The Power Over Life or Death Sentence

In California, we’re stacking up death-sentence inmates faster than San Quentin State Prison can find places to house them all--556 as of this week, more than double what it was just eight years ago. It’s not Death Row any more, it’s Death Block.

Even so, how would you feel about a moratorium on executions? It’s a national discussion gaining some ground.

Illinois Gov. George Ryan ordered such a moratorium in January, after reports that DNA testing has proved dozens of condemned inmates innocent. And a new national poll released last week indicates that a majority of Americans, though pro-death penalty, now favor a moratorium, until issues of fairness can be resolved.

My own concern about a moratorium is that it sidesteps another critical issue, the unruly and often ludicrous appeals process in death-penalty cases. A 15-year appeal is not unusual, and the burden on the families of murder victims can be unbearable.

But that doesn’t make the fairness issue behind the moratorium any less important.

What’s fair in deciding which should be death cases seems an impossible question to resolve. In my 10 years covering criminal courts here in Orange County, I saw cases of coldblooded executions to the back of the head result in four-year manslaughter sentences. The killers were back on the street before their appeals could even be resolved. Yet others, in murders no more gruesome, wound up with a death sentence.

You kill your girlfriend’s mother for her insurance money, you get Death Row. You kill your spouse so you’re free to marry your girlfriend, you only have to postpone your new wedding by a few years. I covered both those trials in Orange County; the discrepancy is that wide.

Criminal defense attorney William J. Kopeny of Irvine has an idea worth exploring that might find acceptance on both sides of the issue: Let’s give more power to the judges in deciding which cases merit capital punishment.

“The death penalty issue right now is driven by emotion and a desire for revenge,” Kopeny said. “Judges have a better chance of performing the role of dispassionate reason.”

Recommending More Power to Judges

Some people think judges have that power now. But far from it.

For one, it’s a highly misleading perception that judges in California decide whether a defendant gets the death penalty. That power lies with the jury.

You hear this phrase all the time, that a jury “recommends” that a judge sentence a defendant to death. Actually, juries here make no such recommendations. In death-penalty cases, the jurors decide a verdict--either death or life without parole. The judge has no more authority to overturn that verdict than he or she would if the verdict were first-degree murder. In other words, a judge would have to show “just cause” for overturning a jury’s death verdict. It has yet to happen even once in Orange County, which has 43 waiting on Death Row, and three from here executed since the new death law in 1978.

But what Kopeny advocates goes beyond what a judge does at sentencing. He wants judges to decide which cases would even go to trial as special-circumstance cases (which allows a death sentence).

Kopeny, known for his behind-the-scenes work on a number of high-profile cases (serial-killer Randy Kraft, plus one of the Rodney King police defendants), is a longtime foe of the death penalty. No surprise, he favors the moratorium.

“Even those in society who favor the death penalty have two concerns,” Kopeny said. “One is whether the person being executed is guilty, and the other, is the system evenhanded in regards to who has to die?”

Why not wait, his side says, until those issues of fairness can be better resolved?

The national poll on a moratorium was conducted jointly by Republican and Democratic polling firms. But it was released by the Justice Project, a nonprofit group working to prevent wrongful executions.

The Justice Project has taken on a worthy cause. Nobody wants innocent people executed. I just wish we could see a similar justice project taking on the appeals process.

For example, how about a moratorium on any appeals that go beyond 10 years? Close to half of Orange County’s share of condemned inmates--19 out of 43--have appeals that have gone past that length already. There’s something out of whack about that.

Garden Grove cop-killer John George Brown got a new trial last year on the slimmest of technicalities. A second jury returned the same death verdict as his first jury for the 1980 slaying of Garden Grove Police Officer Donald Reed. But now, after 17 years of waiting out Brown’s first appeal, the Reed family must endure at least another 10 years of Brown appeals. That’s 30 years from the time of the officer’s death. How much fairness will they be getting?

If the Justice Project wants to see a nationwide moratorium on executions, it’s going to have to gain broader-based credibility. One way might be to also advocate better balance in the appeals process. Then maybe more people would be willing to listen.

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Jerry Hicks’ column appears Monday and Thursday. Readers may reach Hicks by calling (714) 966-7789 or e-mail to jerry.hicks@latimes.com