the gas chamber. 1938: The first execution in San Quentin’s gas chamber is carried out. The condemned are five prison inmates convicted of killing Folsom Prison Warden Clarence Larkin in a riot. Two of them are executed Dec. 2, and the other three are executed over the next several days. Evelita Juanita Spinelli, 50, from Sacramento County is the first woman executed by the state. June 3, 1955: Barbara Graham, whose case has twice been the subject of a movie, is executed along with her two crime partners, John Santo and Emmett Perkins. The three were convicted of robbing and beating to death an elderly Burbank woman. Graham was portrayed by Susan Hayward and, later, by Lindsay Wagner. May 2, 1960: Caryl Chessman is executed. Chessman, called the Red Light Bandit, holds the record for the longest time on Death Row, 11 years and 11 months. He was convicted of raping several women, but never of murder. He became well known for handling his own legal appeals and was the subject of a movie, in which he was portrayed by Alan Alda. April 12, 1967: Aaron Mitchell is executed for the murder of a Sacramento police officer, who was killed with another policeman’s revolver, during a robbery attempt. Mitchell, who had a long criminal record as a thief, was holding up a Sacramento restaurant on Feb. 15, 1963, when the manager slipped out and called police. After herding patrons into a walk-in refrigerator, Mitchell confronted the police and got the drop on officer Ronald Shaw. He took away the officer’srevolver and used it to kill officer Arnold Gamble. Mitchell was shot 7 times and almost died. Shaw also was shot by another officer by accident in the exchange of gunfire. Mitchell had grabbed $381.85 from the cash register. Shaw was one of the witnesses at Mitchell’s execution in the gas chamber. Mitchell was the last person executed under a death sentence in California. ON DEATH ROW / Orange County’s 16 Inmates at San Quentin Prison John G. Brown, 39. Convicted in the June 9, 1980, murder of Garden Grove police officer Donald Reed in a bar shooting. Brown claims he was too high on drugs to know what happened. Sentenced June 11, 1981. William C. Payton, 33. Convicted in the May 26, 1980, Garden Grove murder of Pamela Montgomery, 21, who was raped and stabbed. Payton claims he was unconscious at the time. Sentenced on March 5, 1982. James A. Melton, 35. Convicted in the Oct. 10, 1981, strangulation murder of Tony DeSousa, 77, during a robbery at the victim’s Newport Beach home. Melton says he is innocent. Sentenced March 18, 1983. Jaratun Siripongs, 37. Convicted of the Dec. 15, 1981, murder of Packawan Wattan- aporn, 36, and Nguyen Quach 52, during a robbery at a Garden Grove market. He says he is innocent. Sentenced April 21, 1983. William G. Bonin, 40. Known as the Freeway Killer. Convicted of 14 murders in Orange and Los Angeles counties. Bonin says he is innocent. Sentenced in L.A. County in 1982, and in Orange County in 1983. John L. Visciotti, 30. Convicted in the Nov. 8, 1982, murder of Timothy Dykstra, 22, during a robbery. Admits the killing but claims he was strung out on drugs and panicked. Sentenced Oct. 21, 1983. Robert Jackson Thompson, 39. Convicted in the Aug. 25, 1981, murder of newsboy Benjamin Brenneman, 12. Thompson admits stuffing the boy in a metal trunk but denies killing him. Sentenced Dec. 6, 1983. Richard D. Boyer, 29. Convicted in the Dec. 7, 1982, murder of Francis and Aileen Harbitz in Fullerton during a robbery. Claims he was too high on drugs to know what he was doing. Sen- tenced Nov. 2, 1984. Fred B. Douglas, 59. Convicted in the Aug. 13, 1982, murder of Beth Jones, 19, and Margaret Krueger, 16, during a nude photo session in San Diego County. He says he is innocent. Sentenced April 5, 1985. Richard Ramirez, 27. Convicted in the Nov. 21, 1983, stabbing murder in Santa Ana of Kimberly Gonsalez, 22, who also was raped. Ramirez maintains he is innocent. Sentenced to death on July 26, 1985. Thomas Thompson, 31. Convicted with David Leitch in the Sept. 12, 1981, murder of Ginger Fleischli, 20. Leitch was sentenced to 15 years to life. Thompson says he is innocent. Sentenced Aug. 17, 1984. Thomas F. Edwards, 43. Convicted in the Sept. 19, 1979, murder of Vanessa Iberri, 12, of Lake Elsinore. Edwards admits the killing and says he wanted the death penalty. Sentenced Dec. 11, 1986. Rodney Alcala, 42. Convicted in the June 20, 1979, murder of Robin Samsoe, 12, of Huntington Beach. The state Supreme Court ordered a new penalty trial for Alcala in 1984. Sentenced June 20, 1986. Theodore F. Frank, 52. Convicted of the March 14, 1978, murder of 2-year-old Amy Sue Seitz in Ventura County. Frank won a new penalty trial from the state Supreme Court in 1985. Sen- tenced Feb. 11, 1987. Teofilo Medina, 43. Convicted of four murders during a rob- bery spree from Oct. 18 to Nov. 5, 1984. Med- ina says he “probably” committed at least one murder but doesn’t remember. Sentenced Feb. 25, 1987. Martin J. Kipp, 30. Convicted in the Dec. 30, 1983, rape and killing of Antaya Yvette Howard, 19, of Huntington Beach. Kipp has refused to discuss the killing. Sentenced to death on Sept. 18, 1987.