Second thoughts of a ‘hanging judge’
In 1978, the first time Jerry Brown was governor of California, he appointed me to a judgeship in the Superior Court of Orange County. It was a gutsy move on his part, a liberal Democrat naming a right-wing Republican to the bench. I served there until 1993, after which I sat on assignment on death cases throughout California.
During that time, I presided over 10 murder cases in which I sentenced the convicted men to die. As a result, I became known as “the hanging judge of Orange County,” an appellation that, I will confess, I accepted with some pride.
The 10 were deemed guilty of horrifying crimes by their peers, and in the jurors’ view as well as mine they deserved to die at the hands of the state. However, as of today, not one of them has been executed (though one died in prison of natural causes).
I am deeply angered by the fact that our system of laws has become so complex and convoluted that it makes mockery of decisions I once believed promised resolution for the family members of victims.
That said, I have followed the development of legal thinking and understand why our nation’s Supreme Court, in holding that “death is different,” has required that special care be taken to safeguard the rights of those sentenced to death. Such wisdom protects our society from returning to the barbarism of the past. And though I find it discomfiting and to a significant degree embarrassing that appellate courts have found fault with some of my statements, acts or decisions, I can live with the fact that their findings arise out of an attempt to ensure that the process has been scrupulously fair before such a sentence is carried out.
I can live with it and, apparently, so can the men I condemned. The first one, Rodney James Alcala, whom I sentenced to die more than 30 years ago for kidnapping and killing 12-year-old Robin Samsoe, was, just last year, again sentenced to death for killing Samsoe and four other young women who, it has subsequently been determined, were his victims around the same time.
I need not go into the permutations of Alcala’s legal journey. Behind bars since 1979, he has not harmed, nor can he harm, any other young women. But harm has been done, and that’s what infuriates me. Robin Samsoe’s mother has been revictimized time and time again as the state of California spent millions upon millions of dollars in unsuccessful attempts to finally resolve the case against her daughter’s murderer.
Had I known then what I know now, I would have given Alcala and the others the alternative sentence of life in prison without the possibility of parole. Had I done that, Robin’s mother, Marianne, would have been spared the pain of 30 appeals and writs and retrial. She could have dealt then and there with the fact that her daughter’s killer would be shut away, never again to see a day of freedom, and gone on to put her life together. And the people of California would have not have had to pay many millions of tax dollars in this meaningless and ultimately fruitless pursuit of death.
It makes me angry to have been made a player in a system so inefficient, so ineffective, so expensive and so emotionally costly.
I watch today as Gov. Brown wrestles with the massive debt that is suffocating our state and hear him say he doesn’t want to “play games.” But I cringe when I learn that not playing games amounts to cuts to kindergarten, cuts to universities, cuts to people with special needs — and I hear no mention of the simple cut that would save hundreds of millions of dollars, countless man-hours, unimaginable court time and years of emotional torture for victim’s family members waiting for that magical sense of “closure” they’ve been falsely promised with death sentences that will never be carried out.
There is actually, I’ve come to realize, no such thing as “closure” when a loved one is taken. What family members must find is reconciliation with the reality of their loss, and that can begin the minute the perpetrator is sent to a prison he will never leave. But to ask them to endure the years of being dragged through the courts in pursuit of the ultimate punishment is a cruel lie.
It’s time to stop playing the killing game. Let’s use the hundreds of millions of dollars we’ll save to protect some of those essential services now threatened with death. Let’s stop asking people like me to lie to those victim’s family members.
The governor doesn’t have the power to end the death penalty by himself, but he can point the way. He could have a huge financial impact on California by following the lead of Illinois and commuting the sentences of the more than 700 men and women on California’s death row to life without parole.
Donald A. McCartin is a retired Superior Court judge.
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