April 24, 2002


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Is it worth $3 million to kill this man?
Yosemite murderer Cary Stayner is already serving life without parole. Why is the state determined to spend millions in taxpayer money to execute him?

By A.C. Thompson

THE MONSTER ARRIVES a few minutes after 9 a.m.

Shadowed by a deputy sheriff, alleged serial killer Cary Stayner shuffles into a silent San Jose courtroom and plunks himself down between his two attorneys. As far as monsters go, Stayner, 40, isn't much to look at. His skin has the unhealthy pallor endemic to those who've been incarcerated for long stretches of time, and his once-thick brown hair is turning white and falling out in clumps. In this setting, clad in a red jail-issue jumpsuit and surrounded by armed law enforcement agents, the most notorious murderer since Richard "Night Stalker" Ramirez doesn't look so menacing.

Stayner's trial for the deaths of Carole Sund, 42, her daughter Juli, 15, and Silvina Pelosso, a 16-year-old Argentine exchange student, isn't scheduled to begin until June. But even at this early stage his defense team, Marcia Morrissey and Michael Burt, two of the most adept criminal lawyers in the country, is busy. Today the duo is arguing a flurry of pretrial motions before Judge Thomas C. Hastings, a silver-haired Jerry Brown appointee with a reputation as a hard-ass.

Burt, a forensic-science genius on loan from the San Francisco Public Defender's Office, has filed an inch-thick, copiously footnoted brief asking the judge to toss out fingerprint evidence implicating the defendant. Morrissey is seeking to limit "victim impact statements" – emotional speeches made by family members of the deceased – which the prosecution is planning to introduce.

Addressing the bench, Morrissey – an adroit Los Angeles barrister best known for getting rapper Snoop Dog acquitted of murder charges – elaborates on her position. The statements have "the potential for undue prejudice," she says. "One of the cases we cited, United States v. bin Laden, speaks to this issue."

Like the most loathed terrorist in the world, the defendant in this case is widely despised.

The sentiment is understandable. Stayner's alleged crimes are the stuff of slasher flicks. Snatched from their hotel room in Yosemite National Park, the Sunds and Pelosso were strangled and stabbed; two of the bodies were set on fire. Evidently it gave him a thrill. "I felt alive for the first time in my life," Stayner told Federal Bureau of Investigation agents, according to court documents.

That Stayner's purported murder spree took place amid the craggy peaks and luxuriant sequoias of Yosemite National Park – practically a sacred spot for Californians – makes the crimes seem that much worse. Reflexively we think, if we can't escape meth-using, knife-wielding homicidal maniacs while vacationing in Yosemite, then nowhere is safe.

Stayner has already gone down for one homicide. In December 2000, in a separate case, he pleaded guilty to slaying 26-year-old Joie Armstrong, a murder he committed six months after the Sunds and Pelosso disappeared. He was sentenced to life in federal prison without the possibility of parole.

Ever hungry for gore, the media have covered this grisly tale extensively. However, there's one wrinkle that hasn't been touched on. A source close to the case says Stayner's lawyers offered the prosecution a deal nearly a year ago: the defendant would plead guilty to slaying the Sunds and Pelosso in exchange for a second life sentence. According to the source, the deal was rejected because prosecutors were – and are – committed to sending Stayner to death row.

Twenty-six years after the U.S. Supreme Court reinstated capital punishment with its ruling in Gregg v. Georgia, the death penalty remains a perennial source of controversy, an issue that still draws the placard-waving masses – both pro and con – into the streets. Most of the discourse revolves around three well-worn themes: morality, fairness, and accuracy. Is it ethical for the government to fry people? Are African Americans – and poor people of other races – condemned in disproportionate numbers? Are innocents being sent to the gallows?

The subject of money rarely enters the debate, but it should. Capital trials are budget busters of the first order. California, by official estimates, spends "several tens of millions annually" on death cases and appeals, and newspaper reports have put the figure at $90 million a year. Because lethal injections are irrevocable, "the machinery of death," as retired Supreme Court justice Harry Blackmun describes it, is gold-plated.

The campaign to euthanatize Stayner is a perfect example. The state figures trial costs alone will run to at least $3 million. Add in the expense of the interminable court appeals and the final price will climb higher still.

So you gotta ask: At a time when a crippling budget deficit is forcing California to axe government services, should we really be spending taxpayer money to stick a poison-filled syringe in the arm of Cary Anthony Stayner?

It's not a question the public has really asked before, though our recent history is studded with insanely uneconomical capital trials. Take the saga of Orange County serial strangler Randy Kraft. When three court-appointed lawyers took up Kraft's defense in the mid 1980s, they used taxpayer money to run up a tab of more than $6 million. (Kraft was eventually condemned.)

Then there's Sierra County, which, even with generous fiscal support from the state, almost went bankrupt trying to put people to death. In 1988 the remote county of 3,000 people deep in northern California's gold country spent $1.2 million on five capital prosecutions. "There's no way we can afford these cases," complained one Sierra politician quoted in the Orange County Register. "Our general-fund revenues from local taxes amount to about $2 million a year."

A 1993 UC Berkeley study of Los Angeles County trials found that county public defenders were spending an average of $382,000 per death penalty case. In non-death penalty cases the figure was $42,000. One reason for the added expense is simple: since death row cases are so serious – "death is different" is a mantra in legal circles – the state usually pays for an extra attorney.

And lawyers on both sides have a tendency to pull out all the stops. They bill for thousands of hours, fly in $300-an-hour experts, dispatch gumshoes to hunt down far-flung witnesses, order up high-dollar DNA tests and psychological profiles. For D.A.s, the failure to win a conviction in a high-profile homicide case can be politically disastrous – San Francisco, remember, erupted in riots when Twinkie fiend Dan White got away with murder. Of course, for defendants, the stakes are even higher, and conscientious defense lawyers will spare no expense in trying to save a client.

Heavy spending by state-paid defense counselors has drawn periodic sniping from conservatives. "The opponents of the death penalty are the ones who've driven the costs and timeliness of our capital jurisprudence to the point it's now at," gripes Mike Rushford, director of Criminal Justice Legal Foundation, a Sacramento-based pro-capital punishment lobby. Acting on that sentiment, then-governor George Deukmejian in 1990 suspended payments for capital defense expenses for a year, prompting a lawsuit by Los Angeles County. A few years later state legislators floated an unsuccessful bill to pare back defense billings.

But it's not just the defense lawyers. A 1998 study conducted by the United States Judicial Council found federal prosecutors spent 67 percent more on death penalty cases than they did on non-death cases.

Certain pro-execution types figure it's cheaper to kill inmates than to jail them for 20 or 30 years under the watch of highly paid union prison guards. That, as shown by several academic studies, isn't the case. The cash spent on complex post-conviction legal appeals – which in California and many other states are mandated by law to protect the innocent – usually outweighs any savings. According to a 1993 Duke University analysis, executing a prisoner in North Carolina costs $2 million more than incarcerating that prisoner for life. Since reenacting the death penalty in 1995, New York state has dumped more than $238 million to send six men to death row, where they remain today.

Even the Wall Street Journal, a publication not known for its liberal slant, has picked up on the story. Earlier this year the paper documented how Jasper County, Texas, had to raise property taxes by 6.7 percent to cover the cost of seeking the death penalty for the racist scumbags who lynched James Byrd. "As a growing number of local governments are discovering, there is often a twist on the old saying: Nothing is certain except the death penalty and higher taxes," the Journal noted.

The heinousness of Stayner's alleged crimes makes it easy for prosecutors to demand his death. Busted by the feds in July 1999 while visiting a nudist colony near Sacramento, he quickly began running off at the mouth, confessing to four murders. Because the crimes took place on federal property, assistant U.S. attorney Duce Rice took the first legal shot at Stayner. Rice's initial move was to indict him for the decapitation of Yosemite National Park naturalist Joie Armstong.

Stayner had dragged 26-year-old Armstrong from her cabin in the tiny burg of Foresta. A graduate of Chico State University, the beautiful redhead worshiped the outdoors and taught children visiting Yosemite about ecology for a living. She shared her small, green-painted cabin with Michael Raffaeli, her bearded, hippyish fiancé and fellow park employee.

Raffaeli was away on a three-day backpacking excursion when Stayner took Armstrong captive, tied her up, and forced her into his 1979 International Scout truck. A few miles down the road Armstrong hurled herself headfirst from the vehicle and tore off into the woods.

Even when the tall, powerful man caught up with her, Armstrong refused to give in. "She kept fighting and fighting and fighting," Stayner told the FBI. The fight was futile. Stayner was intent on doing "the most revolting thing I could possibly do." After raping her, he used a knife to hack her head off.

The indictment culminated in a 30-minute court hearing. Entering a guilty plea, Stayner agreed to be imprisoned for the rest of his life and gave up all appeals. As one prosecutor succinctly put it at the time, "Mr. Stayner will not see the outside of a jail again."

Though he was already permanently caged, local law enforcers weren't done with him. After wrangling with the feds over jurisdiction, Mariposa County district attorney Christine Johnson hauled Stayner into state court for the Sund-Pelosso murders.

The D.A. quickly put together a three-lawyer squad, placing Mariposa attorney Kim Fletcher in the lead role and enlisting the help of prosecutors from Solano County and the state Attorney General's Office. (Earlier this year Johnson gave up her post as D.A. to make an unsuccessful run for judge; Bob Brown has taken her place.)

Stayner's tell-all conversation with FBI agents is the backbone of the case. According to the confession, his bloodletting started at the Cedar Lodge, a small Mariposa County hotel where Stayner lived and worked as maintenance man.

In a taped statement that was played during earlier court hearings, Stayner described how he conned his way into Room 509 and found Carole Sund, Juli Sund, and Silvina Pelosso relaxing and watching Jerry McGuire after a day of sightseeing in Yosemite. Stayner said he used a handgun to take the trio hostage, gagging and binding the victims with a roll of black duct tape.

Apparently Carole, a real estate agent from the North Coast town of Eureka, was the first to go. "I didn't realize how hard it is to strangle a person," he told the agents. "It's not easy.... It was like performing a task."

According to Stayner, Pelosso died next, garroted in the hotel room with a three-foot length of rope after being sexually molested. Then, Stayner said, he threw the bodies of Carole and Silvina in the trunk of their rented Pontiac Grand Prix, grabbed Juli, shoved her into the car, and drove off with no destination in mind. Near Don Pedro Lake, a recreation spot in the Sierra Nevada foothills east of Modesto, he parked the car and pulled Juli into the woods. There he raped the girl and sliced her throat with a serrated hunting knife.

Speaking to the Bay Guardian on the condition of anonymity, a source familiar with the case says the defense and prosecution met in summer 2001 to discuss a possible plea bargain. The proposed deal, drawn up by defense lawyer Morrissey, would have given Stayner a second life term, saving taxpayers the cost of the trial. Then-D.A. Johnson turned it down in hopes of offing the man.

"There's only one reason for this whole court process, and that's to kill this man," our source says. "It was a calculated, political decision made at the local level. It was the kind of base, venal decision we've come to expect from politicians."

"I can't comment on that," says prosecution spokesperson Brian Muller, when asked about the deal. On the defense side, Burt declined to be interviewed for this story.

The state reimburses small counties for most of the bills they run up in death penalty cases – so Mariposa is off the hook financially. So far California has ponied up approximately $1.4 million, according to Lisa Casalegno, a spokesperson for the state Controller's Office.

Not all of that money has been spent yet – but it will be. "Everybody's just guessing how much it's all going to cost," Mariposa County auditor Ken Hawkins says. "Three million dollars would be a modest estimate." According to Hawkins, the prosecution, which has amassed 54,000 pages of evidence, has spent $395,000. Burt and Morrissey have gone through $500,000 on behalf of Stayner. Additional funds have been gobbled up by travel and clerical costs.

Those figures don't include expenses incurred when the trial was moved from Mariposa County to Santa Clara, where Stayner is currently jailed. Those bills – which were unavailable at press time – will be borne by the state's Administrative Office of the Courts.

Owing to the reams of evidence involved, the Stayner case comes with a particularly steep price tag – on the prosecution's side, as many as 12 people have been assigned to the case at any given time. "There are so many big expenses," Muller, a Mariposa County sheriff's deputy, says. "A company was hired to make copies of all of the documents related to this case and put them on a disk so they could be retrieved for review. Most of the expenses have related to investigative costs, and discovery costs, and preparation of documents for the defense and for the courts, and then obviously manpower."

Joie Armstrong's mother pressured the feds into sparing Stayner's life.

This isn't a made-for-TV moral lesson about the healing value of forgiveness. And while Leslie Armstrong is a committed Christian – faith is the only thing that has gotten her through, she says – her decision had little to do with theological precepts. Really, it was all about the money.

"I'm somebody who has a legitimate reason to say, 'Get that guy and rip his gizzard out. I don't care what it costs,' " she says. "But it was a waste of money. There are so many things our country needs – I'm a teacher, for crying out loud! We have a homeless problem; we have violence problems. There are so many more productive things that can be done with money like this."

Marshaling the support of her family and Joie's fiancé, Raffaeli, she convinced assistant U.S. attorney Rice – who had been seeking the death penalty – to accept a permanent life sentence.

Armstrong lives in Santa Rosa in a neat beige duplex she shares with her 21-year-old son Brady. Vintage '60s guitar rock wafts in from the radio in the next room as we sit in the kitchen. Affixed to the fridge with a magnet is a strip of photo-booth pictures of Joie in pigtails. Sometimes as we speak, Armstrong cracks wry jokes; other times her sentences disintegrate, words halting abruptly as she drifts off.

"People were very surprised that I did not want to seek the death penalty," she recounts. But executing the killer "wouldn't change anything. His dying would not make me feel better. There would be no emotional release or a sense that 'finally, justice was done.' Please, that makes me want to barf. There can be no justice."

Stayner, she says, "killed a big part of me. There's not much left. I'm a single mom: these two kids have been my life. I'm terribly depressed. I don't take real good care of myself. I pretty much sleep in my clothes on the couch."

Three years after the death of her daughter, Armstrong admits she's still "living in a fog half the time."

Carole Carrington knows all about it. "You feel like you're in a dream, and you hope to wake up and find everything is OK," says the mother of Carole Sund and the grandmother of Juli Sund. "As time goes by, you can't eat, you can't sleep, you're tired all the time, and your head is swirling around. You can't organize or do anything constructive."

With a grim face and a hard stare, Carrington, 67, has followed the courtroom drama since day one, abandoning her hillside ranch in Humboldt County to sit through innumerable pretrial hearings. For her it's about answers. "We want to be sure what happened exactly," she says. "We hope that maybe he'll talk a little bit more. He has told different stories to different people, like to [TV reporter] Ted Rowlands he said one thing, and he gave a slightly different version to the FBI."

It's also about vengeance. Carrington wants to see Stayner die – whatever the cost. She's blunt: "In this world there are a few people who don't deserve to be around, and I think he's one of them."

Eternity in a cinder-block box isn't enough for her. "One of the things that concerns me, too, is that many times people who are sentenced to prison for the rest of their lives don't really have it too bad. It's not nice being in prison, but on the other hand, some of these prisons these days have pretty nice facilities – televisions, computers, exercise rooms, all kinds of things."

Author Austin Sarat has written about the McVeigh principle. Prior to his execution in 2001, it was impossible to elicit even a shred of sympathy for Oklahoma City bomber Timothy McVeigh. The former army infantryman became "the ultimate trump card, the living, breathing embodiment of the necessity and justice of the death penalty," Sarat writes in When the State Kills: Capital Punishment and the American Condition. "Even people normally opposed to, or indifferent about, capital punishment find themselves drawn to it in McVeigh's case."

The principle applies to Stayner as well. At trial his legal team will likely try to win over the jury by putting his parents and friends on the stand and bringing up the fact that his brother was abducted by a pedophile. And Stayner has repeatedly and publicly apologized for his offenses. Still, it's hard to feel sorry for him.

Foes of government-orchestrated killing have long tried to make the condemned seem more three-dimensional, to humanize them. When California readied the lethal-injection gurney at San Quentin for multiple murderer Stephen Wayne Anderson, activist group Death Penalty Focus circulated copies of his poems. Norman Mailer, of course, devoted a thousand pages to humanizing Gary Gilmore in The Executioner's Song. Bay Area photographer Ken Light produced Texas Death Row, an absorbing large-format book full of black-and-white pictures of condemned men.

Maybe this is the wrong tack. It sure as hell won't sway true believers. But the money angle might. Because the core issue isn't how much we despise or relate to Stayner and his ilk; it's what we as a society prioritize. We can blow millions killing criminals (and risk killing innocent people). Or we can hire more credentialed high school teachers; keep public hospitals solvent; clean up our smoggy air; establish parks and preserve wild spaces; pay cops and firefighters a decent salary; help crime victims rebuild their lives.

Ardent supporters of capital punishment "have thought about all of the powerful philosophical, humane, religious [arguments against it] and discounted them," says Peter Keane, dean of Golden Gate University School of Law and a former public defender. "But when you tell conservatives about the sticker price, they have second thoughts. When you look at a death penalty compared to any other kind of criminal case, it's like you're comparing a star to a planet in terms of money spent."

E-mail A.C. Thompson at ac_thompson@sfbg.com.