Years of Deliberate Foot-dragging by California State Officials on Death Penalty Ends With Announcement of One Drug Protocol

By Michele Hanisee

After years of deliberate foot-dragging by state officials who refused to adopt an execution protocol to avoid the uncomfortable possibility of anyone actually being executed, Governor Brown will soon announce that California, once again, has an execution protocol.  This progress was not motivated by the fact that an initiative to end capital punishment was defeated by voters in 2012.  Nor was it the 49 new death verdicts handed down by California juries since the defeat of Proposition 34.  In the end, it was a lawsuit by crime victims that forced a state agency to do what it is supposed to do – enforce the law.

Thankfully, it appears that the state will finally opt for the single-drug lethal injection method that death penalty opponents and proponents alike have documented as being a more humane and reliable method of execution.

California’s last execution occurred over 9 years ago when Clarence Ray Allen was executed for a triple murder.  Allen was already serving a life sentence for the murder of Mary Sue Kitts who he had killed to prevent her informing on him for a robbery he had committed at Fran’s Market in Fresno.  While in Folsom Prison, Allen conspired to murder three of the witnesses who had testified against him at trial.  When Allen’s co-conspirator, Billy Ray Hamilton was paroled, Hamilton drove to Fran’s Market where he executed the owner’s son, Bryon Schletewitz, and two teenage employees with a shotgun.

Attempt to Circumvent the Law

The sordid history of this attempt to circumvent the law began in 2006 when convicted murderer Michael Morales filed a lawsuit under the 8th Amendment challenging California’s three-drug protocol on the eve of his execution, claiming it was cruel and unusual.

Morales, is on death row for the rape and murder of 17-year-old Terri Winchell.  Morales first tried to strangle Winchell to death with a belt, then beat her on the head with a hammer, crushing her skull. He then dragged the unconscious, but still living girl into a vineyard where he raped her.  After raping her, Morales stabbed Winchell multiple times.

Experts at the court hearings testified that a single-drug method of execution using an anesthetic alone would avoid the problems that the petitioners claimed were inherent in the three-drug method.  Federal Judge Jeremy Fogel, ordered a conditional stay of execution that would have permitted the state to execute Morales if the state used the single-drug method.  During the lawsuit, Judge Fogel requested the California Department of Corrections and Rehabilitation (CDCR) to enact a new protocol and encouraged the state to consider the single-drug method then being successfully used in other states.

Numerous other states had, by that time, switched to a single-drug method of execution and performed executions without any problems.  Motions to stay those executions were denied by the 9th Circuit Court of Appeals and the U.S. Supreme Court.  Inexplicably, California developed a new protocol that once-again, called for a three-drug method of execution.  The state began the process of enacting the regulation, which required review under the Administrative Procedures Act.

For the 99.999% of people unfamiliar with the Administrative Procedures Act (APA), it is a state law created with the laudable goal of requiring state agencies to consider input from those who would be affected by a proposed regulation.  The APA allows individuals to comment on a proposed regulation or suggest alternatives.  It also requires the state agency to respond meaningfully to all comments and suggestions.

Predictably, when CDCR began the APA process to enact the new execution protocol, it was flooded with over 30,000 comments from death penalty opponents, each of which required, by the terms of the APA, a meaningful response.  In December of 2011, Judge Faye D’Opal found that the state failed to respond meaningfully to each and every public comment and failed to consider meaningfully a single-drug method as an alternative to the three-drug method the state was then clinging to.

In response, the State of California did—nothing; for the nine years since it was suggested by experts and recommended by a federal judge, the State made no attempt to adopt an effective one-drug method. It took a successful 2014 lawsuit by Bradley Winchell and Kermit Alexander, who have family members killed by those on death row, to force the State to act.  The lawsuit was settled when the State agreed to begin development of a new protocol within 120 days of the U.S. Supreme Court’s ruling in Glossip v. Gross.

The Midazolam Issue

Glossip v. Gross was a U.S. Supreme Court case in which Oklahoma death row inmates challenged Oklahoma’s use of a two-drug method of execution that used midazolam as the sedative.  Midazolam, the lawsuit claimed, fails to fully sedate inmates and provide the level of deep unconsciousness that surgical grade barbiturates produce.  The petitioners pointed to Oklahoma’s “botched” execution of Clayton Lockett who failed to die promptly after the drugs were administered but died, some 43 minutes later of a heart attack.  It was later found that the problem arose from an improperly placed I.V.  The U.S. Supreme Court denied the petition and upheld as Constitutional Oklahoma’s two-drug method using midazolam.

New Protocol

California finally started paying attention.  The new protocol to be announced by the Governor is a single-drug method that does not call for midazolam, but instead uses, tried and true, surgical-quality barbiturates.  This method, which many other states have already switched to, is the same method used to humanely euthanize our beloved pets.  The drugs used in California’s new protocol are the same class of drugs used to provide a merciful end of life to terminally ill patients in Oregon, Washington and Vermont, where assisted suicide has been legal for years.  It is presumably the same drugs that will be used to end life under the new Death With Dignity Act that Governor Brown just signed into law.

There are 17 inmates on California’s death row who have exhausted all appeals and are eligible for execution.  As detailed below, their crimes are brutal, and it has only been as a result of deliberate attempts by California officials to sabotage capital punishment that they have not yet been executed.  As we discuss the resumption of capital punishment, it is critical to remind the public of the horrific crimes which resulted in juries voting to impose death.

17 Acts of Horror

Albert Brown was sentenced to die for the rape and murder of a California high school student. Brown abducted 15-year-old Susan Louise Jordan while she was on her way to Arlington High School in Riverside. He had been posing as a jogger on the route. After dragging her to an orange grove, Brown brutally raped and sodomized her and strangled her to death with her own shoelace; he also took her identification cards and school books. After finding the family’s number in a phone book, Brown called Angelina Jordan from a payphone to tell her where he left her daughter’s body.  According to court documents, he said: “Hello, Mrs. Jordan, Susie isn’t home from school yet, is she? You will never see your daughter again. You can find her body on the corner of Victoria and Gibson.” Susan’s body was found after Brown repeatedly made calls to the Riverside Police Department and the Jordan residence.

David Raley was convicted of first-degree murder in the death of Jeanine Grinsell on February 2, 1985, in San Mateo County. The jury also found Raley guilty of attempted murder of a second girl who survived the ordeal, Laurie McKenna, then 17.  Raley, who worked as a security guard at the Carolands mansion, stabbed both girls dozens of times, then locked them in the trunk of his car and went home to play Monopoly with his family. Later, thinking they were both dead, he dumped both girls in a nearby ravine. McKenna, bloodied and battered, pulled herself out the next morning and flagged down a passing car. At the time, both girls were still alive but Grinsell was later pronounced dead in a hospital. An autopsy disclosed 41 stab wounds and a skull fracture.

Douglas Mickey killed Placer County residents, Eric Hanson, 29, and Catherine Blount, 19. The two were killed in their rural home off Wise Road in Ophir. Mickey first bludgeoned Hanson with a baseball bat and slit his throat from ear to ear down to the spinal cord. He then stabbed Blount seven times in the chest. Three of the blows pierced her heart. Mickey left the house, taking substantial property with him, and drove away in Hanson’s Volkswagen.

4. Fernando Belmontes, Jr. – Date of crime: 1981

Fernando Belmontes drove to the San Joaquin Valley home of acquaintance, Steacy McConnell, hoping to steal her stereo while she was out. Unfortunately, Belmontes had miscalculated, and McConnell was home – and in an apparent effort to do away with the only witness to his crime, Belmontes pounded her head 15 to 20 times with an iron dumbbell, crushing her skull. McConnell’s parents arrived home later to find their 19-year-old daughter dead on the floor in a pool of blood. Meanwhile, Belmontes and two accomplices had sold McConnell’s stolen stereo for $100 and bought some beer.

Harvey Lee Heishman III was convicted of the first-degree murder of Nancy Lugassy, with the special circumstance that she was a witness to a crime who was intentionally killed to prevent her testimony. Nancy lived in a cottage in Oakland. On July 22, 1979, about 11 p.m., she ran screaming to her neighbor’s and said she had just been raped. On August 9, she unhesitatingly selected Heishman’s picture from a photo lineup. She continually expressed fear of him. On August 10, a complaint was filed against him on the rape charge. While out on bail, Heishman returned to Lugassy’s home and shot her to death.  Heishman was identified as the killer by two women who testified, under grants of immunity from prosecution, that they were involved in his murder plot.

James Nelson Blair was convicted on July 19, 1985, of the attempted murders of Dorothy Green and Rhoda Miller by placing cyanide in a bottle of gin from which they drank. He was sentenced to a term of 14 years and 4 months, and his conviction and sentence were affirmed on appeal. In October 1986, after Dorothy Green died as a result of complications from the poisoning, Blair was charged with murder. On May 2, 1989, a jury found him guilty of murder in the first degree and found true the special circumstance that he intentionally killed the victim by poison.

Kevin Cooper killed Bill Hughes in cold blood.  Bill Hughes arrived at the home in Chino Hills where his 11-year-old son Christopher had spent the night with his friend, Josh Ryen. Inside, he found Douglas and Peggy Ryen, their 10-year-old daughter Jessica and his own son dead. They had been chopped with a hatchet, sliced with a knife, and stabbed with an icepick. Josh, the 8-year-old son of Douglas and Peggy, had survived. His throat had been cut. The family station wagon was gone. Hours before he was to be put to death in San Quentin in 2004, the Ninth Circuit Court of Appeals gave Cooper a stay, allowing the defense to file more motions and eventually conduct new DNA results. Those tests found his DNA on several key pieces of evidence, supporting his guilt.

Michael Angelo Morales murdered 17-year-old Terri Winchell on January 8, 1981. Winchell’s boyfriend at the time was also secretly involved in a gay relationship with Richard Ortega, a cousin of Morales. Ortega hired Morales to kill Winchell so that Ortega could have an exclusive relationship with his male lover. Ortega invited Winchell to accompany him on a shopping excursion. Morales, who was also in the automobile, attacked Winchell and tried to strangle her with his belt. When the belt broke, Morales then struck her multiple times in the head with a hammer, beating her into unconsciousness, and crushing her skull. Ortega and Morales then drove to an isolated area, where Morales dragged Winchell facedown across the road and into a vineyard, where he raped her and stabbed her four times in the chest. Winchell died from both the head and chest wounds.  The police found Morales’ broken belt, containing Terri Winchell’s blood, the hammer bearing traces of blood and Terri’s purse and credit card in Morales’ home.  Morales had used $11 from Terri’s purse to buy beer, wine, and cigarettes on the night of the murder.

After robbing and shooting to death his two co-workers at a South Carolina Domino’s Pizza, Mitchell Sims and his girlfriend Ruby Padgett fled to California to continue the murder spree.  Mitchell Sims rented a Glendale motel room then ordered a Domino’s pizza.  When pizza deliveryman, John Harrington, entered the motel room, Sims and Padgett held him at gunpoint.  They then hogtied Harrigan, shoved a sock in his mouth, put a pillowcase over his head and tied a shoelace so tightly around Harrigan’s neck that it would have caused strangulation.  But while Harrigan was still alive, Sims placed him face-down in a bathtub full of water.  After watching Harrigan’s last struggle for life, Sims put on Harrigan’s uniform, and went to the Domino’s where Harrigan worked.  Sims robbed the two other employees and then left them locked in the freezer, bound in such a way that they were forced to stand on tip-toe to avoid hanging themselves. Sims and Padgett were apprehended in a Las Vegas motel room with the cash bag from the Glendale Domino’s and the Las Vegas Yellow Pages listing for local Domino’s Pizza.

Richard Samayoa beat Nelia Silva to death with a wrench in the course of burglarizing her home. Samayoa also beat to death Nelia’s two-year-old daughter, Katherine. The pathologist estimated that Nelia was struck in the head 24 times. The jury heard testimony that the faces of both mother and daughter were smashed in, their skulls crushed, and fragments of bone penetrated their brains. It is undisputed that Samayoa left Nelia and Katherine naked from the waist down – he said he did that to make the crime look like a rape – and then he stole jewelry from the Silva house that he gave away as gifts to members of his family. The mutilated bodies of both victims were found by Rolando Silva, Nelia’s husband and Katherine’s father.

Four days after a San Francisco judge released Robert Fairbank without bail on a rape charge,  Fairbank waylaid 24-year-old graduate student Wendy Cheek as she was on her way to a party.  Fairbank, raped Cheek then stabbed her with multiple objects, described by the coroner as being consistent with a knife, a Phillips-head screwdriver,  and a barbecue fork.  Fairbank then set Cheek’s body on fire.

Apparently despondent over the termination of his relationship with Cindy Gleason, Ronald Deere shot and killed the husband and two young children of Ms. Gleason’s sister, Kathy Davis. Defendant had previously threatened to kill “everyone” in Ms. Gleason’s family if she stopped seeing him. Shortly before the killings, Ms. Gleason received a telephone call from defendant telling her that “I’m not going to be responsible for what I do today.” Later that night, Ms. Gleason and Ms. Davis discovered the bodies of Don, Michelle and Melissa Davis in Don’s trailer. Deere fled and hid from the police; he was arrested several days later.

In December of 1981, Donald MacVicar and Lauren de Laet sought to buy cocaine from Royal Hayes. Instead, Hayes and his co-conspirators lured the two to a secluded location in the woods where Hayes had already dug graves.  Hayes shot each victim in the head and buried them.  Nearly two months later, a mushroom hunter discovered fragments of what later turned out to be de Laet’s skull.

Scott Pinholster was convicted of murdering Robert Beckett, 29, and Thomas Johnson, 25, on January 9, 1982.  Pinholster solicited two other men to join him in robbing a local drug dealer. The plot quickly went awry.  Pinholster repeatedly stabbed one victim in the chest with a buck knife, killing him. He kicked in the head another victim, who had been mortally wounded by one of Pinholster’s associates. At the apartment, Pinholster washed his knife, and the three split the proceeds of the robbery: $23 and one quarter-ounce of marijuana.

Stevie Lamar Fields‘ case is one of the oldest on California’s Death Row. Fields was on parole for manslaughter when he went on a three-week wave of violent crimes in September 1978. He had been out of prison for just two weeks. Fields was convicted of three rapes, one robbery, two kidnappings and the murder of Rosemary Cobbs, a 26-year-old graduate student and librarian at the University of Southern California. According to the trial record, he tied her to the rails of his bed, forced her to write checks to him, ordered her into a car, then shot her six times and beat her until she died.

Tiequon Cox, a Los Angles gang member, went to carry out a retaliatory gang shooting, but went to the wrong address.  In the early morning hours on Aug. 31, 1984, Cox and Darren Williams entered a home on 59th Street in Los Angeles after Williams mistakenly wrote the wrong address on a sheet of paper. A “scene of horror” is how Judge Graber described what police saw when they found.  Cox and Williams shot to death Ebora Alexander, 58, and her daughter Dietra Alexander.  Cox and his conspirators then shot to death Dietra’s sons, 6-year-old Damon Boner and 12-year-old Damani Alexander as they slept in their beds.

Patricia Pensinger operated a boarding house in Garden Grove California where she lived with her sons. On May 26, 1980, William Payton, a former boarder, came to the boardinghouse.  Pensinger gave Payton permission to sleep on her couch then returned to her bed, where her ten-year-old son Blaine was asleep. Payton later entered Pensinger’s bedroom, jumped on top of her, and stabbed her and her son repeatedly with a butcher knife. In all, Payton stabbed Pensinger forty times and Blaine twenty-three times, but both survived. When the police arrived, they discovered the lifeless body of another boarder, Pamela Montgomery. She had been stabbed twelve times and sexually assaulted.  Payton’s saliva and semen were found on Montgomery’s body.  Payton’s wife testified at his trial that he arrived at their home that night with his clothes, face, hands, chest, and genitals covered in blood.

(Note: Hyperlinks in the description of the crimes above indicates the primary source for the narrative)

Michele Hanisee is Vice President of the Association of Deputy District Attorneys (ADDA).  The views and opinions expressed in this article are those of the author and may not necessarily reflect the official policy or position of the ADDA, which is the collective bargaining agent and represents nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.