Postmortem

Commission investigates California's death penalty just as the pace of executions picks up

By Matthew Hirsch

news@sfbg.com

As the state of California prepares to execute Clarence Ray Allen on Jan. 17 and Michael Morales roughly one month later, a little-known, state-appointed commission is quietly beginning to investigate the system of capital punishment.

Over the next two years the California Commission on the Fair Administration of Justice will attempt to find out how many people in the state prison system were wrongfully convicted, including the ones who were sent to death row.

Though it's kept a fairly low profile, the California justice commission is more than just a bunch of talking heads. It's the official body created by then-senator John Burton (D-San Francisco) and tasked with making recommendations to the legislature and governor on how to reform the criminal justice system. In 2003 a similar group of experts led then-governor George Ryan of Illinois to grant clemency to all 167 of Illinois's death row inmates.

The California justice commission represents the best hope for death row inmates to avoid execution, especially since Gov. Arnold Schwarzenegger has shown little inclination to exercise clemency and only a handful of state legislators have signed on to a proposal introduced in the California State Assembly late last summer that would halt all executions until the commission finishes its work in December 2007.

But the commission – which has a $600,000 annual budget and no public funding – made about as little progress in the past year as the proposed moratorium. It's taken about seven months to get nonprofit funding and to search for an executive director and a permanent commission chair.

With 648 people on death row in California and many of them nearing the end of their appeals, death penalty experts say California could surpass Texas as the most active executioner in the United States. And as bodies start rolling off the gurneys in San Quentin State Prison's death chamber, some can't help but wonder if the commission's recommendations will arrive a few executions too late.

Writer Barbara Becnel says it's already too late, "obviously, considering that I worked with Stanley 'Tookie' Williams for 13 years, and he, an innocent man, is dead," Becnel told the Bay Guardian.

Williams maintained his innocence of the four murders that led to his Dec. 13 execution.

It's no surprise to hear a death penalty opponent question Williams's guilt. But even attorneys who've studied death penalty cases say that based on the evidence that led to Williams's conviction, they are not confident he was guilty.

One of those attorneys is Jon Streeter, a partner at the San Francisco firm Keker and Van Nest and a member of the California justice commission. "You can pick out almost any case on death row and there are going to be serious questions about the most basic elements in the case," Streeter told us. That includes the case against Williams, which was based mostly on testimony by criminals looking for leniency in their own cases, he said.

Streeter spent 17 years as a pro bono attorney for an Oakland man who was convicted in a double homicide case, sentenced to death, and then spared within months of his execution, because of jury misconduct. The defendant, Alfred Dyer, pled guilty to the two murders in 2000 and is now serving a life sentence.

"The case forced me to learn all the ins and outs of death penalty law, which is a bit like learning brain surgery," said Streeter, who usually deals in the realm of trade secrets and real estate – not people's lives.

"When I got the case, what I saw was a file that had been virtually ignored," Streeter told us. Dyer's previous attorney hadn't hired a single expert witness to examine Dyer's mental state during the 1980 murders, and just four witnesses had been interviewed for the entire appeal, he said.

By the time the conviction was overturned, Streeter's team had interviewed 150 witnesses, including half a dozen expert witnesses. Streeter estimates he spent 10 to 15 percent of his time each week on the Dyer case, while spending between $500,000 and $600,000.

Streeter said he needed that much money just to build a complete case for Dyer, but most death row inmates get much, much less. Attorneys for Michael Morales, who's scheduled for execution in February, spent less than $2,000 for all investigations in his appeal, according to Natasha Minsker, staff attorney for the American Civil Liberties Union of Northern California.

For death penalty opponents, one of the most difficult aspects of the debate is the perception that California's justice system somehow works better than those of other states. But a recent study by the Santa Clara Law Review found otherwise.

"The study shows that we have virtually all of the same problems Illinois had," Death Penalty Focus executive director Lance Lindsay told us.

Perhaps the only major difference is that in Illinois a group of journalism students at Northwestern University helped prove several death row inmates had been wrongfully convicted, and subsequent reporting by the Chicago Tribune caught the attention of the governor and the public at large.

Burton told us it was a mistake to leave the commission he created with no public funding. But Streeter told us it's important for the commission to proceed with its work carefully and deliberately.

"Is there a sense of urgency? Absolutely, because the pace of executions in California is going to pick up and reach a point in the next several years that people in California have never seen before," Streeter said.

Though he's not sure whether the justice commission will wind up defeating – or strengthening – capital punishment in California, Streeter said this much is clear: "I think there's an assumption in the debate that the judicial system is capable of handling death penalty cases in a fair and accurate manner. At the very least, there are going to be serious questions about whether that assumption is true."

www.deathpenalty.org www.scu.edu/law/lawreview