Livesay, Deathsay : Assistant D.A. Serves as the Final Arbiter in Capital Cases

Los Angeles County Assistant Dist. Atty. Curt Livesay has made morelife-and-death decisions in the last nine years than any other prosecutor in California and, in all likelihood, the rest of the nation.

Exactly 1,011 of them, at last count.

Livesay, No. 3 man in the nation’s largest district attorney’s office, is responsible for making the final determination on whether to seek the death penalty in capital cases--those in which a defendant stands accused of such special circumstances as having killed a police officer or committed a multiple slaying.

With his folksy drawl and affable air, the mild-mannered, 47-year-old Oklahoma native hardly seems the sort who would be tagged with the office nickname of “Dr. Death.” And in fact, Livesay is no more than a lukewarm supporter of capital punishment, although he has sought to put about 400 people to death since 1979.

While he is often described as “a prosecutor’s prosecutor,” Livesay’s warmest admirers include some of the toughest defense attorneys in Los Angeles, whose clients he frequently recommends should be executed.

“He’s maybe the fairest man I’ve ever met in my life,” said one prominent defense lawyer, who asked not to be named because he often tries capital cases. “I’d trust my own life to Curt more than anyone else.”

“Everyone respects Curt Live say, whether law enforcement, prosecutors or defense attorneys,” said the county’s chief public defender, Wilbur F. Littlefield. “He’s really a straight shooter.”

Three successive district attorneys, also impressed by Livesay’s sense of fairness, have selected the 23-year career prosecutor to serve in their stead as the office’s final arbiter on life-and-death recommendations.

In an average year, Livesay reviews more than 100 potential death penalty cases. In contrast, authorities in such counties as San Francisco and San Diego deal with 10 or fewer.

These days, the recommendations are much less abstract than when Livesay was first given the post by then-Dist. Atty. John K. Van de Kamp. Under the new conservative majority on the state Supreme Court, fewer death penalty sentences are likely to be overturned. And experts believe that California’s first execution since the 1977 restoration of capital punishment could occur within a year.

Despite the gravity of the task, Livesay contends that most cases are not that difficult to decide. Factors he weighs include a defendant’s criminal record, age, intent and the reliability of evidence against him.

“A death penalty case is one where a robber robs a clerk, gets the money and tells the clerk, ‘I have been to prison before. Witnesses sent me there, so I’m going to make sure that you don’t live to tell about this,’ and shoots him one time in the head,” Livesay said in an interview.

“A life without (parole) case is one where a robber goes into a liquor store, the clerk refuses to give him money and the robber shoots him one time, perhaps in the body. . . . And if it’s a scuffle and the gun goes off accidentally, it might not even be a special circumstances case.”

Even cop killings can differ. For example, death was sought against two defendants in the killing of a Los Angeles police officer during a 1984 Chinatown jewelry store holdup. (A jury recently turned prosecutors down.)

On the other hand, he said, death is not being sought in a pending case in which two LAPD explosives experts were killed in 1986 trying to defuse a bomb. The reason? Lack of sufficient evidence to prove a specific intent to murder.

In virtually all other California counties, elected district attorneys themselves make the final recommendations in death penalty cases. They also refuse defense requests to explain their reasoning in court, saying they have no obligation to explain why they seek death in some cases but not in other, similar ones.

However, in Los Angeles County, officials decided shortly after the death penalty was restored to put the power in the hands of a career prosecutor, instead of his elected boss, with instructions that he explain his reasoning to everyone in court before trial begins.

Under this system, it was reasoned, the death penalty would be applied more consistently over time. Furthermore, the pretrial testimony might head off a flurry of appeals by defendants claiming that prosecutors unfairly sought the death penalty in their particular case.

Usually Prevails

In the last nine years, Livesay has testified on such issues of discrimination in about 60 cases and only once has a judge ruled against him.

Livesay, who makes his discretionary judgments after receiving detailed memos from trial deputies and their supervisors, has sought the death penalty in about 40% of the cases he has reviewed. He generally agrees with lower-level recommendations, but overrules his subordinates in about 10% of cases.

“I’d expect the longer we are at this, the fewer disagreements we would have, because they’ll say, ‘Hey wait a minute, he (Livesay) will want to know this, this and this,’ ” he explained. “The goal is to set up a system that fosters uniformity, consistency and predictability.”

Although Los Angeles County juries reject death in two out of three trials, officials say that should come as no surprise.

“When push comes to shove with a jury, they are very reluctant to impose the death penalty,” said Dist. Atty. Ira Reiner.

Low Profile

Over the years, Livesay has managed to maintain a low profile despite the delicate nature of his job. The only criticism of him pertains to the job itself rather than to his performance.

“Curt has a lot of integrity,” said defense lawyer Leslie H. Abramson. “. . . But the job he’s been given, I don’t think any human being can do no matter how high-minded, smart and thorough.

“The bottom line is that everything is going to be a judgment call,” said Abramson, who has bested the district attorney’s office in several arduous death penalty cases. “I don’t think one person should have that much power of life or death . . . .”

Livesay readily acknowledges that his personal and professional background is bound to have an impact on his decision making. But if anything, he said, it has helped him make fair, consistent judgments.

“The overriding experience that influences me is my professional experience. I’ve been asked if I believe in the death penalty, and I can’t say that I do. I’m not opposed to the death penalty (either), but performing this task . . . I don’t have to believe for or against the death penalty. It’s the law. . . . Sometimes I think I could just as easily be an advocate for the defendant as I am for the prosecution. There’s no magic.’

“(And) I’m proud of my heritage,” he emphasized. “I’d hope it would give me a feeling for humanity and a stable, humane approach.”

Livesay, whose mother was half-Irish and half-Choctaw Indian, grew up on a ranch in the stark hills of eastern Oklahoma. There was no indoor plumbing in Lone Star and he read by kerosene lamp until he was in high school. As a youth, he worked in the hot, steamy fields, herding cattle, milking cows. If he hadn’t come to Los Angeles for college, he recently said, he would have become a rancher.

Livesay, who now looks more like an accountant than a cowboy with his gold-rimmed glasses, clipped mustache and rather expressionless face, harkens back to his hard-scrabble roots in somewhat wistful tones.

“Living close to the soil, in handling cattle and growing up observing life and death with the gravity that it involves, has instilled in me a view that any issue worth a decision deserves a reasonable approach, as devoid of emotion as possible,” he reflected, his legalistic explanation clashing, as it often does, with his earnest, silky drawl.

Although he says he has no close friends except for his wife, Biserka, a Yugoslav native whom he met at UCLA where he attended law school, Livesay does maintain an active interest in several Indian social service organizations.

“One thing funny, you see him all dressed up in a suit--he’s that type person during business hours,” said Joan Freeman, director of the American Indian Free Clinic in Compton. “But when we have all-day meetings, you’ll see him in jeans and cowboy boots--a real down-to-earth Oklahoma cowboy. He’s a cowboy Indian, I guess you could say.”

Livesay joined the district attorney’s Long Beach office in 1965 after receiving job offers from both the D.A. and the public defender’s offices on the same day. He took the prosecutor’s post, he said, “because it came through about two hours earlier.”

Climbing the ladder quickly, he worked as a trial deputy, head deputy in the juvenile division and director of the Bureau of Central Operations before being named to replace Stephen S. Trott as chief deputy district attorney in August, 1979.

From Trott, who is now a federal appeals court judge, Livesay took control of the death penalty review process, which was then in its infancy.

By now, Livesay has become such an institution that the memos he mails to defense attorneys when he decides against seeking the death penalty are commonly referred to as “Livesay letters.”

For the Los Angeles County defense bar, the anxious wait for such communications has become the legal equivalent of the springtime ritual in which high school seniors anticipate admission letters from prestigious colleges. The difference is in the nature of the “good” news--instead of death, Livesay’s letter says that he will seek the only other option in a special circumstances case, a sentence of life in prison without the possibility of parole.

After having reviewed more than 1,000 cases, Livesay, along with many other observers, foresees difficulties should he ever step aside.

“The real problem, and it’s a practical problem, is that that person would have to read and digest the thousand cases that have been decided up until now in order to make it a meaningful comparative process. . . . Some of my colleagues, I hope good-naturedly, say that Livesay has parlayed an onerous, difficult task into a bullet-proof civil service career.”

Eventually, though, the job may become outmoded, Livesay said.

In 1984, the U.S. Supreme Court ruled in the case of a condemned killer from San Diego, Robert Alton Harris, that the U.S. Constitution does not prevent a person from being executed while others convicted of crimes equally or more heinous are allowed to live.

If the state Supreme Court someday addresses the same issue in the same manner, Livesay said, Los Angeles County would probably no longer send him into court to justify his decisions.

At this point, according to state officials, 72 of the 222 inmates on Death Row in San Quentin are from Los Angeles County.

“It is a difficult job,” Livesay reflected, “(but) I never lose sleep over my decisions in these cases.

“After all, I think we must keep in perspective what I’m doing as a public prosecutor. I’m just deciding, based upon the factors delineated by statute, what penalty will be sought by the prosecution. . . . The jury, based on the evidence and the law, determines whether or not the death penalty is appropriate.”

SPECIAL CIRCUMSTANCES

Under state law, defendants found guilty of first-degree murder are subject to one of two penalties, death or life in prison without the possibility of parole, if any of 19 “special circumstances” are found true. The “circumstances” include:

Multiple murders.

Killing a judge, police officer, firefighter or elected official in retaliation for their performance of official duties.

Killing a witness to prevent testimony.

Killing a victim while lying in wait.

Killing a victim during a robbery, kidnaping, rape, sodomy, burglary or arson.