Before this issue of CityBeat is off the stands, 46-year-old Kevin Cooper will be the 11th person put to death in California since the Supreme Court here reinstated the death penalty in 1977 after a five-year moratorium.
Cooper has been on death row just a few months shy of 19 years, put there by a San Diego jury for the 1983 murder of Douglas and Peggy Ryen, their 10-year-old daughter Jessica and 11-year-old Christopher Hughes, a friend of the family; a judge moved the trial from San Bernardino to San Diego due to the excessive publicity it was getting up north. Dubbed the “Chino Hills Massacre,” all four victims were hacked and slashed repeatedly with a knife and hatchet. Eight-year-old Joshua Ryen survived the attack despite having his throat slit.
Cooper, a convict with a history of mental illness who had escaped from the California Institute for Men in Chino, was found driving the Ryens' car; he was later accused of killing the Ryens only to steal their car. Through it all, Cooper has maintained his innocence.
Joshua Ryen, now 27, wrote a letter opposing Cooper's bid for clemency, telling the Governor that only when Cooper's life ends will his begin. “He took everything from me when he took my family,” Ryen wrote.
The death penalty is about retribution, justice for victims and the ultimate punishment for offenders, its proponents say. Those supporting factors, however, lose steam when there's a two-decade delay between promise and fulfillment. Two decades is how long it's taken Cooper to work his way through the labyrinthine appeals process he's entitled to. It wasn't until Dec. 17, 2003 that he exhausted his final court appeal.
Despite attempts by Congress and the state Legislature to reduce delays in the death penalty appeals process, its once “glacial pace” has accelerated to that of “cold molasses,” said former San Diego County District Attorney Paul Pfingst.
“The judicial branch would not permit any other branch [of government] to be as dilatory in its obligations as it permits itself,” Pfingst told CityBeat. “By the time the decision is finally made as to whether a person in a death penalty case got a fair trial or not... if you had that same decision-making process in the biotech community, we wouldn't have DNA, we wouldn't have a cure for polio.”
Of the 10 executions that preceded Cooper's, the average wait on death row was 16 years-a rate skewed by David Edwin Mason, who volunteered to be put to death after nine years and seven months at San Quentin. The last three executions-Darrell Keith Rich (March 2000), Robert Lee Massie (March 2001) and Stephen Wayne Anderson (January 2002) took 19, 21 and 20 years, respectively, from sentencing to death.
If Kevin Cooper had committed the same crime but had, for some reason, been sentenced to life in prison without the possibility of parole, he would have likewise been allowed to appeal his sentence. That appeal, however, would have been completed in a year, said Pfingst.
“This should not be a complex process,” he said. “The fact of the matter is, it's a person on trial... and was that trial a fair trial. We do that in non-death penalty cases in a short period of time. Guys go to prison, life without parole, for the rest of their natural lives until they die and the appellate system handles that within a matter of a year.”
However, “the Supreme Court has declared in several cases that ‘death is different,'” countered Justin Brooks, who heads the Innocence Project at the California Western School of Law, and therefore subject to greater scrutiny. Appeals processes “take time but are necessary for the death penalty to be constitutional,” he said.
Additionally, however, when it comes to the death penalty, Pfingst said, the appeals process becomes an “ideological contest.”
An example of this is Bernard Hamilton, who's been on death row for 23 years for the 1979 murder of Mesa College student Eleanore Buchanan. In 1981, a San Diego jury found Hamilton guilty of kidnapping Buchanan, cutting off her head and hands and stealing her car. Hamilton's sentence was reversed in 1985 by the California Supreme Court, under the guidance at that time of the late Chief Justice Rose Bird, a death penalty critic who's been both lauded and despised—depending on where one's sympathies fall—for overturning 61 death sentences during her nine-year tenure.
Bird's court sided with Hamilton after finding that the judge in his jury trial failed to inform jurors that they must find, without a doubt, that Hamilton intended to kill Buchanan when he kidnapped her.
Bird was ousted in 1986—thanks largely to her death penalty stance—in favor of a more conservative bench. Since then the state Supreme Court has sided with appellants only 10 percent of the time.
Hamilton was re-tried and again sentenced to death. His sentence was affirmed by the Supreme Court in 1988. The 9th Circuit Court of Appeals reversed the Supreme Court's decision, arguing that the shackling of Hamilton's arms and legs during his jury trial was unconstitutional. Hamilton was again re-tried and sentenced to death. Currently, his case is back to phase one of the appeals process, and in December his attorney asked for an extension—her eighth request—to February to file an opening brief.
Twenty-three years has given Hamilton plenty of time to learn the law. He's filed successive appeals on his own behalf and launched two lawsuits from prison, one claiming the prison hobby shop overcharges inmates, the other claiming a guard stole his personal property. None of his legal challenges have been successful.
It's estimated that the California Supreme Court spends two-thirds of its time deciding whether or not individuals sentenced to death got a fair trial. Juries deliver roughly 30 condemned inmates to death row each year. Last year the Supreme Court delighted in the fact that it was able to dispose of 21 waiting capital appeals—appeals likely filed a decade ago.
So what does the appeals process look like? Despite the media's voracity for murder trials and the public's enthusiastic support of the death penalty—as high as 70 percent in favor-once a verdict's reached, the story's pretty much over. Who, for example, knows that David Westerfield is on the waiting list to be assigned an appeals attorney? In recent memory, Timothy McVeigh's is the only execution that maintained public interest from the trial till death and that's because 1996 legislation put federal cases on what's been dubbed the “fast track” appeals system.
California's death penalty appeals process is complex, so much so that in December 2000, Attorney General Bill Lockyer put together a guide to explain to the public how a capital case is appealed (for the curious: http://caag.state.ca.us/piu/pdf/deathpen.pdf).
Under state law, every person sentenced to death gets an automatic appeal. In an automatic appeal, a convict-or appellant-is assigned a new defense attorney whose job is to review every aspect of the original trial—transcripts that can total as many as 40,000 pages—and find error. The appellant's attorney files a brief with the Supreme Court; the state attorney general prepares a response; the appellant is allowed to file a reply and then the state Supreme Court takes a look at all three documents with the goal of determining whether issues raised by the appellant are valid. Presently, roughly one-third of California's death row inmates have made it past this step; the others are still waiting.
In the case of Kevin Cooper, this first step in his appeal went unusually fast. He was sentenced to death on May 15, 1985 and within a month had an attorney appointed to him. That's an anomaly. It can take upwards of two years—more likely four—for an indigent client to be appointed an attorney. Arguing capital murder appeals isn't necessarily what drives law school applications. The court system has strict guidelines for who's eligible to represent a condemned inmate on appeal, requiring specialized training and prior experience in felony and capital murder appeals. Every death-row inmate either has at least one attorney actively representing him or is on the waiting list to get one.
To put the shortage of qualified attorneys into perspective, in 1990 the Office of the State Public Defender—created in 1976 to represent indigent clients primarily on non-capital appeals—was mandated by the judiciary, Legislature and governor to devote its resources exclusively to death-penalty appeals. In 1997, the state Legislature, citing a huge backlog of death-penalty appeals, voted to up the pay of state-appointed lawyers to $125 an hour and dedicate additional money to recruit and train more lawyers. That year, state spending on capital appeals increased 55.7 percent, from $22.3 million to $34.6 million annually.
Cooper's appointed attorney, Mark Cutler, took a year to submit a 647-page opening brief. Again, this is not the norm. Judging from court records reviewed by CityBeat, the defense can easily take three or four years to put together an opening brief. (Cutler, in fact, spent almost four years drawing up a 648-page opening brief for Cleophus Prince, a San Diego man convicted of killing six women in 1991.)
It took the state five months to submit its response to Cutler's opening brief in the Cooper case. Two months later, Cutler filed his reply. After another four years, five of the seven California Supreme Court judges decided the San Diego jury that sentenced Cooper to death made the right decision. Within a month, Cooper asked the Supreme Court to reconsider its decision; the court said no. In November 1991, he asked the U.S. Supreme Court to review the state court's decision. The court responded two months later, saying it found no reason to do so.
It took more than six years for Cooper to make it through the very first stage of the process. How are we to account for the other 13 years? Follow closely:
Once an automatic appeal is complete, a defendant has essentially five more chances to win clemency. First, he can bring new evidence to the state Supreme Court, known as a “habeas corpus” appeal. Cooper's habeas corpus appeal, for which he was assigned two more attorneys, included finding an inmate, Calvin Booker, who confessed that he, and not Cooper, committed the murder. The court wasn't convinced. (Cooper would later find another San Quentin inmate, Kevin Koon, who claimed that he and not Cooper nor Booker committed the murder-the court didn't buy that argument, either.) Cooper also asked for DNA testing—which wasn't around for his original trial—and he claimed Cutler provided ineffective counsel during the first round of appeals.
In addition to bringing up new hard evidence, an appellant can argue to a federal court that at the jury-trial level his constitutional rights were in some way violated—that, for example, he received inadequate legal representation, a violation of the Eighth Amendment. He can take this argument to a U.S. district court, then a circuit court of appeals and finally the U.S. Supreme Court. If none of these courts finds grounds for reversal, the defendant's last resort is seeking clemency from the governor.
It took Cooper until Dec. 17, 2003 to exhaust all possible appeals. On that date, San Diego court set his execution for Feb. 10, 2004.
For every argument that the death penalty appeals process is needlessly slow, there's a counterargument proving it's best to be cautious.
The introduction of DNA testing has led to the exoneration of at least a dozen death-row inmates nationwide. And recent legislation makes it constitutionality unacceptable—cruel and unusual punishment—to execute anyone deemed mentally retarded. Unless an attorney fully investigates and presents this information at the jury-trial level, it's up to an appeals lawyer to raise the issue, said Michael Laurence, executive director of the Habeas Corpus Resource Center, a state-funded agency created in 1997 to hire and train competent appeals-level defense attorneys.
Claims of mental retardation are usually new evidence, raised at the habeas corpus level of the appeals process and require an exhaustive investigation that includes an examination of school records, a search for teachers and friends and the services of a competent psychologist. The state affords appeals attorneys only $25,000 for investigation costs.
“Cases multiply exponentially as they go from one stage to the next,” Laurence said. It's up to the attorney in each successive stage to review what's come before and find error. The 25 lawyers working out of his office have been handling 39 cases since the resource center was created; none of those have been resolved.
“Once you find somebody to take these cases, you are asking them basically to step into a world of litigation that's as complex as the AT&T breakup,” Laurence explained.
In addition to the shortage of qualified attorneys, the appeals process is backlogged, Laurence said, because capital punishment is a political issue, pushing 30 or more cases into the appeals system each year. The death penalty is supposed to be reserved for the “worst of the worst,” but the sheer number of capital cases prosecuted each year opens the door to error.
Shoddy defense counsel is error No. 1. One defense attorney, appeals lawyers found, fed his addiction for Pac Man on breaks from trial. Bernard Hamilton is currently arguing that his attorney read Bon Appetit magazine during trial testimony. Less obvious ineptitude includes attorneys asking interns to handle critical research and defense counsels' failure to fully investigate claims of mental illness or mental retardation. Even the most conservative high-court judges have been appalled by the legal representation appellants sometimes receive at the jury-trial level.
Laurence wonders whether directing more resources at the county level might be the answer to California's capital appeals quagmire. “I think most people would say that it's critical that we spend the resources at the trial-court level in order to insure that these cases are dealt with in the appropriate fashion before they reach the level of the death sentence.”
A 23-year longitudinal study by Columbia University law professors found that in 70 percent of all capital cases, an appeals court found reason enough to overturn either the sentence or conviction. The study concluded that the more aggressively a state employs the death penalty, the more likely it is that mistakes will be made. The Columbia study concluded that “the capital system's functional success rate—executing ‘the worst of the worst'—is between 1 and 8 percent.”
Other studies have found that Florida has an obscenely high rate of conviction reversals-66 between 1990 and 1999 and 173 sentence reversals during that same period. California, on the other hand, had eight convictions reversed and six sentences reversed between 1990 and 1999. Texas reversals were far lower-two convictions and three sentences, respectively.
But when it comes to the death penalty, Texas is in a class of its own. Texas' death penalty statute, said Dan Gillette, California's deputy attorney general in charge of death penalty appeals, maintains the minimum requirements to be constitutionally sound and the 5th Circuit Court of Appeals, which covers Texas, “has never had the problem with the death penalty that the 9th Circuit has.” Texas, unlike California, has set minimum qualification for appeals lawyers representing indigent clients.
604 and counting
California's death row currently holds 589 men and 15 women. By comparison, Texas houses 452 death-row inmates, Florida 364.
The size of California's death row gets surprisingly little attention.
When former Gov. Gray Davis proposed that a $220 million “state of the art” death-row facility be built at San Quentin, large enough to hold 1,024 inmates, opponents pointed to the sway the prison guards union held over the former governor and not necessarily to the fact that Davis was envisioning a time when death row would be more than double the size it was when he took office. (As it happens, the prison guards union opposes the new facility, citing budget concerns.)
In October, bonds for the new prison were approved, and Arnold Schwarzenegger, despite continued budget problems, hasn't backed away from the plan.
At the rate California's going, it will take 160 years to clear death row's current population, taking into account that state and federal courts reverse what averages out to be three death sentences each year, and executions, so far, have occurred at a rate of one every two and a half years. Twenty-two inmates have died on death row; 13 have committed suicide. The state Department of Corrections' condemned inmate list continues to grow by roughly 30 names each year.
Though the state Legislative Analyst's Office issued reports on the backlog of death penalty appeals in 1997 and again in 1998, there's been no follow-up report since. “We focus where the interest is, or where the major issues are,” said Greg Jolivette, an analyst in charge of criminal-justice matters. So far, no one's demanding an updated report.
Texas averages one execution every other week. Could California envision itself doing the same?
When CityBeat spoke to Gillette two weeks ago, he predicted that Cooper's, if carried out, would be the only execution the state sees this year. On Jan. 28, however, came word that the 9th Circuit Court rejected an appeal by Donald Beardslee, convicted 23 years ago of killing two women in a botched drug deal in Redwood City. Beardslee has three months to file an appeal with the Supreme Court. If that appeal is rejected, he could be executed this year. Only twice—in 1996 and 1999—has California executed more than one person in a single calendar year.
Gillette said California's tolerance for executions is not an issue that concerns him. “At some point, because of the numbers, or any other reason that the electorate or the Legislature decide they don't want to have the death penalty, then they can certainly change it,” he said.
Laurence, on the other hand, says the system needs fixing now. But, he said “I think it would take someone who is very corageous and has even a modicum of common sense to understand this system is completely broken.”