Prosecutors, Police Wait for Justice : Murderers: ‘How much longer’ will appeals delay executions of Orange County’s Death Row denizens? Authorities wonder in frustration.

Despite the passage of 11 years, Sgt. Paul McInerny can recall in grim detail the shootings at the Cripple Creek Saloon on Garden Grove Boulevard.

A cowboy band was playing as McInerny and three other Garden Grove police officers quietly escorted John George Brown--wanted on drug charges--out of the noisy bar.

Suddenly, McInerny recalled, Brown broke free, drew a .22-caliber semiautomatic handgun and emptied it.

“All eight shots found human targets,” McInerny said.

McInerny was the only officer not wounded in the fusillade. Officer Donald Reed was shot twice, Officer Glen Overly three times and Officer Dwight Henninger once. The other bullets wounded two bar patrons.

All but one survived. Reed died as McInerny cradled him in his arms and repeatedly told him that help was on the way.

Brown was convicted and sentenced to die for Reed’s murder in 1982. Tuesday marks his ninth anniversary on San Quentin’s Death Row, but legal experts say he may not be executed for years.

“Never in my wildest dreams did I ever imagine that John Brown would still be alive today,” said his prosecutor, Assistant Dist. Atty. Bryan F. Brown. “How much longer will we have to wait for justice to be carried out in this case?”

John Brown, now 43, is one of 21 Orange County inmates awaiting execution on Death Row. As in Brown’s case, the 20 other condemned men are far from the gas chamber as their appeals plod through the justice system. Fewer than half of them have reached the federal courts with their appeals.

The senior member of the county’s condemned, William Charles Payton, 37, has not even had his case heard by the state Supreme Court--after nearly 10 years on Death Row. The freshman of the group--serial killer Randy Steven Kraft, 46--could wind up breaking all the records. Although he has been on Death Row a year and a half, he does not even have an attorney yet to begin the appeals process.

“What has been allowed to happen in the Kraft case is an absolute travesty,” said prosecutor Brown, who also handled the Kraft trial. “But the whole (appellate) process is a travesty, really.”

Prosecutors say John Brown, who became the second man after Payton from Orange County on Death Row, is as close to an execution date as any of the county’s condemned. But no one can predict when that might be.

Brown’s appeal has been denied by both the California Supreme Court and the U.S. Supreme Court. Three times judges have scheduled executions; all three dates were set aside as his appeal crept deeper into the federal system.

“Brown really isn’t even close to execution; he’s at least a few more years, at best,” said Deputy Atty. Gen. Bob Foster, who has been in charge of the case.

Invariably, each Death Row case produces a different reason for delay. In Brown’s case, his first appellate attorney was forced to leave the case after three years because of other commitments.

“It’s not at all unusual to see a new defense attorney come on once the direct appeal is over,” Foster said.

Finding qualified attorneys willing to handle Death Row appeals has been one of the major drawbacks in keeping the condemned moving through the system.

The California Appellate Project in San Francisco, also known as CAP, has a contract with the state to find attorneys for Death Row inmates. CAP says the backlog is enormous.

There are 304 men and two women on California’s Death Row, and up to one-fourth of them may be without appellate attorneys, one source said.

Kraft, accused of more murders--at least 45--than anyone ever sentenced to death in California, is considered by prosecutors to be a priority case. But for CAP, Kraft is far down the list for getting an attorney.

“We feel like our focus has to be on some of the older cases, since those men have been waiting on Death Row longer,” said Kathryn Andrews, an attorney spokeswoman for CAP. “Kraft is a particular problem, because his case is so enormous.”

Because Kraft’s case included 22 victims, took more than a year to try and generated 30,000 pages of transcript, it is difficult to find an attorney who can commit the time such an appeal would take.

“Unless we can give it to a major firm, where the work can be divided, we’re basically asking a sole practitioner to give up his law practice to do the Kraft appeal,” Andrews said.

Deputy Atty. Gen. Steven H. Zeigen, who is assigned to represent the state in Kraft’s appeal, said there is nothing his office can do about the delays.

“We have to live with CAP on so many other cases, it wouldn’t do us any good to try to take them into court and bully them,” Zeigen said.

“You have to understand that there is absolutely no motivation for the defense to hurry up on anything in a death appeal,” he said. “The defense attorney’s job is to keep the client alive. They’re going to take as long as possible on every possible step.”

CAP denies that it has dragged its feet in getting lawyers assigned to Death Row cases.

Andrews said CAP will soon hire a full-time recruiter to concentrate on building a new reservoir of lawyers for capital cases.

“We’ve also started to look more and more at civil firms,” she said. “Ideally, a lawyer on these appeals should have criminal experience, experience in capital cases and experience in federal appeals. Right now if we can get two out of three, we’re pretty happy.”

Meanwhile, those most interested in seeing the executions carried out--the prosecutors, the families and friends of the victims--can only wait and wonder.

The years have not dampened their determination in the Brown case. “The case just lingers with you,” McInerny said. “Until he’s finally executed, it’s unfinished business.”