Deciding on Life or Death for O.C.’s Worst Murderers : Justice: Prosecutors meet in secret to weigh evidence, impact on jury. Critics liken process to ‘Star Chamber.’

In one of Orange County’s ghastliest murders, a La Habra janitor is accused of walking into a Tustin office last year and dousing a woman with gasoline before setting her on fire. If Jonathan D’Arcy is convicted, prosecutors will seek the death penalty.

In another case that shocked the county, Robert Chan, 19, is the alleged ringleader in the 1992 New Year’s Eve murder of a high school honor student who was bludgeoned and buried in a Buena Park back yard. Prosecutors want Chan to spend the rest of his life in prison if he is convicted.

Such decrees on who should live and who should face the death penalty are reached each month in Orange County--but far from a courtroom.

Instead, the decision whether to seek a death sentence against those charged with Orange County’s most heinous killings is made by an elite group of veteran prosecutors who gather in secret for high-stakes sessions, taking evidence and weighing the odds before reaching a critical verdict that is usually endorsed by judges and juries.

In coming weeks, the panel of prosecutors will consider the fate of a Dana Point postal worker accused of gunning down his mother and his best friend during a shooting rampage across Orange County, and a Westminster survivalist charged with shooting two women to death at an embroidery shop.

Many defense attorneys praise Orange County prosecutors for their sensitivity in singling out only the most aggravated cases for death sentences. But others complain that California law allows each county too much discretion because there are no uniform guidelines for deciding to seek a death penalty.

Still others liken the process in Orange County to a “Star Chamber proceeding”--a reference to a royal English court long abolished but notorious for secret sessions and harsh judgments.

Assistant Dist. Atty. John D. Conley, the panel’s ranking prosecutor who makes the final determination, said he’s just interested in following the law.

In his 22-year career, he has become all too familiar with the savage work of serial killers, brutal rapist-murderers and those who prey on children.

“There’s no joy in doing this,” said Conley, who sees his role as seeking justice on behalf of those silenced in death. “I often think about what the victims went through in the last moments of their lives.”

What Tips the Scales

The committee must weigh which defendants deserve to die for their crimes and whether 12 jurors are likely to agree before pursuing cases that typically cost taxpayers millions.

They methodically consider factors that might tip the scales of justice in favor of life--or death--including the suffering of the victims, the defendant’s age and previous criminal record.

Some cases are easy to decide, such as that of Randy Steven Kraft, the Long Beach computer consultant sentenced in 1989 to die for killing 16 Orange County men and boys, Conley said.

While prosecutors refused to discuss pending trials, Chan’s case clearly proved more troublesome than most. The death penalty could have been sought in Chan’s case, but some attorneys said they thought a jury would be reluctant to condemn a young man who was a onetime contender for class valedictorian.

The committee decided recently to seek the death penalty against D’Arcy. Authorities allege that his victim, bookkeeper Karen LaBorde, 42, of Orange, died a torturous death after she was set on fire following a dispute over a $150 check D’Arcy claimed was owed him.

The decision by the Special Circumstances Committee--a panel of seven men who have nearly 125 years of prosecuting experience combined--is just one step in the process that can lead to the gas chamber or death by lethal injection.

“It’s not the final decision, but in many ways it’s the most critical point in the whole process, because they have the discretion,” said Associate Prof. William Thompson, who specializes in death penalty issues at UC Irvine. “It’s also the process that we have the least information about.”

A defendant is condemned only after a jury and judge agree that death is appropriate, and death sentences are automatically appealed to California Supreme Court.

Statistics show that jurors usually endorse the prosecution’s request for the death penalty. In 37 capital cases prosecuted in Orange County since 1984, jurors have spared the lives of convicted murderers in nine instances.

Statewide, Orange County ranks third behind Los Angeles and Alameda counties in condemning killers to death.

Of the 381 inmates currently on death row, 27 men and one woman were sentenced by Orange County judges, according to a recent analysis by the state Department of Correction. Orange County killers account for 7.2% of death row inmates.

First Line of Defense

Defense attorneys are not required to appear before the prosecution panel but they typically do. Despite concerns that prosecutors may use the meetings to gain insights into possible defense strategies, attorneys rarely give up the opportunity to plead for a client’s life.

“We really see this as a bargain with the devil,” said Assistant Public Defender Michael P. Giannini, who has appeared before the panel several times and likened the process to a star chamber. “Unless you change their minds, there is no advantage for you as the defense attorney. But you just can’t pass on that chance.”

The tone of the hearings is always intense and emotionally draining, defense attorneys say. Prosecutors are seated around a conference table. Sometimes defense attorneys are peppered with questions. Other times, prosecutors just listen.

“They just sit there like a group of Sphinxes, they are very hard to read, there are very few clues to what they are thinking, but it is not unfriendly, there is no animosity,” said defense attorney Jennifer Keller, who has twice appeared before the committee.

Defense attorneys present anything and everything that might sway the prosecutors--or a jury--including the facts of the case as they see them, details about the defendant’s upbringing, abuse suffered as a child or psychiatric evaluations.

Some attorneys briefly state why death is not appropriate.

“We’ve also had presentations where there are videotaped statements from friends and relatives, paintings, drawings and poetry (by the defendant), certificates of merit, report cards, photo albums,” said prosecutor Rick King, head of the homicide unit of the district attorney’s office and chairman of the death-penalty panel.

Sometimes, defense attorneys are successful.

“I can say there are times where I believe a case is a death-penalty case, but I have changed my mind listening to a defense attorney,” King said. He declined to elaborate.

The committee meets and deliberates behind closed doors. Defense attorneys are notified of the outcome in a a one-sentence form letter--delivered by mail--and sometimes called a “death letter.” No explanation is offered.

“Not knowing always bothers me,” said Keller, who unable to persuade the panel to spare D’Arcy’s life because of his troubled mental history. “I would like to be given more information about what were the deciding factors. I would like to see the whole process opened up more to the public.”

A Dearth of Diversity

Critics say the way prosecutors decide death-penalty cases varies from county to county. In some instances, a single prosecutor decides whether capital punishment will be sought. Critics call for statewide, uniform guidelines on making such determinations. Some also criticize the lack of diversity on the Orange County panel, whose members are all white males.

Of the 28 Orange County prisoners on death row, 16 are white, seven are Latino, three are black, one is Native American and one is Asian.

“Diversity is important in everything, especially a decision like this,” said Sacramento attorney James Thomson, president of California Attorneys for Criminal Justice, who said he has concerns that factors such as race or economic status can play a role in determining whom is targeted for a death sentence.

In Orange County, only experienced prosecutors who have tried death penalty cases are eligible for the panel. As the office’s two female homicide prosecutors and other deputies gain more experience, the makeup of the panel will change, ranking prosecutor Conley said.

“No doubt (diversity) would add an extra dimension,” Conley said. “But we believe experience in determining whether death is appropriate, or predicting how a jury will react, is more important than whether a man or a woman is involved” in making the decision.

Some defense attorneys said that some murder victims appear to be given more “worth” than others when prosecutors are weighing a death penalty case.

“You know when you have a murder involving a child, it’s ‘killing time’ ” for the defendant, public defender Giannini said.

Above all else, Conley said, prosecutors strive to be fair and consistent, judging each case on the facts and the law. Before the panel’s inception in 1985, the decision to seek the death penalty often was left to the prosecutor who took the case to trial, Conley said. The panel was formed to ensure uniformity and provide the viewpoints of more experienced prosecutors, he said.

“It’s a weighing process and everyone is treated equally,” Conley said.

“While I have the final say, it’s very much a group process, and I think we benefit from the long collective memory--and the collective wisdom--of experienced prosecutors,” he said, adding that panel members sometimes disagree, but the majority’s sentiments usually prevail.

The committee’s judgment is sometimes called into question by a jury.

Recently, a jury deliberated one day before sparing the life of Shaleke Nasir, 22, a kick boxer from Orange who was convicted of first-degree murder for bludgeoning, robbing and attempting to rape his girlfriend, Lena M. Forbes, 21.

Jurors said that while Nasir’s crime was heinous, he did not deserve death. His sentencing is pending.

Prosecutors involved in the process say their decisions are never made without careful deliberations.

“This is one of the most important things I do as a prosecutor,” said Deputy Dist. Atty. Robert C. Gannon Jr., head of the major fraud and consumer protection unit, who has also prosecuted numerous homicide and death-penalty cases.

“It’s a very serious undertaking,” King said. “It’s a tremendous responsibility to know that you are participating in a decision that has as its consequence the taking of a life.”

Deciding on Death

The Special Circumstances Committee of the Orange County district attorney’s office reviews certain aggravated murder cases to decide whether prosecutors will seek a death sentence during trial. A jury and judge must agree before a defendant will be condemned.

COMMITTEE MEMBERS

Assistant Dist. Atty. John D. Conley, 52, makes the final decision. Has been a prosecutor for 22 years and member of death penalty panel since its inception in 1985. Secured a death verdict against Thomas Edwards, who killed 12-year-old Vanessa Iberri as she walked with a friend in Cleveland National Forest in 1981.

Deputy Dist. Atty. Rick M. King, 46, head of the homicide prosecution unit and a prosecutor for 13 years. He is chairman of the death penalty panel, on which he has served since 1989.

Deputy Dist. Atty. Lewis R. Rosenblum, 42, has been a prosecutor for 13 years, handled homicide cases for six and been a panel member for two. Successfully prosecuted two capital cases; currently handling two possible capital cases.

Deputy Dist. Atty. Bryan F. Brown, 52, a prosecutor for nearly 25 years, has been on the death penalty panel continuously since 1985, except for a brief stint in private practice. He tried serial killer Randy Kraft, who was sentenced to death for slaying 16 men and boys.

Deputy Dist. Atty. Robert C. Gannon Jr. 49, has been a prosecutor for 12 years and a panel member for three. Tried several high-profile death penalty cases, among them that of Richard DeHoyos, who was sentenced to die for the sexual assault and murder of a 9-year-old girl.

Deputy Dist. Atty. Charles Middleton, 45, has been a prosecutor since 1980 and a panel member since 1988. He has prosecuted six death penalty cases--among them that of Rosie Alfaro, the only Orange County woman to receive a death sentence. Alfaro stabbed a young girl to cover up a burglary.

Deputy Dist. Atty. Mel Jensen, 57, has been a prosecutor for 25 years and a panel member since 1985.

THE SUBJECTS

Capital Criteria

A defendant convicted of first-degree murder and of one or more of 19 “special circumstances” is eligible for capital punishment or a sentence of life in prison without parole. Among these “special circumstances” are multiple murder, murder committed during a felony such as robbery or rape, murder of a police officer or judge, killing for financial gain or torturing a victim.

Cases to Be Considered This Year:

Mark Hilbun, 39: charged with stabbing his mother, Frances, then taking off on a two-day shooting rampage in which his best friend at the Dana Point post office was killed. Hilbun is charged with two counts of murder, seven counts of attempted murder.

Douglas F. Stanley, 57: accused of killing his sister-in-law, Joyce Stanley, and Terry Vasquez, who worked at the Fountain Valley embroidery shop operated by Joyce and her husband, Stanley’s brother.

Jeffrey Gibson, 33: charged with killing his daughter, Amber, and former wife, Kristina. Also charged with attempting to murder Wendy Johnson, who shared a San Clemente apartment with Kristina when the shooting took place.

Pending Cases Panel Has Reviewed:

Jonathan D’Arcy, 31: expected to go on trial later this year. Accused of dousing Karen LaBorde with gasoline and setting her on fire at her Tustin office. LaBorde died the day afterward.

Determination: Seeking death penalty.

Robert Chan, 19: Accused of being the ringleader in the 1992 New Year’s Eve slaying of honor student Stuart A. Tay, who was beaten, forced to swallow rubbing alcohol before being buried.

Determination: Not seeking death penalty.

Timothy L. DePriest, 33: convicted this month of the December, 1989, murder, robbery and attempted rape of a Garden Grove woman. Currently serving life term in Missouri for sexually assaulting a woman and shooting a police officer.

Determination: Seeking death penalty; jury currently impaneled in penalty phase of the trial.

Sources: California State Bar; California Penal Code; court records; individuals involved

Researched by RENE LYNCH/Los Angeles Times