California

California

DPIC Year End Report: New Death Sentences Demonstrate Increasing Geographic Isolation

Nearly one-third (31%) of the 39 new death sentences imposed in the United States in 2017 came from just three counties, Riverside, California; Clark, Nevada; and Maricopa, Arizona, according to statistics compiled for DPIC's annual year end report. In a press release accompanying the annual report, DPIC said that the year's sentences reflect "the increasing geographic isolation and arbitrary nature of the death penalty." Riverside imposed five death sentences in 2017, Clark four, and Maricopa three, and no other county imposed as many as two. The other 3,140 counties and parishes in the country imposed 27 new death sentences, fewer than the record low total of death sentences imposed in the country last year. These three counties were featured in a 2016 report by Harvard University's Fair Punishment Project of the most prolific death sentencing counties in the country. That report found that the death penalty high-use counties tended to share "a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion," among other criminal justice issues. In a recent article about DPIC's year end report published in the Desert Sun, Dunham said, "You don’t see counties that overproduce death penalties and are model citizens in the administration of justice as a whole." Current Riverside County District Attorney Mike Hestrin told the paper that he “strenuously” objected to that characterization, which he called "a bunch of nonsense." Riverside County Public Defender Steven Harmon said that while the county has historically overused the death penalty, Hestrin, who took office in 2015, "has taken a far more measured approach to deciding in which cases he should seek the death penalty.” The Desert Sun reported in 2016 "an astronomical rise in wiretaps" in Riverside county that was "so vast it once accounted for nearly a fifth of all U.S. wiretaps," including triple the number issued by any other state or federal jurisdiction in 2014. Riverside police ranked 9th in the nation in killings of civilians. 76% of those sentenced to death in Riverside between 2010 and 2015 were defendants of color, and during that time frame it imposed death sentences at a rate that was 9 times greater per homicide than the rest of the state. All six defendants sentenced to death in Riverside in 2016 or 2017 were black or Latino. Riverside has imposed more death sentences than any other county in the country over the last five years, and 2017 was the second time in the last three years that it sentenced more people to death than any other county. Its five death sentences constituted 45% of the death sentences imposed in California this year, and more than were imposed by any other state. Four other southern California counties (Los Angeles, Kern, Orange, and San Bernardino) are also among the ten most prolific death sentencers in the past five years, and the region has been dubbed "the buckle of a new death belt." Riverside County alone has imposed 8.5% of all new death sentences in the country since 2013, and the five-county "death belt" has imposed 21.8%. By contrast, Harris County, Texas, which has executed more people than any other county, produced no executions or death sentences this year. Only 15% of all counties in the U.S. have ever imposed a death sentence that resulted in an execution. (Click image to enlarge.)

California Supreme Court Upholds, But Limits, Initiative to Speed Up Death-Penalty Appeals

In a 5-2 decision that left both proponents and opponents of the death penalty declaring victory, the Supreme Court of California has upheld the constitutionality of Proposition 66, a voter initiative intended to speed up death-penalty appeals and executions, but severely limited the scope of its core provisions. In Briggs v. Brown, the court on August 24 sustained portions of the measure that shifted which court will hear capital cases, increased the pool of death-penalty appeal lawyers by requiring lawyers who accept other appellate appointments to also take capital cases, eliminated public review of execution methods, and limited both the issues that can be raised in capital habeas appeals and the time courts have to decide them. However, the majority ruled that the measure’s flagship provision—a five-year deadline on appeals by condemned prisoners—was "directive, rather than mandatory"; that "courts must make individualized decisions based on the circumstances of each case"; and that "prisoners may seek to challenge [the time limitations and limitation on the claims they are permitted to raise] in the context of their individual cases." Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, who argued in support of Proposition 66 in the California Supreme Court, lauded the decision, saying that "Proposition 66 will go into effect almost entirely as written." He called the time limits for deciding appeals a “minor part” of the proposition. Scheidegger said "Californians finally have a chance to see justice carried out in the very worst murder cases." Death penalty opponents sharply disagreed with his characterization. Ana Zamora, criminal justice policy director for the ACLU of Northern California, said “Today’s decision changes nothing. The fact remains that California has not carried out an execution in over 10 years and executions will not resume any time soon.” Christina Von der Ahe Rayburn, who argued the case against the proposition, said the ruling had rendered the deadlines in Proposition 66 "toothless," allowing courts to continue to perform their "critical role in carefully reviewing the appeals of the state's death row inmates, in order to avoid the execution of an innocent person." The justices questioned the efficacy of the proposition and whether it could accomplish its stated aims. "We do not consider or weigh the economic or social wisdom or general propriety of the initiative," the court wrote. "It remains to be seen how effective the procedures enacted by Proposition 66 will be in expediting the capital posttrial review process." Justice Goodwin Liu, concurring in the court's decision, wrote "I find it stunning that Proposition 66’s proponents and the Attorney General claim that the voters intended the five-year limit to be nonbinding or aspirational when that claim is plainly belied by the ballot materials and advocacy campaign for Proposition 66." He said “Proposition 66 contains no plan to compress into five years a process that often takes two decades, and no entity – not this court, not the Judicial Council, not the Legislature – can simply wave a magic wand and make it so.” Santa Clara University law professor Gerald Uelmen, who served as executive director of a state senate commission that undertook a comprehensive review of the state's death penalty in 2008, said several of the provisions in Proposition 66 may actually increase delays in deciding death penalty cases. “It is just going to boggle up the system even more,” he said.

California Court Bars Death Penalty in Mass Killing Because of "Unprecedented" Government Misconduct

Citing "relentless non-compliance" with court orders and "chronic obstructionism" by a prosecution team it says "has effectively compromised" Scott Dekraai's rights to due process and a fair penalty trial, a California trial court has barred prosecutors from pursuing the death penalty in the worst mass killing in Orange County history. In a scathing opinion on August 18, Judge Thomas M. Goethals (pictured)—who had disqualified the entire Orange County District Attorney's office from the case as a result of earlier misconduct and lying to the court about a decades-long practice of using jailhouse informants to violate defendant's constitutional rights—wrote that in light of continued "indolence and obfuscation" from the Orange County Sheriff's Department in response to orders seeking information on the informant scandal, the court had "lost confidence that it can ever secure compliance" by the prosecution with future court orders in the case. Given the "unprecedented" nature of the government misconduct, Judge Goethals wrote, it would "be unconscionable, perhaps even cowardly," for the court not to take remedial action by barring the death penalty. Judge Goethals addressed the emotional toll on the victims' families created by the need to conduct four years of court proceedings investigating the scandal. He said the court would "do what little it can to mitigate their suffering" by imposing eight consecutive life sentences "that will end this case now and insure that this defendant dies a forgotten man in some obscure maximum security prison." Family members in the courtroom expressed anger at county prosecutors. Butch Fournier, whose sister Michelle, Dekraai’s ex-wife, was one of the eight victims, said, "It’s been six years for nothing. ... They caused us pain and suffering that was unnecessary. It was a cut-and-dry case." Orange County Supervisor Todd Spitzer—a former prosecutor who is considered a likely candidate for District Attorney next year—called on District Attorney Tony Rackauckas and Sheriff Sandra Hutchens to resign, saying the conduct of the District Attorney's and Sheriff's offices had been "reprehensible" and constituted an "egregious assault on our criminal justice system." In a statement, Spitzer wrote: "I am appalled that the misconduct of the Orange County District Attorney’s Office, in collusion with the OC Sheriff’s Department, resulted in this miscarriage of justice. I am incredulous that the Orange County criminal justice system has earned a national reputation for corruption that will take years, if not decades, to repair. Fundamental changes are needed." The editorial board of the Orange County Register said "the fact that a death sentence couldn’t even be secured for an admitted mass murderer speaks to the level of dysfunction within the county’s criminal justice system." The Orange County District Attorney's office was named in a July 2017 report by Harvard University's Fair Punishment Project as one of the prosecuting offices cited for repeated prosecutorial misconduct.

Report Finds High Levels of Misconduct in Four Top Death Sentencing Counties

Four counties that rank among the most aggressive users of capital punishment in the United States have prolonged patterns of prosecutorial misconduct, according to a new report by the Harvard-based Fair Punishment Project. The report, "The Recidivists: Four Prosecutors Who Repeatedly Violate the Constitution," examined state appellate court decisions in California, Louisiana, Missouri, and Tennessee from 2010-2015, and found that prosecutors in Orange County, CAOrleans Parish, LASt. Louis City, MO; and Shelby County, TN—all of which currently face allegations of significant misconduct—ranked among the most prolific perpetrators of misconduct in their respective states. Orange and Shelby counties ranked 7th and 13th among the 2% of counties responsible for a majority of death-row prisoners in the U.S. as of January 2013, each having more individuals on their death rows than 99.5% of all counties in the country. In the midst of a scandal on an illegal, multi-decade practice of placing informants next to targeted prisoners to attempt to extract confessions from them, Orange County imposed more death sentences from 2010-2015 than all but five other U.S. counties. St. Louis City ranked 10th in executions from 1976-2012, and Orleans Parish has long been known for its prosecutors' failures to disclose exculpatory evidence to capital defendants, including three cases that have been the subjects of decisions by the U.S. Supreme Court. The statewide misconduct rankings produced by the Fair Punishment Project show that these counties are outliers not only in their heavy use of the death penalty, but also in their patterns of prosecutorial misconduct. Among the types of misconduct found by appellate courts were withholding exculpatory evidence, improper arguments at trial, and hiding deals and favorable treatment offered to informants in exchange for their testimony. In one case from St. Louis, prosecutors: suppressed evidence in the death-penalty trial of Reginald Clemons that would have supported Clemons' claim that he confessed only after having been beaten by police; never disclosed the existence of a rape kit that could have identified the perpetrator; and presented testimony in a co-defendant's trial that another person had committed acts attributed to Clemons at his trial. Longtime prosecutor Nels Moss, Jr. also advised police officers to omit certain observations that were initially included in their reports. Clemons was convicted and sentenced to death, but was awarded a new trial—scheduled for 2018—because of this misconduct.

Sheriff Admits Improper "Activity" in Orange County, California Snitch Scandal

Orange County, California Sheriff Sandra Hutchens appeared before Superior Court Judge Thomas M. Goethals (pictured) on July 5 to explain her department's 4-1/2-year failure to comply with court orders directing the department to produce documents related to a multi-decade practice in the county of misusing prison informants to illegally obtain incriminating statements from accused defendants. In May 2015, Judge Goethals barred the entire Orange County District Attorney's office from participating in the sentencing of Scott Dekraai—who has pleaded guilty to eight killings in a Seal Beach salon in 2011—for withholding evidence about the informant program and lying about its existence. Hutchens—who was appointed sheriff in 2008 following the conviction of the prior sheriff on corruption charges—denied that her office had systemically housed informants with targeted defendants, calling the description of the office's practice “a matter of semantics." “There is no program, per se,” she said. “There is activity.” Deflecting responsibility for the illegal questioning of defendants by informants and the destruction of logs describing the informant program, Hutchens said “There may have been a few deputies who took their duties to different levels than were authorized.” She explained her department's failure to turn over documents whose production had been ordered by the court by saying of her subordinates, “They possibly did not look hard enough.” Hutchens testimony came a week after Sheriff's Deputy Jonathan Larson testified that officers in the Sheriff's Department's Special Handling Unit had been tasked with developing snitches and intentionally placing them near pretrial prisoners to obtain confessions. Larson said he had "assumed" the practice was allowable because it was "approved by our sergeants and lieutenants." Larson also testified that he was certain he had made entries in the Special Handling Unit's log during a four-month period in 2011 that is now missing from the record. Lieutenant Mike McHenry had previously testified that perhaps all of the deputies in the unit simply forgot to make entries during that period. Orange County was one of the 6 most prolific producers of death sentences in the U.S. from 2010 to 2015, a period included in Judge Goethals' investigation into misconduct by the Sheriff's Office and the District Attorney's Office. The sentencing of Dekraai, which brought the informant scandal to light, is now being handled by the California Attorney General's Office, which intends to continue pursuing the death penalty. Bethany Webb, whose sister, Laura Webb-Elody, was allegedly killed by Dekraai, wrote an op-ed for The Los Angeles Times opposing the death penalty in the case. "Over and over again, the authorities have tried to bring families closure through the death penalty, but have succeeded only in keeping old wounds open," she wrote. "Through these painful years, it’s become clear that personal and political ambition have so corrupted the death penalty process that it does not serve us, nor does it serve the interests of justice."

STUDIES: Rarity of Executions Makes California Jurors Less Likely to Impose Death Sentences

A study published in The Yale Law Journal provides new evidence that, as public opinion continues to shift away from the death penalty, juries empaneled in capital cases may become even less representative of the community and even more prone to convict. The studyconducted by Professors Brandon Garrett (University of Virginia), Daniel Krauss (Claremont-McKenna College), and Nicholas Scurich (University of California Irvine)—found that with increased public opposition to the death penalty, more prospective jurors may be excluded from serving on capital juries because of their views against the death penalty. The researchers surveyed people reporting for jury duty in Orange County, California about their views on the death penalty itself and on the impact of the rarity of executions in California. Orange County is one of the ten most prolific death-sentencing counties in the United States and was one of just 16 U.S. counties that imposed five or more death sentences from 2010 to 2015. But despite those facts, about one-third (32%) of those surveyed said they would automatically vote for life without parole in the sentencing phase of a death penalty case. This view would make them excludable from a capital jury in a process known as death qualification, a result that the authors said, "raises new constitutional questions concerning [death qualification's] effect on the ability to secure a fair cross-section of the community in the jury venire." The researchers also found that nearly one in four jurors (24%) said that, as a result of their concerns about the death penalty, they would "refuse to vote for murder in the first degree merely to avoid reaching the death penalty issue." These so-called "nullifiers" would also be excludable from the jury, producing a jury that would be more prone than the overall population to find the defendant guilty. But at the same time that death qualification "excludes far higher percentages of the population than ever before," the researchers found that it "also has become an even less predictable prosecution tool, because even many stated death penalty proponents now harbor serious doubts about the death penalty." Finally, researchers asked the jurors whether the fact that California has not carried out an execution since 2006 would make them more likely or less likely to impose a death sentence. 67% of those surveyed said it made them less likely to vote for death. The authors urge further research into jury attitudes about the death penalty and conclude, "These findings have implications for how we should think about punishment as well as the Eighth Amendment in the area of the death penalty, but also far more broadly. Perhaps unusual punishments appear cruel or unsupported due to their rarity in practice."

California Agency Rejects Proposed Execution Protocol

In a new setback to efforts to restart executions in California, the state's Office of Administrative Law (OAL) has rejected the new lethal injection protocol proposed by the California Department of Corrections and Rehabilitation. On December 28, 2016, the OAL, which is responsible for reviewing regulatory changes proposed in California, issued a 25-page decision of disapproval, citing inconsistencies, inadequate justification for certain parts of the proposal, and a failure to adequately respond to public comments. The agency gave the Department of Corrections four months to address problems in the protocol. The proposed protocol would have changed California's previous three-drug procedure to a one-drug procedure, calling for 7.5 grams of one of four barbiturates. The OAL questioned whether the 7.5 gram dose met California's requirement that a regulation be "necessary," noting that corrections officials had said 5 grams of the barbiturate would be lethal and had provided no rationale as to why they chose a larger dose. It also requested clarification of numerous ambiguities in the new regulations, including the steps taken by correctional officials in the days leading up to the execution, what steps would be taken during the course of an execution if the prisoner did not immediately die, and what would be involved in monthly inspections of the execution chamber. Among the inadequate responses to public comments, the OAL noted that "[t]he Department's response does not address the issue of 'using methods that are untested or poorly understood' or 'human experimentation' as it pertains to the use ... for lethal injection purposes" of two of the drugs in the protocol. Executions in California have been on hold since 2006 because of legal challenges to the state's lethal injection procedure. In November, voters narrowly passed Proposition 66, which proposes to speed up executions. Implementation of that proposition was blocked by the California Supreme Court, pending the outcome of a lawsuit.

OUTLIER COUNTIES: Orange County, California Plagued by Misconduct Scandals

Orange County, California imposed nine death sentences between 2010 and 2015, more than 99.8% of American counties, and ranking it among the 6 most prolific death-sentencing counties in the country during that period. Over the last four years, patterns of misconduct have been revealed in the Orange County District Attorney's Office, sheriff's office, and crime lab. In 2015, Judge Thomas Goethals disqualified District Attorney Tony Rackauckas (pictured) and the entire prosecutor's office from participating in the capital trial of Scott Dekraai because of systemic police and prosecutorial misconduct involving the deliberate and undisclosed use of prison informants to unconstitutionally elicit incriminating statements from defendants. A California appeals court, citing "[t]he magnitude of the systemic problems" in Orange County and the "cozy relationship" between local prosecutors and the sheriff's office, upheld the trial court's order. The sister of the victim in Dekraai's case asked the office to stop seeking the death penalty because the mishandling of the case had led to five years of delays. She called the death penalty a "false promise" for victims' families, yet the office continued to pursue a death sentence. Judge Goethals' ruling prompted the passage of a California law giving judges greater authority to remove prosecutors from cases in which they have committed misconduct, and to report misconduct to the state bar. It also led to a special committee report on the Orange County District Attorney's Office, which found a "failure of leadership" at the root of the misconduct, along with a "win-at-all-costs mentality." In mid-December, the U.S. Department of Justice announced it was opening an investigation into the county's use of jailhouse informants. Meanwhile, a motion by the Orange County Public Defender's Office filed in September accused the county crime lab of doctoring testimony to benefit the prosecution, after a senior forensic analyst offered contradictory testimony in two separate murder trials, each supporting the prosecution's case. Recent death sentences in Orange County show patterns of bias and dispropotionality. 89% of those sentenced to death from 2010-2015 were people of color, and 44% were Black, though Blacks make up just 2% of Orange County's population. Half of the 24 cases decided on direct appeal from 2006-2015 involved defendants with serious mental illness, brain damage, intellectual impairment, or who were under age 25 at the time of their crime.

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