Suit Protests Davis Review of Clemency

Federal public defenders filed a lawsuit Monday asking a judge to prevent Gov. Gray Davis from considering the clemency petition of a death row inmate scheduled to die this month, contending that the governor is biased.

In a move considered a legal longshot, lawyers for killer Stephen Anderson want Lt. Gov. Cruz Bustamante, who also supports the death penalty, to consider Anderson’s clemency petition rather than Davis.

“[The governor] has adopted a policy against any form of leniency for individuals convicted of murder that precludes [Anderson] from receiving a fair adjudication of his request for clemency,” according to the suit filed in San Francisco federal court.

“Governor Davis’ statements and actions provide ample evidence of his extraordinary biases against all sorts of request for leniency by prisoners seeking mercy for serious offenses,” according to the brief filed by public defenders Harry Simon and Margo Rocconi of Los Angeles.

The defense lawyers stress that Davis has turned down all three clemency requests he has received in death penalty cases. And they note that when Davis was interviewed in 1999 about whether extenuating circumstances would play any role when he was considering parole for a person convicted of murder--but not sentenced to death--his answer was “no, zero. . . . If you take someone else’s life, forget it.”

Anderson, 48, is scheduled to be executed Jan. 29 for murdering an 81-year-old woman in San Bernardino County more than 21 years ago.

The San Bernardino County district attorney’s office is vigorously opposing the clemency request.

The Supreme Court has said that some due process protections apply to clemency proceedings. However, governors or presidents have broad leeway in how they use the clemency power.

Several legal experts said it would be unprecedented for a court to strip the governor of his clemency power in a particular case.

“This suit is a real longshot,” said Daniel Kobil, a professor at Capital University Law School in Columbus, Ohio, an expert on clemency law.

The case was filed in San Francisco because Anderson is on death row at San Quentin, which is in the jurisdiction of the federal court for the northern district of California.

The suit was assigned to U.S. District Judge Vaughn Walker, who scheduled a hearing for Thursday on the defense lawyers’ request for a temporary restraining order.

Ward Campbell, a supervising deputy attorney general in Sacramento, said the office would file a swift response on behalf of the governor opposing the suit.

The suit has no merit, Campbell said. “Every court that has ever dealt” with allegations of the type raised in Anderson’s suit “has rejected them,” he said.

Campbell said he was not surprised about the suit, given developments earlier this month.

On Jan. 3, Simon sent a letter to Davis asking that the governor recuse himself from considering Anderson’s clemency petition, filed in late December after the U.S. Supreme Court turned down his last appeal.

“Based upon his public statements and his actions on parole and clemency requests,” Simon wrote, “it appears that Gov. Davis is not a fair and unbiased decision-maker regarding the clemency applications that come before him.”

Barry Goode, the governor’s legal affairs secretary, responded in a letter that the governor would not recuse himself.

“Article V of the California Constitution clearly lodges in the governor the authority to act upon an application for clemency,” Goode noted. He said that Davis “intends to consider Mr. Anderson’s application thoroughly, and to give it the careful, individualized attention it merits.”

The state Board of Prison Terms is scheduled to hear clemency arguments Friday before making a recommendation to the governor. Davis is free to accept or reject the recommendation.

Historically, clemency has been considered an act of grace and has served as a check on courts when a governor or a president believes that an execution would constitute an injustice.

For example, during his eight years as governor, Edmund G. “Pat” Brown commuted the death sentences of 23 killers, while permitting 36 other murderers to die in the gas chamber. The last California governor to grant clemency to a convicted murderer was Ronald Reagan, not long before the Supreme Court ruled the death penalty unconstitutional.

Since the Supreme Court permitted states to reinstate the death penalty in 1976, both Davis and Pete Wilson turned down all the clemency requests they received.

The decision on whether to grant clemency is bound by almost no rules. In California and the 37 other states that have capital punishment, an individual facing execution has a right to apply for clemency. But a defendant’s rights largely stop there.

Some of the factors that have played a key role in grants of clemency are doubts about guilt, concerns about sentencing disparities, perceived unfairness and mitigating circumstances in the inmate’s background.

In a 1998 case, the Supreme Court said that normally courts don’t get involved in reviewing clemency decisions. However, the high court said that some “minimal procedural safeguards” are applicable in clemency proceedings.

Intervention by a court might be warranted, the Supreme Court said, if “a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.”

However, no court has stripped a governor or any state agency of its clemency power in any case since that ruling.

Anderson’s lawyers contend that Davis’ record on clemency and his stance on the issue of leniency for murderers makes him unfairly biased against any clemency request.

“Actual bias falls within the same realm of unfairness as a coin flip, since prejudice offends the due process requirement of fundamental fairness as much as, or more than, arbitrariness,” according to the brief filed by the public defenders.

While saying he was sympathetic to the defense attorneys’ arguments, Kobil said that proving that the governor’s conduct had been “as arbitrary as a coin flip is almost an impossible burden for these lawyers to carry.”