The Defense Never Rests After Verdict of Death Penalty

It was the case he had spent his career as a public defender training for.

But when the jury recommended the death penalty for cop killer Michael Raymond Johnson two months ago, Todd Howeth sat stiffly at the defense table, tears streaming down his face.

He had failed.

Johnson would die.

For defense attorneys, capital cases are the ultimate challenge: A defendant’s life is at stake and you must save him.

But those who have taken on the challenge say the cases take their toll.

Especially when they lose.

“There is a tremendous psychological involvement in trying to save someone’s life,” said Deputy Public Defender Howard Asher, who has handled two death-penalty cases in his career, losing one.

“When the jury comes back with a death verdict, it becomes a sense of personal failure,” he said. “It’s part of you. It dulls with time, but it’s not something you ever forget.”

In the past five years, only two Ventura County cases handled by the public defender’s office have resulted in a sentence of death: Mark Scott Thornton’s in 1995 and Johnson’s last month.

But the county’s death penalty cases have left a small cadre of emotionally scarred lawyers in their wake.

Deputy Public Defender Susan Olson, who defended the then 19-year-old Thornton, has a picture of the young killer hanging on her wall--and a file of letters posted from his death row cell in San Quentin.

Asher, co-counsel on the case, still has difficulty talking about the youth, who is the same age as his own son.

Deputy Public Defender Richard Holly, who blocked the death penalty for Simi Valley cop killer Daniel Tuffree in a 1997 capital murder case, took time off after that case and has not yet returned to defense work.

And Howeth, who literally begged a jury to spare Johnson’s life, says it is only a powerful belief in God that helps him continue in this line of work.

Experts are quick to point out that death penalty cases affect all involved--victim’s families, prosecutors, judge and community.

“It takes a toll on everyone,” said Robert Pugsley, a criminal law expert and professor at Southwestern Law School in Los Angeles. “But the defense lawyer bears a much heavier burden.”

That situation will likely only grow more intense. An unprecedented number of death penalty cases is going through Ventura County courts, and in an interview with The Times earlier this year, Ventura County Dist. Atty. Michael Bradbury said more capital cases are working their way through the system.

Public Defender Kenneth Clayman, who has nine senior attorneys capable of handling death penalty cases, feels confident he will always have enough talented lawyers for whatever demands arise.

But in an age when the public is increasingly demanding the death penalty, experts say there may soon be a shortage of people willing and able to handle death penalty cases.

“I think you are going to see overwork and burnout,” Pugsley said. “The short of it is, lawyers who have the skills to do this work are going to have more work than they have before. The question is how much can you take? There are only so many of these trials in each person’s system in a career.”

Hatred and Self-Doubt

Not quite two weeks after Johnson’s sentencing, Howeth sat in his office in an open-necked shirt--boxes of Johnson files stacked high in the hallway outside--and talked about why he took on the Johnson case, his first death penalty case.

Johnson fatally shot Ventura County Sheriff’s Deputy Peter J. Aguirre Jr. in July 1996 when the 26-year-old officer responded to a domestic disturbance call in Meiners Oaks. Aguirre died before he could draw his gun.

As with many public defenders, Howeth believes fiercely in his ideals: a basic opposition to the death penalty and a zealous belief in the right of society’s disenfranchised to a fair trial.

“It’s not that I believe people who do bad things shouldn’t be punished,” he said. “I believe they should. But our system is the haves, dishing out their conception of justice on the have-nots.”

He says even the guilty people he represents have a certain amount of humanity.

“I believe they all have the spark of God inside them,” he said.

His feeling of humanity does not extend only to those he represents. “I feel great compassion for the victim’s family,” he said.

The pressures that come to bear in a death penalty case can be overwhelming for prosecutors as well, especially when attorneys identify strongly with the victims, as Deputy Dist. Atty. Matt Hardy did with the Aguirres in the Johnson case.

Still, experts say, it is different.

First of all, the prosecutor believes in the defendant’s guilt and, typically, supports the death penalty. And even if he or she fails to secure a death sentence if the defendant is found guilty, the killer usually goes to jail for the rest of his or her life.

Take Deputy Dist. Atty. Don Glynn. He has handled five capital cases and won the death penalty in two. Several of his cases ran back to back. This year he will handle two: He finished the Alan Brett Holland case in February and will begin the Kenneth McKinzie case at the end of this month.

“Just because it’s a death penalty case really doesn’t make the drain any worse than a regular murder case,” he said. “This is the business we’re in, trying murder cases.”

This contrasts sharply with the reality for defense attorneys.

They are, in essence, all that stands between the defendant and execution. And if they lose, unlike the prosecution, they feel a tremendous burden of personal responsibility.

“There are many ways in which a prosecutor can look at her role and say there is shared responsibility,” said UCLA law professor Peter Aranella. “But the life of a human being is not in your hands in the same way that the defense feels that a life is in his hands.”

Inevitably, defense attorneys come to know their clients as people, which intensifies the emotional investment.

“In the course of representation, they may come to believe in the redemptive possibility of individuals,” Pugsley said. “All those various levels of emotion are working on them simultaneously.”

Moreover, much of the public--and even fellow members of the legal profession--do not value the work they do.

During Johnson’s sentencing, Aguirre’s mother, Marie, aimed her final remarks not just at the killer but at Howeth and co-counsel Brian Boles.

“You would bring out Johnson, dressed in fine suits with his hair cut,” she said to the defense attorneys sitting before her. “And you would ask him if he wanted his shirt starched, or mildly starched, when on the floor was a picture of my son, his shirt dirtied and torn.”

Howeth felt demonized.

“It broke my heart to hear the Aguirres fall into the belief that so many people do--that the PDs are not much different than the people they represent,” he said.

For Howeth, the pain of losing the case is still fresh. It manifests itself as constant second-guessing. In fleeting and not so fleeting thoughts about what he could have done differently.

“You become consumed because you are a human being, and you could make a mistake, and someone could die,” he said.

He feels he could have done more to show Johnson was seriously mentally ill--and thus did not deserve to die.

“It is a failing on my part that I did not establish that fact. There were dozens more mental health witnesses I could have called, and I chose not to.”

In handing down their recommendation, jurors said they were not persuaded Johnson was mentally ill.

It bothers Howeth, because he had grown to like Johnson.

“I know he did a horrible, awful thing,” he said. “But when you see someone week after week, month after month, year after year--when he can’t tie his tie because he has handcuffs on, and you help him so he can look decent, and when he says ‘Thank you, I appreciate your efforts,’ you can’t help but become close.”

Sense of Loss

Deputy Public Defender Susan Olson has taken on more capital cases than anyone else in the public defender’s office. She has lost only one.

But three years after a jury convicted Mark Scott Thornton of first-degree murder for killing nurse and mother Kellie O’Sullivan and he received the death penalty, the case still haunts her.

She and Asher are still in touch with their young client.

She writes to him, and he calls her on the phone occasionally. She and Asher have visited him twice at San Quentin and are planning another trip in June.

“I just really liked Mark,” she says. “And I felt very sorry for him, and for the way his family treated him during the trial.”

She said his family rarely visited and gave him no money. During the trial, they did things to sabotage his defense, she said. They wouldn’t even help with information on his medical history, she said.

Olson believes the death penalty is cruel and unusual punishment.

“In Mark Thornton’s case, I felt the abuse he suffered was worthy of the jury’s consideration in deciding whether he should be put to death,” she said. Thornton’s life was shaped by neurological problems and neglect by drug-abusing parents.

Olson pulled out a file thick with letters written in Thornton’s large, childish handwriting.

She held up some of the pen-and-ink pictures he has drawn. One has a rose with a banner running through it, reading “Susan.” “He told me my husband could use it for a tattoo,” she said, laughing.

There is a Polaroid of Thornton taken in front of a crude representation of mountains in Yosemite--mountains, she said, he will never see.

She looked up at the picture of Thornton on her wall, sitting next to her at the defense table, and grew silent for a moment.

“There is not a day that goes by when I don’t think about what I could have done in Thornton’s case to make the outcome different.”

It is perhaps Asher who felt losing the case most keenly. He said he could not get past seeing Thornton as a vulnerable kid.

“The jury sees him as a young, callous killer,” he said. “They don’t see him the way I see him, scared and crying in his cell.”

He said every two to three months he gets a letter from Thornton, telling about a pen pal he met or the latest prison privilege that has been taken away.

He and Olson, along with an investigator in the public defender’s office, have sent Thornton gifts over the years: a typewriter, a television, some stamps.

In a sense, they are the only family Thornton has now. His mother has not gone to see him and his grandmother sees him only occasionally.

Asher says the case permanently dampened his enthusiasm for taking on death penalty cases.

“When he gets the death penalty, a part of you dies,” he said, “that part of you that said ‘I am not going to let this happen.’ ”

He said most ambitious young attorneys aspire to do a death penalty case. He was no different.

“That was part of my sickness,” he said. “But when you do one of them, you realize they take a tremendous toll. Now, when a capital case comes in, I no longer go and pound on [Public Defender Clayman’s] door, saying, ‘I want to do this.’ ”

Deputy Public Defender Neil Quinn, who worked with Olson to defend Diana Haun, has not yet lost a client. But he has watched it happen to friends.

“It has had an effect on everyone I know who has gone through the process,” Quinn said. “No doubt about it, there is a burnout syndrome.”

He says he cannot imagine what it is like to lose in that way. But he still recalls a case that occurred shortly after he arrived in Ventura County.

A bartender was shot in the head in Meiners Oaks. The jury voted 11 to 1 for executing his killer, and the district attorney decided not to retry the case.

“The defense attorneys escaped by the skin of their teeth, but I noticed considerable aging in both of them, and the blank stares. I saw the toll it took,” he said.

4 Cases in Year

In the past year alone, Ventura County juries have been presented with four death-penalty cases: Diana Haun’s, Michael Dally’s, Alan Brett Holland’s and Michael Raymond Johnson’s.

Two more are scheduled to begin this summer: Kenneth McKinzie is accused of killing a 73-year-old Oxnard woman, and Spencer Brasure is accused of torturing a man to death. The trial of Michael Gawlick, suspected in the slaying of a Ventura card club manager, may also be a capital case, Clayman says.

Not all will be handled by the public defender’s office, which must turn down some cases because of conflicts with other clients.

But as the number of death penalty cases increases, public defenders wonder about the effect not just on their own office but on the community.

Many of them voice fears that the death penalty in this county is sought based on the status of the victim than on the crime.

As examples they cite victims Kellie O’Sullivan, a young mother and nurse, and Sherri Dally, a young, blond, mother.

They say many cases in which the death penalty is sought here would not be death penalty cases in urban areas with higher crime rates, such as Los Angeles or Oakland.

“It’s not fair,” Olson said. “It’s not the way the system was supposed to work. It’s unconstitutional. But it’s almost impossible to prove.”

The district attorney’s office has in the past denied the allegation.

Public defenders are also concerned that the penalty phase of capital cases may often be based more on emotion than reason.

They worry that prosecutors whip juries into an emotional frenzy in order to get them to hand down a death recommendation, causing juries to call for sentences they may regret later, when their emotions have cooled.

But more than anything, public defenders feel death penalty cases dehumanize all who touch them.

Howeth points to the Johnson trial as a case in point.

The family is devastated--and was forced to dredge up very private sadness in public. Jurors cried when they delivered their verdict, and almost half of them turned up for an optional counseling session. And prosecutor Matt Hardy, who did not appear at the sentencing after issues about prosecutorial conduct were raised, has not yet returned to work.

“No one got out of that case unscathed,” Howeth said. “The process poisoned everyone involved.”