COUNTY REPORT. <i> Race, Gender and the Death Penalty</i> : To Some, Death Penalty Rulings Guilty of Bias

Isabel Guzman was shot to death in the alley behind her Santa Paula restaurant after an encounter with a belligerent customer. Jesus Manjarrez was gunned down by marauding gang members in a random shooting at a Moorpark intersection.

Marco Rodriguez was working at a butcher shop in Moorpark when he was shot twice in the back of the head by a robber last May. And Ernest Sanchez, 73, was just sitting at home in Oxnard the day he was stabbed to death by another robber who wanted money for drugs.

In all four cases, the victims were Latino. In all of them, the Ventura County district attorney’s office decided not to seek the death penalty against the assailants. And to many in the Latino and legal communities, these cases dramatize a widespread pattern of discrimination.

Carlos Guzman, who helped police chase down the man accused of killing his wife, is just one of those who question whether there is a pattern of double justice that cuts along racial lines in Ventura County.

He believes the Ventura County district attorney’s office should have sought the death penalty. If Isabel Guzman had been white, he says, prosecutors might have been more likely to try for execution.

“Is that the way justice works?” he asks.

Oxnard attorney Oscar Gonzalez, spokesman for the Ventura County Mexican-American Bar Assn., is another who believes race and gender play a role when authorities are deciding who should live and who should die.

“When a farm worker gets bumped off, who gives a damn?” Gonzalez said. “The bottom line is that race and gender matter, and people have to be aware of that.”

The issue is an old one, debated in legal circles for years and indignantly denied by prosecutors who say they are strictly bound by state law on what cases warrant the death penalty.

The law takes some strange twists, they say. The death penalty can be imposed if somebody uses a bomb or poison in a murder. But the random, motiveless shootings that mark many of today’s homicides just don’t qualify.

“The decision of whether to seek the death penalty is entirely too serious for any professional to think that they would allow racism to enter in,” says Deputy Dist. Atty. Matthew Hardy III, who is prosecuting one of the county’s three capital cases this year.

“It is a manufactured type of complaint,” he said. “You play the race card to attract the media, you play the race card on an appeal.”

“We have never made any death penalty decision based on race or ethnicity of the victim or accused,” Chief Assistant Dist. Atty. Kevin J. McGee adds. “Each case is evaluated on the basis of its own unique facts and in consideration of the totality of circumstances.”

Haun Case Cited

Nonetheless, the allegation that racial and gender bias plays a role in deciding death penalty cases was thrust into public prominence last week more bluntly than ever before by a defense attorney in one of the most publicized murder cases in county history.

In a motion charging that those factors have influenced death penalty decisions over a decade, Deputy Public Defender Neil B. Quinn accused county prosecutors of arbitrarily seeking death against his client, Diana Haun, because the woman she is accused of killing--Sherri Dally--was white.

Quinn asserts that in the past 10 years, eight of nine death penalty cases prosecuted in Ventura County involved white victims. The exception was the slaying of Genoveva Gonzales, a Latino mother of four who was kidnapped, raped and killed in 1992.

During that same period, Quinn said, prosecutors decided to press for the death penalty 86% of the time in seven slayings where victims were women, but only 22% of the time in 18 cases where the victims were men.

“This is a problem that is well-documented,” Quinn said. “This is not something defense attorneys are making up. Everyone wants to think that it doesn’t happen here.”

The numbers don’t surprise Latino advocates.

“What the public defender is saying is the way it is,” said Carmen Ramirez, executive director of the nonprofit Channel Counties Legal Services Assn., which provides legal services for the poor. “The reality is that race does enter into it and all the statistics will show that.”

Quinn’s study targets 24 killings--between Jan. 1, 1987, and Dec. 31, 1996--in which the death penalty could have been sought. In nine cases, one of them the double-slaying of an elderly white couple, prosecutors chose to seek death. Of the 10 victims, six were women, five of them white. The four male victims were all white, including a police officer and an 8-year-old boy.

Although Quinn found that no death penalty decisions were made during that period in cases where the victim was a minority male, he noted in his brief that prosecutors did decide this year to seek the death penalty in the fatal shooting of Ventura County Sheriff’s Deputy Peter J. Aguirre, who was Latino. Ventura defense attorney James Farley is among those who argue that if Aguirre had not been a police officer, prosecutors might not have sought the death penalty.

Bar Assn. Resolution

Quinn’s research coincides with larger regional studies and recent national opinions on the issue of race, gender and the death penalty.

The American Bar Assn. released a resolution Feb. 3 that calls on states to stop seeking the death penalty until problems, including discrimination in capital cases on the basis of race, are addressed.

The resolution states that despite a 1988 policy striving to eliminate such biases, “longstanding patterns of racial discrimination remain in courts across the country.”

A UCLA study commissioned by The Times last year found that Los Angeles County homicide cases involving white victims were more likely to be solved and successfully prosecuted than those involving blacks or Latinos.

The study of willful homicides reported by public agencies in Los Angeles County from 1990 through 1994 showed that in cases where the victim was white, defendants were charged with capital crimes 15% of the time. In cases where the victim was black or Latino, capital charges were filed 7% and 6% of the time, respectively.

“There is plenty of evidence that who the victim is matters,” said Richard A. Berk, the UCLA sociology and statistics professor who conducted the study. “Victims who are male, minorities or gang members are less valued by law enforcement and their cases typically will not get the same treatment.

“The bottom line is that if you kill a minority male gang member you are more likely to get away with it than if you kill a white woman in Beverly Hills.”

Also, defense attorneys argue that it doesn’t help that in Ventura County there are no Latinos or other minorities in management positions in the district attorney’s office to help broaden the view of those making the decision on who should get the death penalty. Only one woman is among Dist. Atty. Michael D. Bradbury’s chief deputies.

“In Ventura County, that decision is made by a bunch of white people because there aren’t any black or brown people there,” said Ventura defense attorney George Eskin. “There are no people of color in [upper management in] the Ventura County district attorney’s office. And in my judgment, that compromises the integrity of the process.”

Citing that lack of racial diversity in his brief, Quinn noted, “This fact may result in unconscious cultural bias that generates more feelings of empathy and outrage when a white victim, a member of the decision maker’s own cultural group, is killed than when the victim is a member of a distinct minority cultural group.”

But prosecutors contend allegations of racial or gender biases are flat wrong, and say there is no secret about the criteria they look at when deciding whether to seek the death penalty. “Our protocol in this area has long been public information, and is based on California’s court-approved death penalty law,” McGee said.

Although he would not comment directly on the allegations in Quinn’s motion, McGee said he disputes the accusation that death penalty decisions are influenced by a victim’s race or gender.

As for criticism of minority representation in the district attorney’s office, McGee said the complaint is misguided.

“For years women were considered as a minority in the legal community and for gosh sakes the assistant district attorney was a woman,” McGee said of Colleen Toy White, who is now a judge. “We have a full spectrum of races and ethnicity in the ranks.”

Since capital punishment was reinstated in 1978 in California, nine men have been sent to Death Row by judges from Ventura County. They represent about 2% of 549 convicts now condemned to die, according to the state Department of Corrections.

Public Pressures

This year, the district attorney is seeking the death penalty against four accused killers: Haun and co-defendant Michael Dally, both charged with kidnapping and murdering Dally’s wife; Michael Johnson, accused of fatally shooting Deputy Aguirre, and Alan Holland, accused of killing Mildred Wilson of Oxnard, a 60-year-old white woman, during a robbery and carjacking.

Defense attorneys say they have long been frustrated by the interpretations of state law used in deciding whether to pursue death penalty cases, because prosecutors in different jurisdictions all respond to public pressures that go beyond actual statutes.

And even within a single jurisdiction, those attorneys say, it is often hard to figure out how authorities go about determining when to ask a jury to put a defendant to death.

Consider the case of John Alvez, convicted of first-degree murder last year in the death of Marco Rodriguez, a Moorpark grocery clerk.

Alvez is serving a life sentence without possibility of parole. He had entered the butcher shop where Rodriguez worked on May 5 on the pretext of installing spice racks. He waited for an opportunity and shot Rodriguez twice in the back of the head before taking about $2,000 from the store’s cash register, prosecutors said.

On the face of it, the killing met at least one of the criteria for a possible death penalty case--a murder committed during the commission of a burglary or robbery.

In July, however, Bradbury announced the death penalty would not be sought against Alvez. Deputy Dist. Atty. James Ellison explained at the time that while the killing was coldblooded, Alvez did not have a criminal record.

Although a criminal record is not one of the criteria required by law for a death penalty move, it is one of the factors considered by Bradbury in deciding whether to seek execution. In some cases, however, Bradbury has decided to seek the death penalty against defendants with no serious prior criminal records.

On the surface, the cases involving Tracy Cain and Wayne S. Ross seem to have at least some similarities: Cain received the death penalty for killing two white neighbors during a robbery. Ross received a lesser sentence for killing a Latino man during a robbery.

In 1989, Cain was charged with bludgeoning his elderly next-door neighbors to death during a robbery to buy drugs. According to court documents, the Oxnard man was in the midst of a cocaine party when the drugs and the money ran out.

He kicked in the door leading to the couple’s house, beat William and Modena Galloway to death with a rocking chair and made off with the couple’s money, spending it on cassette tapes, a new stereo and clothes.

Despite his attorney’s assertion that Cain was too “bombed” to know what he was doing, Cain was sent to Death Row in July 1988.

In a similar case, Wayne Ross of Oxnard was charged in 1986 with stabbing to death an elderly Oxnard accountant during a robbery to generate drug money. According to court testimony, Ross broke into the home of Ernest Sanchez, 73, stabbing him with scissors several times. Ross then fled with a television set, which he used to buy rock cocaine.

None of the stab wounds were fatal, prosecutors said at the time, but Sanchez bled to death. Prosecutors said then that the death penalty was not sought because they did not believe Ross had intended to kill Sanchez. Attorneys say Ross was allowed to plead to first-degree murder, without a special circumstance, and was sentenced to about 25 years to life in prison.

To Oxnard defense attorney Jorge Alvarado, the two cases are close enough to qualify as “prime examples of the inequity in the decision-making process when it comes to who should get the death penalty and who should not.”

But to Chief Assistant Dist Atty. McGee, there are major differences. First, McGee said, Cain killed two people. He had also attempted to rape the wife. In the Ross case, on the other hand, the defense argued that Ross had gone to the Sanchez house without a weapon and had wounds on his hands that suggested Sanchez might have attacked him first with the scissors.

Special Circumstances

Prosecutors stress the death penalty is defined narrowly by statute and only certain murders qualify.

Under state law, there are about 20 special circumstances that if charged make a defendant eligible for capital punishment. Killing a police officer, firefighter, judge or an elected official is an offense punishable by death.

More commonly, slayings committed during robberies, kidnappings or while the defendant was intentionally lying in wait also are eligible for the death penalty. Any intentional killing carried out for financial gain meets the legal standard.

But prosecutors say the statute does not extend to the type of crimes increasingly being reported: random slayings for no apparent reason and gang killings. Isabel Guzman and Jesus Manjarrez were victims of two such crimes.

Felix Magana, the man accused of killing Guzman, was drinking beer at the victim’s Mexican restaurant before the shooting, according to witnesses. After being asked to leave, he allegedly staggered out a back door and confronted Guzman in the alley and shot her.

For prosecutors to have sought a death penalty along with a first-degree murder conviction, they would have had to be ready to show that the Guzman slaying met one of the special circumstances required by state law. There simply were not any, they said.

“The facts didn’t warrant it,” said Deputy Dist. Atty. Greg Phillips, who is prosecuting the case. “It didn’t have anything to do with race.”

Carlos Guzman said he takes a different view. “I think this guy deserves the death penalty,” he said. “Look at it this way, I’m paying taxes to have protection. And then somebody comes and destroys my life. Then I still have to keep going and pay taxes so they can feed and treat this guy well who destroyed my life.”

In the killing of motorist Manjarrez, prosecutors said they looked long and hard for a special circumstance to enhance the punishment.

But proving that Arturo Contreras Jr.--the so-called instigator of the crime spree and driver of the carload of Camarillo gang members--had intended to kill Manjarrez was a tough sell to a jury, prosecutors said.

Furthermore, they could find no special circumstances to pin on the defendant that would make the slaying eligible for the death penalty--though they were closer in the Manjarrez killing than in the Guzman shooting.

“If I could have found a special circumstance on the Contreras case I would have,” said Hardy, who won a second-degree murder conviction against Contreras in September. Contreras will be sentenced next month and faces 20 years to life in prison.

Prosecutors considered a special allegation that Manjarrez’s slaying was committed during a drive-by shooting, a death-eligible offense recently added to the statute. But because his assailant got out of the car before the shooting, the charge would not hold, Hardy said.

“The fact of the matter was in that particular case, and in the gang setting and random-violence killings, there is no category for ‘criminal stupid’ and ‘criminal arrogant,’ ” Hardy said.

Deputy Dist. Atty. Donald C. Glynn has prosecuted four death penalty cases, two of which he sees as contradicting defense attorneys’ claims of race and gender bias: the slayings of Genoveva Gonzales and Tom Urell.

Gonzales was an impoverished mother with four illegitimate children and was an occasional drug user, Glynn said.

But her lifestyle and race had no bearing on the decision to seek the death penalty against her killers, Christopher Sattiewhite and Frederick Jackson, he said. What mattered, Glynn said, were the circumstances of the crime.

Sattiewhite, who shot Gonzales in the head after Jackson raped her, is on Death Row. Jackson was sentenced to life in prison.

The same is true with the killing of Urell, a white, middle-aged executive in a construction firm who was also a cocaine user, Glynn said. “We didn’t worry about that when we filed the case,” he said. “We looked at the criteria.”

Those criteria are spelled out in a four-page policy. When deciding in which cases the death penalty will be sought, Bradbury and his chief deputies sit down with the written criteria and discuss whether the circumstances of the crime warrant capital sentencing, prosecutors said.

Before the meeting, an invitation is sent to defense counsel to submit any written material regarding mitigating circumstances. The decision to seek death is not made “unless the District Attorney concludes that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that death is warranted,” the policy states.

Those aggravations include whether the crime involved a high degree of cruelty or viciousness, whether the victim was particularly vulnerable, and the extent to which the accused deliberated the killing.

Additional factors bearing on whether the death penalty is sought are the views of the victim’s family and whether it is probable the jury will vote unanimously to impose the death penalty, the policy states.

‘Luck of the Draw’

But defense attorneys argue there is no way to ever fairly carry out society’s ultimate punishment.

“It all really comes down to the luck of the draw of the county you’re in,” said Farley, who is defending Michael Dally in the death penalty case and who also plans to challenge the decision to seek the death penalty in the Sherri Dally murder case.

“It’s totally arbitrary,” Farley said. “I personally don’t think the death penalty is a valid form of punishment, partly because of the arbitrary nature of who gets it and who doesn’t. There should at least be some uniform criteria, but I don’t know how you’re going to come up with that.”

Oxnard defense attorney Alvarado agreed that the varying factors that can influence whether a death penalty case should be sought are troubling to many in the legal profession.

In some cases, he believes, tremendous pretrial publicity plays a role in that decision. And in other cases, outside pressure is brought to bear.

Alvarado cited the shooting last year of Sheriff’s Deputy Aguirre. Days after the lawman was gunned down while intervening in a domestic dispute near Ojai, Sheriff Larry Carpenter said he would ask prosecutors to seek the death penalty.

“I don’t think there is any way that the death penalty could ever be applied equally,” Alvarado said. “Every case and every circumstance is different. While the law seems to say that it’s constitutional, it doesn’t mean that it’s right.”

It is an argument that Ventura attorney Wendy Lascher took all the way to the U.S. Supreme Court in 1994--unsuccessfully.

Lascher, who specializes in civil and criminal appeals, mounted a defense of a Shasta County Death Row inmate that called into question the way juries decide whether a defendant should live or die.

Juries aren’t given any meaningful instructions on how to apply the death penalty, Lascher argued. And, she said, there’s no easy way to come up with a formula to help juries reach those decisions.

“The major objections many people have with the death penalty is that every stage of the process is made up of arbitrary decisions, starting with charging,” Lascher said. “So what you get are inconsistent results. That’s why I don’t think we should have a death penalty.”

In the end, she said, she doesn’t believe race plays a significant role when prosecutors are deciding to seek the death penalty. But she says there are other factors just as influential.

“I think the decisions are made carefully in that the D.A.’s office thinks them through a lot more before making them,” Lascher said. “But I think they agonize more about how to prove their cases and whether they stand a chance of winning. But again, ask yourself, should the likelihood of winning be a factor in deciding whether to pursue the death penalty?”

For Quinn, these questions are urgent as his client faces a possible death sentence if convicted at trial later this year.

He has asked Superior Court Judge Frederick A. Jones to order a hearing on the issue. The matter is expected to be discussed March 10 after prosecutors file a response to his motion.

“It is a very real and hot issue,” Quinn said of the questions of race, gender and the death penalty. “The feeling among defense attorneys is that the U.S. Supreme Court will take the issue up again.”