Judge Criticized Over 4-Month Delay in Murderer’s Sentencing : Courts: Family of Valencia victim says jurist doesn’t want to hand down death penalty recommended by jury.

Five months ago, a jury decided that a prison parolee who abducted and murdered a Valencia man deserves to be put to death.

But 24-year-old Scott Forrest Collins is still in county jail, awaiting the formal sentencing.

The family of Fred D. Rose, who was shot in the back of the head, believes there is one simple reason why Superior Court Judge Leon Kaplan hasn’t sent Collins to Death Row.

“I don’t think he wants to sentence him to the death penalty,” said Sharon Rose, wife of the slain construction supervisor.

Prosecutors say the four-month delay in this case is unusual, noting that actions by the judge, and not the defense attorney, have delayed the sentencing. The judge, who has never handled a death penalty case before, has requested that defense attorney Bruce Hill write memos concerning possibly inappropriate conduct during the trial by prosecutors and members of the court audience.

Kaplan’s requests for additional paperwork have come during several hearings and were not solicited by the defense. In all, Kaplan has conducted six post-trial hearings which have delayed a sentencing originally scheduled for Dec. 2.

“To me, (Kaplan) has no courage and he should not be sitting on the bench,” Sharon Rose said. “He’s not for preventing crime.”

Kaplan declined to comment on the case, citing ethical rules which bar judges from commenting pending a case in their courts.

Collins is again scheduled to be sentenced today, but Kaplan must first rule on a request for a new trial, a motion filed in nearly every serious case.

Prosecutors and members of the victim’s family firmly believe Kaplan will order a new trial in Collins’ case, this to avoid the difficult chore of sentencing someone to die.

“I’m very concerned that the judge will not in fact follow the jury’s recommendation,” said Deputy Dist. Atty. Lea Purwin D’Agostino, who added that jurors have contacted her to express “their dismay.”

If Kaplan wants to retain his position on the bench, the Rose family has warned, he should hand down the death sentence. If not, he should prepare to suffer the wrath of victims advocacy groups who, according to Sharon Rose, will challenge him when he comes up for reelection and take the judge “on a roller coaster ride that will last (his) entire life.”

Collins was found guilty of first-degree murder in the Jan. 23, 1992, execution-style slaying of Rose, a Valencia resident and father of three who was shot only one month after Collins was released from prison. The jury also convicted Collins on two special circumstance charges, murder during a robbery and a kidnaping, both of which made him eligible for the death penalty.

The same panel that convicted Collins on Sept. 30 later determined that death was the appropriate punishment. The jury made its formal recommendation to Kaplan on Nov. 2.

Under California law, if a jury recommends death, the judge must act like a 13th juror and independently weigh the evidence presented during the penalty phase. It is extremely rare for a judge to overlook the death recommendation and hand down the only other possible sentence in a special circumstance murder case--life in prison without the possibility of parole.

Based on their observations, Rose family members feel Kaplan is acting as if he is the attorney who will represent Collins during the inevitable appeal. They point to Kaplan’s three-day review of the nearly 7,000 pages of trial transcript, while in open court, and recommendations he made to defense attorney Hill about specific points to make during his motion for a new trial.

The constant delays have been widely discussed among prosecutors in the Van Nuys courthouse, many of whom believe Kaplan is looking for a way to avoid issuing an execution order.

“This is a classic case of justice delayed,” D’Agostino said. “Did the defendant wait five months until he killed the victim?”

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Last year, Collins’ attorney made a motion for a new trial, a request initially based on action by the jury during deliberations. Two jurors used a protractor and string--and what Hill characterizes as erroneous evidence--to determine Collins shot Rose while the victim was on his knees.

When Hill first appeared to argue his motion, Kaplan raised other issues, pointing out that he observed D’Agostino and courtroom observers making inappropriate faces during the trial. After being “encouraged to brief those issues” by the judge, Hill was forced to amend his motion, or else face possible accusations of malpractice.

“It is this type of behavior that has caused the public to lose faith in the criminal justice system,” D’Agostino said.

Sharon Rose said she has been demoralized by the wait. “My heart is totally immobilized,” she said. “It does affect how we get on with our lives.”