On March 27, 1993, Charlie Keever, then 13, was murdered,along with 9-year-old Jonathan Sellers, Charlie's best friend. The boys had gone for a bike ride; two days later their bodies were found on an Otay River bank.
The details of the crime are so horrific they seem surreal. According to court records, both boys had been bound and gagged, molested and strangled. Jonathan's body was found hanging from a tree.
Eight years after their deaths, DNA evidence traced the murder to Scott Thomas Erskine, a serial rapist already serving a 70-year sentence at Wasco State Prison for an attack on a woman shortly after Charlie and Jonathan were found dead.
Erskine was charged with two counts of murder with a string of special circumstances: murder committed during a lewd act on a person under 14; murder in commission of oral copulation; murder in commission of sodomy; murder while in commission of rape with an instrument; intentional murder which involves the infliction of torture.
After a series of delays at the request of Erskine's defense team, jury selection for the trial will begin later this month. As one might expect, the District Attorney is seeking the death penalty.
Currently, there are 624 people on California's death row, 11 of them from San Diego County. In the past 27 years, however, only 10 people have been put to death in this state. To say that those 624 people have a 1 percent chance of having their sentences fulfilled would be generous. Texas is really the only state that has its act together when it comes to the death penalty-that state has sent 309 people to their deaths since 1976, 53 of those since Jan. 1, 2002.
Charlie's mother, Maria Keever, believes that if Erskine gets the death sentence she says he deserves, it doesn't necessarily mean he'll be executed. 'To tell you the truth, I don't think he's ever going to be put to death,” she told CityBeat. 'How many people do they put to death in California? They die in jail or somebody kills them.”
Keever is probably right-if Erskine's found guilty of his crimes and given the maximum sentence, he'll have his 15 minutes as the criminal justice system's latest tough-on-crime poster boy and then disappear into a maximum-security prison. What's at issue is that this process will come at a high price-a death penalty case can cost upwards of $2 million, including appeals. Life in prison without parole costs less than half of that. It's estimated California spends $90 million each year maintaining and operating its capital punishment system.
Last December, Erskine's attorneys, veteran public defenders Larry Ainbinder and Juliana Humphrey, proposed a plea bargain to then-District Attorney Paul Pfingst: their client would admit guilt on all charges in exchange for consecutive life sentences with no chance of parole. Additionally, he would waive all rights to appeal and waive all rights to the possibility of gubernatorial or presidential pardon. Ainbinder said the offer was made to Bonnie Dumanis as well, who replaced Pfingst in January. Both DAs strongly support the death penalty. 'The DA wants to put Mr. Erskine to death,” said Ainbinder, 'and nothing short of that will satisfy her.”
In April, Ainbinder and Humphrey asked San Diego Superior Court Judge Kenneth So to declare the death penalty unconstitutional. To some extent, this request is routine for defense attorneys in capital murder cases. The foundation for the argument goes something like this: Under California law, a person accused of murder is eligible for the death penalty if the jury finds that the murder involved one or more of 33 'special circumstances.” To put this into perspective, the Illinois legal system decides who's eligible for the death penalty based on only five special circumstances.
The overabundance of special circumstances, Humphrey said, renders California's death penalty scheme meaningless. Because the law is so broad, almost anyone tried for murder is eligible for the death penalty. It's therefore left up to the district attorney to decide. This could be interpreted as a violation of the Constitution's promise that death sentences are handed down in a 'consistent, predictable and reviewable” manner. Factors such a DA's stance on the death penalty, media hype of a criminal case and upcoming elections-prompting 'tough-on-crime” posturing-have played roles in which cases allow death as a possible sentence.
The second half of the defense request wasn't as routine. During the past year and a half, Ainbinder has culled nine three-inch-thick, three-ring binders' worth of social science data-at least 500 hours of reading, he estimates-that methodically chips away at the justice system's claim that death sentences, for the most part, are handed down in a fair and impartial manner.
The flagship for much of this research has been the Capital Jury Project (CJP), a 12-year ongoing study by researchers at Northeastern University in Boston that takes a non-partisan look at how jurors in capital murder cases make up their minds.
CJP lead researcher William Bowers pulled together a group of fellow law professors, psychologists and criminologists who ultimately interviewed more than 1,200 jurors from 354 capital-murder trials. In the interviews, each lasting three to four hours, jurors were asked to recall their decision-making process during the trial: at what point did they decided on a punishment (life in prison or execution); what factors led to that decision; and, did jurors fully understand the task assigned to them.
The study, approved and funded by the National Science Foundation, has produced close to three-dozen published scholarly articles and a book. What this research has found is that, as one article put it, juror decision making '... appears to violate the constitutional principles established for this most momentous of decisions.” In other words, the 'reasoned moral response” the Constitution demands of capital jurors is often overpowered by our visceral, decidedly human, need to seek retribution.
CJP research has informed anti-death penalty attorneys and scholars but has yet to drive a successful challenge to capital punishment. Craig Haney, professor of psychology at UC Santa Cruz, who's written extensively on the death penalty and jurors' thought processes, and who was set to testify on behalf of the defense motion in the Erskine trial, said studies such as CJP would throw a monkey wrench into the present machinery if their findings ever made it into a courtroom. That's why the issues these studies raise are kept 'off limits” by the courts, Haney said. 'The evidence that indicates that the present system is not working as it should... is too problematic to be given a full airing in court.”
Despite the fact that Ainbinder had brought in three law professors, Haney included, to testify on behalf of his claim that the death penalty is unconstitutional, Judge So sided with the prosecutor, who argued that it makes no sense to challenge a death sentence until that sentence is actually imposed. The defense motion won't be heard until after Erskine is sentenced.
While Ainbinder and Humphrey were open to talk about their challenge of the death penalty, when it came to the Erskine trial itself, they were guarded. With jury selection only two weeks away, pre-trial publicity made them so nervous they didn't even want their pictures taken. Prosecutor Valerie Summers declined to talk to CityBeat, citing reasons of ethics.
The foundation of our modern death penalty system is a 1972 Supreme Court ruling in Furman v. Georgia-a set of three separate cases in which the court found that racial discrimination unfairly influenced sentencing. All three defendants were black. Two were convicted of rape, the third of an accidental shooting that resulted in a death (the defendant tripped trying to evade capture, setting off his gun).
Capital jury sentencing, the court determined, was conducted devoid of guidelines and replete with racial prejudice. The 'arbitrary and capricious” manner by which sentences were handed down violated the Eighth Amendment's promise to protect individuals charged with serious crimes from 'cruel and unusual punishment.” So, this means is it's not how a person is executed-a convicted murderer can be gassed, shot, hanged, electrocuted, injected with lethal drugs, and the Supreme Court has no problem with it. What's 'cruel and unusual” is when punishment is handed down randomly-or, arbitrarily and capriciously-potentially influenced by factors beyond the defendant's control such as race, gender, appearance and the competence of the defendant's legal counsel.
As a result of the Furman ruling, the Supreme Court declared all state death penalty statutes invalid, and for five years, no one was executed.
But by 1977, states had implemented procedures intended to 'guide' jurors' decision-making. For example, a 'post-Furman' capital trial is divided into two phases, the guilt phase and the sentencing phase, in order to prohibit 'mandatory' death sentences. In other words, if a jury decided guilt and sentencing at the same time, it's far more likely a guilty verdict and death sentence would go hand-in-hand.
The Supreme Court also demanded that jurors be allowed to hear 'mitigating' evidence-what's in the defendant's past that might have made him do what he did. This has become an increasingly complex area given the growing belief that a person's past influences their future. Factors such as mental, physical and sexual abuse, as well as mental illness and mental retardation are increasingly seen not as excuses or justifications for criminal behavior but as potential explanations.
Other concerns brought before the Supreme Court included whether jurors truly understand that the option of life in prison without the possibility of parole means just that, and not the potential for early release based on good behavior. CJP found that many jurors falsely believed a death sentence was the only way to make sure a defendant was permanently removed from society.
In one documented case, for example, jurors believed that the defendant could walk out of the courtroom a free man if the verdict wasn't death. As a result, the jury chose death and defendant Lonnie Weeks was executed in March 2000 for killing a police officer. It was only after Weeks' death that his jury came forward and admitted they'd been confused.
Additionally, harkening back to the Milgram experiment (in which Yale psychology professor Stanley Milgram got his subjects to administer what they assumed were painful electric shocks to other study participants, proving that people are more willing to inflict punishment if they believe they aren't responsible for it) the court ruled that jurors must be made to understand that they, not the state, nor the judge, nor the attorneys, are responsible for sentencing decisions. This, CJP found, doesn't always happen.
On Aug. 29, Ainbinder, Humphrey and prosecutor Valerie Summers will get their first look at 250 potential jurors. 'Finding 12 people who are going to be open to executing Scott Erskine is the easiest task in the San Diego courthouse today,' said Ainbinder. 'I could not imagine an easier task.'
The 14th Amendment guarantees the right to due process for even the worst of the worst offenders. Even Erskine, against whom the prosecution has gathered evidence documenting years of sexual deviance dating back to when he was 13 years old, is entitled to a fair trial.
'The court's obligation under the law, is to not only find 12 people who are open to imposing a death sentence for Erskine but who are just as open, even in light of these horrific crimes, to the possibility of imposing a life sentence,' Ainbinder said.
Jurors selected to serve in a capital case must be 'death qualified,' meaning they have nothing-religious beliefs or otherwise-preventing them from handing down a death sentence. While many jurors appointed to capital cases go into the trial with an open mind, researchers have found that a significant number of jurors make up their minds before the sentencing phase of the trial. Of those jurors who reached a decision in the pre-sentencing phase, more than half, preoccupied by a defendant's guilt, had decided on death.
Ainbinder believes that many of those people likely came into the trial already having decided during the jury selection process that the death penalty is the only option.
As he notes in one court document, jury selection in a capital case begins with a judge questioning jurors' attitudes about the death penalty.. Ainbinder believes that jurors selected to serve on the case often assume the defendant must be guilty-after all, why else would they be asked whether they'd be able and willing to hand down a death sentence.
'Only in Alice in Wonderland and in capital jury selection do we talk about the sentence first and then the trial,' he notes.
The right to due process also promises the defendant that jurors will be allowed to hear mitigating evidence during the sentencing phase of the trial, which they'll then be asked to weigh against 'aggravating' factors. Aggravating factors are similar to special circumstances-for example, whether the victim was a police officer, whether the murder was committed during a robbery, whether the murder involved sexual assault.
Not surprisingly, CJP researchers found that many jurors didn't quite understand what 'mitigating evidence' meant, let alone how mitigating evidence should relate to aggravating factors.
In simple terms, this means that what a defendant has done-the gravity of his or her crime-will be weighed against a meaningful attempt by the defense to put together what Craig Haney calls a 'legally authorized emotional appeal' for the jury to spare the defendant's life. This is where things such as a dysfunctional childhood, mental illness and significant psychological trauma are-if applicable-introduced to help the jury understand why the defendant did what he did.
'The Constitution,' Haney said, 'requires that every capital defendant have an opportunity to be judged... not just by the crime but by the mitigating life story that almost always helps to explain the person on trial, his life and what awful things may have led him to do what he did.'
Those insights, said Haney, 'often lead jurors to understanding and compassion. Many people... find it hard to exact the ultimate price from someone who himself suffered at the hands of others or was damaged by forces that he could not control.'
Problem is, jurors not only don't always fully understand the concept of mitigation, but they also often don't realize that they're required to thoroughly consider all mitigating evidence when making their decision-they can't pick and choose or ignore it altogether simply because they find what the defendant did reprehensible. As one CJP juror put it, '... no matter what his background was, it's not an excuse. So therefore he can't use it in his defense. Even though it might explain why he did it, we didn't feel it should get him off.'
Despite instructions from the judge as to how to process mitigating evidence, studies have found that jurors resist considering it, believing that if they do, they'll be excusing the defendant for immoral behavior. Compounding this, said Ainbinder, is that '[jurors] do not know how to value dysfunction. They do not know how to weigh disorder. They do not understand what they are supposed to do with the evidence of addiction or alcoholism. So they bring their own rules and decide the unfamiliar question confronting them on the basis of their own standards.'
What jurors are more likely to understand, CJP data and other studies have found, are adjectives the prosecution attaches to the defendant and the crime: the defendant is a 'monster,' his crime 'vile' or 'heinous.' Regardless of mitigating evidence, one-third of California jurors interviewed by CJP researchers believed that if they found the defendant's crime 'heinous, vile or depraved,' a death sentence was mandatory, regardless of mitigating circumstances.
If Erskine is ultimately sentenced to death and the defense's post-trial motion prevails (something unlikely to happen at the trial court level), he would be spared the death penalty. The possibility doesn't please Maria Keever. She said she wasn't happy with the defense motion to bar the death penalty-when it came to life or death for Charlie, he wasn't given a choice, she said. Though she admits she doesn't support the death penalty, Erskine is an exception-'one of the men who deserves to die for what he has done.'
As Humphrey explained, their challenge in this case is less about saving Erskine's life than about taking aim at the entire death penalty scheme. Certainly Erskine is the vehicle for the argument, since it's his case to which the defense motion is attached, but the real challenge is to the system as a whole. And, as Humphrey pointed out, what the jury decides to do with Erskine has no bearing on her and Ainbinder's case against the death penalty. 'What our jury does has no affect,' she said.
Nonetheless, the defense couldn't have been handed a worse case from which to launch their challenge.
Justin Brooks, a law professor at California Western School of Law and executive director of the anti-death penalty California Innocence Project, who's familiar with the case, said the focus shouldn't be on whether or not Erskine-or any defendant for that matter-deserves to die.
'The focus should be on whether we deserve to kill. You can look at these cases and say, ‘Look at this guy. He doesn't deserve to live'-that's easy. But whether our system is set up such that we are comfortable with killing anybody-that's the issue. These are God-like decisions we're talking about. When our system is God-like, maybe then I'll be comfortable, but we're as far from God-like as we can be.'
Abolishing the death penalty might prevent society from exacting the ultimate punishment on someone like Scott Erskine (though many argue that life in prison isn't necessarily a better option), but it could likely save those who end up with a not-so-impartial jury or, even worse, a careless defense lawyer.
Brooks has seen firsthand how the system can go wrong. Several years ago in Chicago, a 21-year-old Puerto Rican girl was arrested for her participation in a gang-related shooting that left two people dead. There was no evidence to show that the girl was the shooter, but her court-appointed attorney entered a guilty plea on her behalf anyhow. A jury then sentenced her to death.
Brooks learned about the case and requested an appeal. He went back and talked to jurors and was able to piece together a bizarre chain of misinformation that had nothing to do with the trial but somehow made it into the jury room. One juror told another juror that she was fed up with gang members who sell drugs. That juror in turn expressed her anger at gang members who sell drugs near schools. The juror who heard that started to question whether the defendant was selling drugs to school kids.
'[The jury],' Brooks said, 'made a decision totally not based on evidence but on something somebody got in their head.'
Brooks got the girl a new trial, though it remained a capital case. Given the choice between life in prison or death, the jury voted life but expressed concerns that the girl was innocent. Brooks is currently appealing the verdict, hoping to get the girl released. She's been in prison for five years now.
It's the process, then, (juror decision making) not necessarily the product (execution) that death penalty critics have a problem with. They question how and why a defendant's fate is decided, in private, by a group of 12 people who aren't required to tell a soul how or why they chose life over death or vice versa.
In no other type of criminal case does a jury decide punishment-only in capital cases. '[The jury] retires to the jury room and they make their decision and no one knows how they arrived at it,' said Ainbinder.
The part that makes it even more problematic, he said, is that the courts don't want to know what goes on in the jury room. 'They don't want to know, did race come into that decision? Was there some other impermissible [deciding] factor that was used by the jury? Did the jury even understand the judge's instructions?'
When Judge So deferred the defense petition to declare the death penalty unconstitutional, Ainbinder and Humphrey put in another request, this time for the judge to allow jury deliberations to be tape recorded-something that's never been done before-in order to 'open the door to the jury room' as Ainbinder put it. This, too, was denied by the judge.
Though they'll be sitting on different sides of the courtroom, Ainbinder and Maria Keever share one commonality when it comes to Scott Erskine.
Erskine's death, Keever admits, won't bring closure to her son's murder. Though she said her life since her son died has been 'hell,' she finds it upsetting that another person might die. As for Ainbinder, he says he can't fathom the pain that the Sellers and Keever families have dealt with. But as someone who steadfastly believes capital punishment should be abolished, he argues it's unlikely peace will come from seeing Erskine put to death.
'The DA views life in prison as letting him get away with it. It is not letting him get away with it,' Ainbinder said. 'It may well be that allowing someone to serve the rest of their life in prison until the day they die increases the likelihood that one day they'll come to terms with their conduct and appreciate the nature of it, which is important for their own redemption or their own punishment.'
But, Ainbinder adds, 'under no circumstances does executing someone make us better people.'