State Court to Review 2 Murderers’ Parole Cases

The California Supreme Court agreed Wednesday to review two cases that test the extent of the governor’s authority over parole, promising resolution of an issue that could affect the fate of hundreds of imprisoned murderers.

In brief orders released after a closed session, the justices also said that inmates Robert Rosen- krantz and Mark Smith must remain behind bars while their cases are decided by the court.

Rosenkrantz and Smith, both from the Los Angeles area, were convicted of second-degree murder in separate 1985 killings. Both have maintained clean records while incarcerated and have been judged ready for release by the state Board of Prison Terms.

Gov. Gray Davis, however, has blocked their parole, insisting they should serve more time. At issue before the justices is whether the governor’s power to do so is absolute or subject to some level of oversight by the courts.

Legal scholars said the state Supreme Court’s decision to step in signals that the cases involve weighty issues deserving of quick resolution. The outcome, they added, will either boost or dim the odds for many other murderers who claim Davis blocked their release because he has a blanket policy against parole.

During his tenure, Davis has approved only two of 89 parole recommendations forwarded to him by the Board of Prison Terms.

“The court clearly realized that at some point, it had to resolve this issue, because there are so many cases backing up behind Rosenkrantz with the very same elements,” said Peter Keane, dean of Golden Gate University Law School.

The governor welcomed news of the court’s decision. In a statement, he said the court will settle “important constitutional issues regarding the governor’s ability to protect the people of California from murderers who would otherwise be released on parole.”

Attorneys for the inmates had mixed feelings. If the high court had declined to review the Rosenkrantz case, a lower court’s ruling finding that Davis had improperly blocked his parole would have taken effect, immediately setting him free.

Now, Rosenkrantz and Smith must remain behind bars while the court considers their arguments. Their lawyers said they intend to ask the court to expedite the review, but even if that is granted, no decision would be forthcoming for months.

“We’re disappointed in the short term, but we remain pretty confident that we’ll prevail on the merits once the court looks at the facts,” said Donald Specter, an attorney for Rosenkrantz.

Rosenkrantz, convicted of killing a schoolmate who exposed him as a homosexual on the night of his high school graduation, has come to symbolize a widening movement against the governor’s record of blocking parole for murderers judged ready for release by his own parole board.

Shortly after his election, Davis seemed to signal his intentions regarding parole for convicted killers, saying, “If you take someone else’s life, forget it.”

Under an initiative approved by voters in 1988, the governor reviews a murder convict’s parole grant shortly before his or her scheduled release. The governor can modify the grant, reverse it or permit the inmate to go home.

Since Davis’ election, the board has recommended freedom for 89 murderers, or about 1% of all cases that have come before it. Davis has approved parole for just two--both of them battered women who shot their abusers and, the governor suggested, might never have been convicted of murder had the battered women’s legal defense been available at the time of trial.

In the Rosenkrantz case, a state appeals court in January said Davis’ record demonstrates that he has a no-parole policy that does not give each inmate individualized consideration. The court also said the governor’s authority over parole is not absolute under the law.

Davis appealed, landing the case in the lap of the state Supreme Court.

Rosenkrantz, 34, has been in custody since July 23, 1985, when he surrendered for the murder of Steven Redman, 17, who told Rosenkrantz’s parents that he was gay. Fearful that his father would disown him for his sexual orientation, Rosenkrantz fled the family home and purchased an Uzi. A week later, he confronted Redman and demanded that he retract the story. When Redman refused, Rosenkrantz shot him 10 times.

Sentenced to 17 years to life, Rosenkrantz has attracted widespread support in his quest for parole. Legislators have lobbied for his freedom, as have the Superior Court judge who presided over his trial and a detective who investigated the case.

Gay and lesbian groups have characterized Redman’s outing of Rosenkrantz as a hate crime that mitigated the murder that followed.

But in his detailed assessment of the case, Davis said: “The stress Mr. Rosenkrantz felt over disclosure of his homosexuality does not minimize the viciousness of this murder.” In rejecting parole in October 2000, Davis said Rosenkrantz still poses “a significant risk of danger to society.”

Smith, who suffers from AIDS, dementia, heart disease and cancer, was convicted in the killing of Rick Diamonon, who was shot and then drowned in a creek in Topanga Canyon, apparently after an argument over cocaine.

Smith, 46, was declared suitable for parole by the Board of Prison Terms last June. But Davis overturned the decision, calling Smith a “person with little regard for human life.”

“Smith committed a wanton and violent act against another ... for something as inconsequential as an unsatisfactory drug deal,” Davis said.

Last month, however, Los Angeles Superior Court Judge Keith L. Schwartz said there was no evidence to support the governor’s action. He also said that Davis had wrongly labeled Smith one of the killers, rather than an accomplice, and had exaggerated his criminal history.

Davis filed an appeal with the 2nd District Court of Appeal, but the California Supreme Court on Wednesday transferred the case to its jurisdiction for consideration along with the Rosenkrantz matter.

Two justices--Joyce Kennard and Carlos Moreno--said Smith, whose AIDS is terminal, should go free pending action by the court. But they were outvoted by the other justices.

“It’s a shame for Mark Smith that he was not released pending consideration by the Supreme Court,” said his attorney, Rowan Klein. “He is so ill and infirm it’s clear he’s not dangerous to anybody.”