The Long Stall
By Michele Hanisee
Every time the issue of capital punishment has been put before California voters, they have voted to keep the death penalty and rejected efforts to eliminate it. Yet our paternalistic elected officials and their appointees smugly substitute their own values over the ratified votes of the majority. This includes the Attorney General, who is supposed to defend the judgments of our courts and juries on appeal, and the Department of Corrections and Rehabilitation (CDCR) which is charged with carrying out those judgments.
For the past 12 years the Attorney General and CDCR have engaged in a conspiracy of foot dragging that has deprived crime victims of their rights as set forth in the California Constitution Victims’ Bill of Rights. Now, however, the charade is being exposed. In briefs recently filed in the 9th Circuit Court of Appeals, crimes victims and prosecutors have called out the Attorney General, CDCR and the Federal District Court for their part in the decade and a half of delay in carrying out death sentences imposed by California jurors.
The last execution in California was January 17, 2006. Clarence Ray Allen was already serving a life sentence for the murder of Mary Sue Kitts because she had identified Allen for his involvement in the burglary of Fran’s Market. From prison, Allen ordered the murder of the witnesses who had testified against him in the trial for Kitts’ murder. At Allen’s direction, an accomplice went to Fran’s Market where he murdered Bryon Schletewitz, the son of the owner, and employees Josephine Rocha (17) and Douglas White (18) with a sawed-off shotgun.
After Allen’s execution, the next scheduled execution was of Michael Morales. Morales was sentenced to death for the murder of 17-year-old Terri Winchell. Morales beat Winchell’s skull in with a hammer then raped her before stabbing her four more times. When faced with anexecution date, Morales filed an Eighth Amendment challenge in federal court to California’s three-drug execution protocol. The resulting stay has continued to block executions in California. However, what is critical is that during this long stay period the federal court, twice gave the state the option to proceed with an execution using a single barbiturate rather than the three-drug method. The state has since switched to the single-barbiturate method, yet the stays, inexplicably, remain in effect.
Two court challenges have been filed to force the Attorney General and CDCR to enforce the law. The first challenge, which can be read here, here and here is a request by local District Attorneys to intervene in the Morales lawsuit now pending before the 9th Circuit so that their interests and the interest of the victims can be represented. The filed court papers document how, in the context of this lawsuit, the Attorney General is acting not as a representative of the people but as defense counsel for CDCR, which has shown no inclination to carry out the sentences imposed by juries in this state.
To quote from the moving papers, “Despite satisfying every level of process to ensure a just outcome for each criminal case, the death judgments against Plaintiffs remain frustrated by the underlying litigation.” The filings go on to add, “The District Court failed to account for the Attorney General as an independently-elected official with prosecutorial duties of his own, rather than merely serving as a counselor to the executive officers here. And since that former role is absent from the underlying litigation, the voice of the People who obtained the death judgments must be permitted to participate. The cost of the Plaintiffs’ crimes to the People of the State of California is immeasurable. A silencing of their voice by a lack of inclusion puts the confidence of all process in question. The District Court’s decision to deny intervention to the District Attorneys must be reversed so that voice may be heard.”
The second challenge is a Writ of Mandamus filed by the Criminal Justice Legal Foundation (CJLF) on behalf of two victims of crime, Bradley Winchell (the brother of Terri Winchell, discussed above) and Kermit Alexander. Alexander’s sister Dietra Alexander and his nephews Damon Bonner, aged 6, and Damani Garner-Alexander, aged 12, were gunned down in their beds, while his mother Ebora Alexander was killed in the kitchen as she enjoyed her morning coffee, all because gang members carrying out a hit went to the wrong address
The writ, filed in the 9th Circuit Court of Appeals, seeks an order directed at the District Court to vacate all stays of execution and refrain from further stays now that the state has adopted the single-drug method of execution for which the inmates in the federal case advocated.
In the filed court documents, CJLF said “the suit has become a semi-collusive one, with the defendants using stay orders they know are improper as a shield to avoid their duties under state law, blocking petitioners’ statutory right under state law to compel performance of those duties.” “In the stay orders issued by the District Court in this matter since 2012, there seems to be a tone implying that halting all executions in the state for an indefinite period is, to use the vernacular, ‘no big deal’.”
It is unacceptable that CDCR has pursued a course of action that obstructs executions rather than carrying out its mission to enforce the judgements of our courts and juries. It is further unacceptable that the Attorney General is acting as a shield for CDCR rather than as a representative of the People. It is this bad faith that has required these two legal challenges to be brought, to ensure that the will of the people of the State of California and the judgments of our citizens who act as jurors is carried out.
Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.