CPDA

California Public Defenders Association

10324 Placer Lane Sacramento, CA 95827

Phone: (916) 362–1690 x 8 Fax: (916) 362–5498

News Release

Release Date: March 25, 2003

The leadership of the California Public Defenders Association (CPDA) and the California Attorneys for Criminal Justice (CACJ), with a joint membership of over 5,000 defense attorneys and public defenders in California, have released the following statement in response to a publication issued recently by the California District Attorneys Association on the subject of the death penalty.

The California District Attorneys Association (CDAA) recently released a 100 page document entitled "Prosecutors' Perspective on California's Death Penalty."

This “White Paper” is a misleading attempt to discourage the ever increasing public attention to the question of whether or not the death penalty should be reconsidered because of major problems with the manner in which it is imposed.

The CDAA claims that, unlike other states, there is nothing wrong with the criminal justice system in California and Californians don’t have to think about the possibility of wrongfully convicting innocent people. They claim that the concept of a “moratorium” is an “insidious attack” on the death penalty, but the simple fact is that a moratorium only asks for a break in the resumption of executions while everyone on all sides of the issue work together in an effort to achieve the goals of making sure that the truly innocent are acquitted and the truly guilty are convicted; and that the death penalty is fairly imposed, instead of arbitrarily resulting from the accident of the victim’s race, the defendant’s race, the quality of the defense lawyers involved, or the geographic location of the crime.

The recent commutations by Gov. Ryan of Illinois may have prompted the CDAA’s attack, but anyone truly concerned with convicting the guilty and freeing the innocent should have been inspired to action by the release of the Recommendations by the Illinois Commission on Capital Punishment. The Commission included law enforcement representatives, prosecutors, judges and former prosecutors in addition to defense lawyers and scholars. Their recommendations stemmed from a variety of concerns, including the twin goals of convicting the guilty and acquitting the innocent, because it had become apparent that many innocent people had wrongly been convicted of capital crimes they didn’t commit. After a comprehensive investigation, the Commission found that two of the most common reasons that innocent people are wrongly convicted are mistaken identifications and false confessions, and they proposed a simple solution to these problems: video tape record all custodial police interrogations from the very beginning–instead of just turning on an audio tape recorder after the police have already obtained the statement they have been looking for and now just want to memorialize it on tape; and use identification procedures that do not suggest to the witness in advance who the police want the witness to identify. These procedures have already been adopted in a few other jurisdictions, and the United States Department of Justice has also recommended the implementation of the non-suggestive pretrial identification procedures. The Illinois Legislature, however, failed to implement any of the Commission’s recommendations. It was only after they failed to act that Governor Ryan was forced to do something about it himself nearly a year later.

These problems are not unique to Illinois. Virtually no law enforcement agency in the entire State of California uses the non-suggestive pretrial identification procedures recommended by the United States Department of Justice and the Illinois Commission on Capital Punishment. And it is extremely rare for any California law enforcement agency to videotape their entire interrogation of any suspect in virtually any case; indeed, most agencies never videotape any portion of the interrogation, and almost no California law enforcement agency ever audiotapes the entirety of any interrogation from the beginning. Despite the revelations in recent years of many, many cases where innocent defendants have been wrongfully convicted based on mistaken identifications and false confessions, California prosecutors and law enforcement agencies refuse to take any action to improve the accuracy and reliability of eyewitness identifications or confessions. Instead, their reaction is to simply to refuse to acknowledge that there is any problem in the first place.

The CDAA maintain their stubborn refusal to admit that any California prosecutor has ever obtained a wrongful conviction of an innocent person. Under the law, a person who kills in self-defense is innocent of murder; but although the CDAA admits that a unanimous jury found that Patrick “Hooty” Croy was not guilty of murder because he acted in self-defense, the CDAA claims that he was not innocent and his release after serving 12 years on death row was not a case of an innocent man having been wrongly convicted of a capital crime. The CDAA refuses to acknowledge the fact that Lee Perry Farmer was finally released from prison after almost 18 years, including 8 years on California’s death row, when a unanimous jury in Riverside County found him not guilty of murder because they determined that someone else committed the murder for which he had been wrongly convicted. The CDAA also failed to admit that Oscar Lee Morris was finally freed after serving 16 years in prison for a murder he did not commit, including 6 years on California’s death row, and that he was wrongly convicted by an overzealous prosecutor who obtained a conviction by using the fabricated testimony of a jailhouse informant. The list goes on and includes many other innocent human beings who were wrongly imprisoned for years and years for crimes they didn’t commit. For example, Dwayne McKinney served 19 years in prison for a murder he didn’t commit. He was finally released when the identity of the true criminals was determined, but he may very well have been dead by that time had the prosecution got what it asked for at trial: 8 of the jurors at Mr. McKinney’s trial voted to give him the death penalty, but the commitment of the 4 other jurors led to him being sentenced to life without parole; otherwise, he would probably have been executed before the truth finally came out.

The simple truth is that the criminal justice system in California suffers from the same problems which have caused the wrongful conviction of innocent people elsewhere–and right here in California. The truth is that reforms are needed to insure that the innocent are not convicted and the real culprits are convicted.

The truth is also that even when a person who is guilty of murder is convicted of murder as he or she should be, the determination of whether or not he gets the death penalty is most often based on the race of the victim, the race of the defendant, the quality of his defense counsel, and the geographic location of the crime, rather than any sense of shared morality on whether he should live or die–which, in itself, is so inherently prone to different judgments by different people. Every study that has ever considered the question of the race of the victim in capital cases has concluded that minority defendants who have been convicted of killing a Caucasian victim are substantially more likely to receive the death penalty than any Caucasian defendant who has killed a minority victim. Both the California Supreme Court and the federal courts have reversed many California death sentences because the defense attorney was incompetent, but California has yet to establish any commission to determine that any lawyer is qualified to represent a defendant facing the death penalty. Further, California still fails to comply with the minimum standards for the appointment and qualification of counsel in capital cases required by the American Bar Association. And even a cursory glance at California’s death row graphically demonstrates how the rate of defendants sentenced to death is extremely disproportionate from one county to another. Indeed, no defendant prosecuted for a capital crime in Shasta County was ever sentenced to life without parole instead of death until the middle of 2002.

The CDAA White Paper’s unwillingness to accept–or even acknowledge–these cold hard facts should not be surprising, given that it was not written by any independent organization or academic institution, but by the same prosecutors who seek the very executions of human beings they then try to justify in their White Paper. These are the same prosecutors who try to convince jurors to impose the death penalty many more times than jurors find is appropriate. We should recognize their position for what it is, and in the meantime, should strive to guarantee that the innocent are never sentenced to death, and that if anyone is sentenced to death, their fate cannot rest on the arbitrariness of race, the quality of the attorneys involved, or the geographic location where the crime occurred. Unless and until we can make that guarantee, we cannot ignore our responsibility to change the way the death penalty is imposed in California.

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Note: The California District Attorneys Association’s publication referred to in this release may be found on the Internet at this location: http://www.cdaa.org/whitepaper.htm

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Contact Persons For This Release:

Michael Ogul, Attorney at Law

Co-Chair, Death Penalty Committee

California Attorneys for Criminal Justice

(510) 272-6648

Email: michael.ogul@acgov.org

Joe Spaeth, Attorney at Law,

President, California Public Defenders Association (CPDA)

415-499-7511

Email: Jspaeth@co.marin.ca.us

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General information about the California Attorneys for Criminal Justice:

CACJ Executive Director Paul Gerowitz, Attorney at Law

Email: pgerowitz@cacj.org

Phone: 916-448-8868

General information about the California Public Defenders Association:

CPDA Executive Director Michael Cantrall, M.A., B.A.

Phone: 916-362-1690 x 8

Email: webmaster@cpda.org