MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. The confessed murderer of North County teenagers Chelsea King and Amber Dubois is set to be sentenced for his crimes this Friday. Because of an arrangement with San Diego County prosecutors, John Gardner will not receive the death penalty. To some observers, the Gardner case is just one more example of the arbitrary nature of California's death penalty laws. They ask how can the state's ultimate punishment be a deterrent if it is manipulated so often by lawyers and the courts? But some prosecutors argue the death penalty is not only a punishment, it is a critical form of leverage they need to get the guilty to confess and get resolution for many victims' families. Today we begin a two-part series on These Days focusing on the death penalty in California. This morning, we'll discuss how our laws regarding capital punishment have changed through the years, and how prosecutors use the death penalty. I’d like to welcome my guests. Gary Gibson is a professor at the California Western School of Law. Gary, welcome to These Days.
GARY GIBSON (Professor, California Western School of Law): Good morning.
CAVANAUGH: John Cotsirilos is adjunct professor of law at the University of San Diego. And, John, welcome.
JOHN COTSIRILOS (Adjunct Professor of Law, University of San Diego): Good morning.
CAVANAUGH: And joining us by phone, Michael Traynor, is a board member of the American Institute of Law. Michael, good morning.
MICHAEL TRAYNOR (Board Member, American Institute of Law): Good morning.
CAVANAUGH: Thank you for being here. Gary, as I said, let’s start out with the history of capital punishment in our state, and the death penalty has had a long history in California. Is it true that at one point actually county sheriffs could officiate at executions?
GIBSON: Well, that was true between 1851 and, well, 1872 and the 1890s.
CAVANAUGH: That kind of wild west that we think about, right?
GIBSON: Oh, sure. It’s – Literally, the executions took place in the individual counties. The people present were the county sheriff and, you know, literally whoever he invited. And then the state formalized that more by 1892.
CAVANAUGH: And as you say, the state formalized it. Did they take over the power of being the only people, only agency able to officiate at an execution?
GIBSON: The only one able to physically execute somebody in California became the State of California in 1892. And that only occurred at two places back then, that was San Quentin and Folsom.
CAVANAUGH: And how did they actually do that? I mean, did they start taking the prisoners away from the counties and putting them in state prisons? Is that how this whole system began?
GIBSON: The prisoners that were there for the transition or the condemned that were there for the transition, had to be physically transported to either San Quentin or Folsom, depending upon the nature of their crime and the nature of their prior crimes.
CAVANAUGH: And as you say, the form of execution was hanging.
GIBSON: At that point, the form of execution was hanging. It had transitioned by 1850, 1851 from shooting, and then in 1937 it transitioned to lethal gas.
CAVANAUGH: Right, that transition to the gas chamber. Why did that happen?
GIBSON: The transition from hanging to the gas chamber? Well, at that point in time, it was thought that gas was more humane than hanging.
CAVANAUGH: Did – Was there any other state that had a gas chamber? Because I know that California’s gas chamber is really rather famous among the states.
GIBSON: There were other states that had gas chambers and I don’t know the amount of use that they got. Certainly, California’s gas chamber got a lot of use between 1937 and 1967.
CAVANAUGH: Now as we’re talking about the history of capital punishment in California, what were the types of crimes that could lead to a death sentence? Obviously, I would suppose murder was always there as the primary one. But were there others that could be subject to the execution?
GIBSON: Sure. The things that were, certainly today, more controversial leading to death sentences were rape, robbery, kidnapping and, in fact, I believe someone in California was executed in the early sixties for assault.
CAVANAUGH: For just assault.
GIBSON: Yeah, well, obviously it was a serious assault…
CAVANAUGH: Yes.
GIBSON: …but it certainly was – it was non-murder.
CAVANAUGH: Well, one of the most famous non-murder executions in California’s history in the gas chamber was that of Caryl Chessman. Can you tell us about that case?
GIBSON: Sure. The Chessman case, Chessman was the rock star of his era, if you want, as far as death row prisoners. Chessman was convicted in 1948. He was what was known as the Red Light Bandit in Los Angeles. He used to flash a red light on cars, stop the cars. If there were men in the cars, he’d rob them. If there were men and women in the cars, he’d rob and – rob the men and rape the women. And so Chessman was convicted of kidnapping because during the course of one of the rapes of a 17-year-old, he moved the 17-year-old a few feet from the car. That got him a kidnapping charge, and he was executed 12 years later for kidnapping.
CAVANAUGH: That case became a cause celebre. Lots of people were against his execution because there was no murder involved?
GIBSON: Well, that was – We were transitioning at that point from a theory that only people who commit murders should face the death penalty, at least society seemed to be transitioning. And, in fact, four years after Chessman’s murder was the last execution for a non-murder based offense in the United States. Chessman spent 12 years on death row, which at that time was extraordinary. He was known nationally, known internationally, and there’s a really interesting facet to that case that the then sitting Governor Brown granted him a stay of execution at one time because Brown was so afraid that Eisenhower, President Eisenhower, going to South America on a trip would suffer violence because of the execution of Chessman in California.
CAVANAUGH: Wow.
GIBSON: And so Brown granted him a stay just to avoid any problems with an Eisenhower trip to South America.
CAVANAUGH: I am speaking with Gary Gibson, one of my guests. He’s professor at the California Western School of Law. We’re talking about the history of the death sentence in California and eventually we’ll be talking about how prosecutors use the death penalty these days. I want to begin to speak with John Cotsirilos, and he is adjunct professor of law at USD. There was a period after the execution of Caryl Chessman where – a period of 25 years where there were no executions in California. What was going on then?
COTSIRILOS: Well, what happened in California was that the death penalty was ruled unconstitutional in a California case called Anderson and then a year later in Furman v. Georgia, which is a United States Supreme Court case. Executions ended throughout the country in 1972 and the reason for that was that the death penalty was found to be unconstitutional under the 8th Amendment by the United States Supreme Court as it was applied or, in other words, as it was being used. And the reasons were two of the justices, Justice Marshall and Justice Douglas, felt the only reason they could determine that the death penalty was being imposed in some cases and not the others was race, that 60% of the people—they kept records between 1932 and 1972—60% of the people that had been executed were African-American. Of the rape cases, there were 455, 405 of those people that were executed were African-American. So almost 90% of the people being executed nationally for rape were black. So those two justices felt race was the determining factor and that was unconstitutional under the 8th Amendment’s cruel and unusual clause. And the other three justices that joined in the majority felt it was just simply arbitrary, in other words, you couldn’t tell why some people got the death penalty, and they felt it was unconstitutional under the 8th Amendment for that reason. So in 1972, executions ended throughout the country. In 1976, the Supreme Court in a case called Gregg v. Georgia with two other cases, ruled that under statutes that described what the court called guided discretion, a manner in which you narrowed the types of crimes that could receive the death penalty, they later held it could only be for murder and then gave juries guidance in a separate penalty phase as to reasons for and against voting for the death penalty. They said you could avoid some of the discrimination that occurred under Furman. And since then we’ve been on kind of a national evaluation as to whether that Gregg case is – the promise of the Gregg case has been true. California then reinstituted executions in the 1990s, I think it was 1992 with a man named Harris that was executed.
CAVANAUGH: Right. We’re going to – I’m going to ask you a little bit more about that case but when the Supreme Court stepped in, in 1972, what happened to the people who were already on death row?
COTSIRILOS: They were commuted to life sentences. And, in fact, I’ve represented somebody who was saved by that ruling. Those people did not face the death penalty, and then under the new statutes that were passed throughout the country in 1976, 1977 in California, they started processing people again to the death rows throughout the country.
CAVANAUGH: That’s one of the reasons why Charles Manson is not on death row, as he was originally sentenced to death but he was one of those inmates that basically had that sentence changed.
COTSIRILOS: Right, he fell – He won the lottery and fell within that window of time.
CAVANAUGH: Now, Michael Traynor, you are a board member of the American Law Institute. First of all, if you could, tell us what the American Law Institute does.
TRAYNOR: It’s an institution to clarify and simplify the law and engage in scholarly projects. And one of them relevant here is the Model Penal Code that it promulgated nearly 50 years ago.
CAVANAUGH: Yes, and so when the Supreme Court decided in the Furman case that the death penalty was being arbitrarily used throughout the states, what did the American Law Institute do?
TRAYNOR: Well, in 1962, it promulgated Section 210.6, which set forth the parameters for the death penalty. It provided essentially the blueprint for death penalty laws across the country, including parts of it were taken up in California.
CAVANAUGH: And how did it try to correct the flaws that were found in the original death penalty laws?
TRAYNOR: In two ways. It categorically excluded the death penalty for all crimes other than murder, and categorically excluded the death penalty for certain people who were, for example, retarded or juveniles. Then it set forth a set of discretionary factors for both aggravation and mitigation and those, while they looked good at the time, have not worked out in practice. The categorical exclusions have worked out.
CAVANAUGH: And I will get to the problem that the American Law Institute has now with those very guidelines that they drew up 50 years ago but at the time were they adopted by a lot of states? And do you think they were the basis upon which the Supreme Court basically said that executions could resume?
TRAYNOR: Yes, to both.
CAVANAUGH: Okay. So we get to the point, John, then where executions resume in California. And they resumed with Robert Alton Harris. That’s a case from San Diego. Tell us about that.
COTSIRILOS: Well, that was a notorious case where Mr. Harris killed a young boy who – young man who – and in the – in the – he was fleeing a bank robbery. And it was such a notorious case. It was a police officer’s son who actually was one of the people involved in the arrest of Harris. And it was such a notorious case that the federal jurisdiction and the state jurisdiction kind of fought over who would prosecute Harris. He was tried locally by now Justice Huffman, who is – was the prosecutor of the case. And he was sentenced to death and became the first person that processed through the state and federal system to face execution in the early 1990s. And his case was, I think, watched nationally because it was kind of viewed as a cutting edge case that might bring executions to areas of the country outside of what we call the death belt or the deep south. And it was so closely watched that he was actually placed into the gas chamber and courts were still weighing various issues in the case and he was taken out of the gas chamber until the United States Supreme Court issued a order that no further stays or stops of the execution could occur without an order from the United States Supreme Court. So then he was placed back in the gas chamber and executed.
CAVANAUGH: Now, Gary Gibson, the idea of Robert Alton Harris being executed was thought by some, as John just mentioned, to open up the flood gates for executions in California but that didn’t actually really happen, did it?
GIBSON: It did not. There’ve only been 13 executions in California between 1992 and today.
CAVANAUGH: And how many people are there on California’s death row?
GIBSON: Well, the number from last year was in excess of 680, so I think it’s probably closer to 690, 700 today.
CAVANAUGH: What are the procedures that – First of all, how long are people in general on death row before they are executed?
GIBSON: Well, the rule of thumb that’s given today is between 20 and 25 years, and it’s probably closer to 25 years and it’s probably going to edge up towards 30.
CAVANAUGH: And why does it take that long? What are the procedures that go into – are there – is it appeal after appeal after appeal?
GIBSON: No, that isn’t accurate. It’s a number of separate factors that are causing the delay in execution after a death verdict. One of the initial reasons is the delay in appointing lawyers. There are so many people and so few lawyers and they’re not very well compensated and not many want to take the job. It’s a full time job. So that’s delaying it. It’s causing three to five years of time to get a lawyer for somebody to even initiate the appeal process to the California Supreme Court. Along with that, the California Supreme Court has an appeal called the habeas – a habeas corpus petition which could be filed at the same time but it’s taking 8 to 10 years to get a lawyer appointed for that petition, and both of those have to go through the system. California Supreme Court’s the only place that can hear these cases, these death penalty cases. It’s taking them two and a half years from the time that all of the briefs are in to get it argued before the California Supreme Court, and then we go to federal court. And, unfortunately, what’s happening in federal court is that 70% of California’s death verdicts are overturned.
CAVANAUGH: I see. So let me ask you, John, because there’s also another situation that’s going on right now where there’s sort of a de facto moratorium on death – on executions in California because of the way we execute inmates. Can you tell us about that?
COTSIRILOS: Well, we used to execute inmates with the gas chamber and that was found to be cruel and unusual and we switched to lethal injections. And the United States Supreme Court approved lethal injections but found that they had to be administered in a way that was not – didn’t cause unreasonable pain and competently administered. It’s a three-drug cocktail, so to speak, of drugs. The first drug is supposed to anesthetize you, the second drug is supposed to kind of paralyze the condemned person, and then the third drug, which is potassium chloride, is supposed to stop your heart. It was found in some cases that the person wasn’t anesthetized and was feeling what the – was feared to be extreme pain. In fact, that cocktail had been – is not used to kill animals by veterinarians unless it’s administered correctly. So that’s been the mandate from the Supreme Court to the states, to find a way to competently administer this lethal injection and that hasn’t been accomplished yet in California so we haven’t had any executions since 2006.
CAVANAUGH: Now, Michael Traynor, as you told us, 50 years ago the American Law Institute wrote up some guidelines for death penalty statutes that were adopted by many states at least partially. And, however, now, the American Law Institute has just recently concluded that it cannot – can no longer support the death penalty. Tell us about that.
TRAYNOR: Yes, we recalled what was essentially a defective blueprint for the death penalty and we declined to issue a new one. We did not take a position on the moral legitimacy of the death penalty, simply saying that it’s just not workable.
CAVANAUGH: In an op-ed piece that you wrote, Michael, you wrote – you noted specifically California’s death penalty exemplifies the problems with the death penalty nationwide. Tell us about that.
TRAYNOR: Yes. There are about 690, 700 people on death row. It can take 25 years for mandatory appeals to be completed. And since 1976 or ’78, as has been mentioned, California’s executed only 13 prisoners while 72 have died of old age or other causes. So it’s as random or more so than lightning strikes.
CAVANAUGH: And yet – And yet, let me pose this to everyone here, John, Gary and Michael, and yet the death penalty is supported by a majority of people in California. So, Gary, where does that leave us?
GIBSON: Well, I think it’s supported by a declining majority of the people in California and I think it’s how you phrase the question. The question phrased if you support the death penalty will certainly, today, get a majority response. But a question of if we could guarantee you that lifetime imprisonment meant lifetime imprisonment, would you support the death penalty, you’ll get a declining majority. It leaves us in a position in California where we’re – unless we fix the primary problems with the death penalty system, we’re going to continue doing what we’re doing and death verdicts and death sentences will become, as Michael said, like being hit by lightning. Nothing is going to get fixed unless a conscious effort is made to fix it, and that’s going to take a lot more money.
CAVANAUGH: And John.
COTSIRILOS: Well, the death penalty has been supported by a majority of the populations in all the countries in which it’s been eliminated. It’s a very – it’s a red-button issue, it’s something people get emotional about. And in times when people are fearful, it’s an easy button to push whether it’s effective or not, and I think that’s the situation in the country. And it costs us about a billion dollars every five years to continue to have the death penalty. In fact, it’s, as Gary’s just described, it’s – and the commissions that have studied it in California have found under the most recent commission under Attorney General Van de Kamp, it’s essentially a broken, non-functioning system. And it still suffers all the problems that were – the courts were concerned about at the time of Furman. Justice Marshall wrote that he was concerned about the racial factor in determining who receives death; that still is the primary factor, particularly in race of victim. Still, 40% of our death rows are African-American, and 80% of the people who are killed that warrant a death – prosecution are white, even though a majority of the victims, throughout the country, of homicides are non-white. And we now know that with the advent of DNA testing and other scientific advances that a very large number of people, more than 120, have been erroneously sentenced to death and a group of people were completely innocent, at least 40, that have been sentenced to death. So the concerns that Justice Marshall expressed in 1972 still exist today with the added element that we know that the people – the system is not perfect and people are being erroneously sentenced to death. So it’s not an accurate system, it’s not a functioning system, and it also takes a huge percentage, a huge part of a budget in a time of necessary budget priorities that – out of our budget. So it’s something that either politicians and legislatures need to have the courage to address or it’ll continue to be a waste of public funds.
CAVANAUGH: And, Michael, our executions in California have stopped because of a court ruling. How close are courts, including the U.S. Supreme Court, to perhaps overturning the death penalty nationwide?
TRAYNOR: I can’t predict that but there’s certainly a lot of sentiment about it. It does bear noting that three developments bear on that, I think. The number of individual who’ve been released from death row after establishing their innocence, the fact that 15 states have abandoned it, including New York, New Jersey, and New Mexico, recently, and the emerging alternative of life without the possibility of parole, which is something the American Law Institute is presently studying.
CAVANAUGH: What do you say to people, Michael, who feel that this is a just punishment for certain crimes, and that would include many, many of the nation’s prosecutors and district attorneys. Michael?
TRAYNOR: We don’t take a position on the justness or the moral legitimacy of it but it’s really a false promise to say that the death penalty will be actually imposed. To tell victims that is promising something that is not possible to achieve under today’s unworkable system.
CAVANAUGH: Let me pose that to John and Gary as well, the idea that many prosecutors, many district attorneys, feel that this is – they must have the death penalty in order to be able to work in this criminal justice system and try to get to the truth and to justice in many cases. Gary.
GIBSON: I think that’s a false choice. It’s shown by the way that the death penalty’s administrated across California. Some district attorneys don’t use the death penalty in any fashion. They don’t seem to be suffering any debilitation in their criminal justice system in their county. And some counties use it incredibly prolifically. The example is in San Diego County currently, we have one active death penalty case. And in Riverside County, I believe they have about 50. So that’s counties of 3.5 million and 2.5 million, us being the 3.5. And so that’s a huge discrepancy and district attorneys can do virtually anything they want. I think the problem is not morality, it’s whether it’s working. It’s not working. It’s dysfunctional. We need to fix it or abandon it. This middle ground gets us nowhere.
CAVANAUGH: And, John, do you agree?
COTSIRILOS: I agree. I think it’s actually somewhat cruel to the victims’ families, in a sense, to hold out this hope to them, make them believe that there’s going to be closure, and then have them sit through a torturous trial. These trials are gut-wrenching for people to sit through, particularly the victims’ families. And then have them see a system that doesn’t function, it’s cruel in a certain sense. And also the rest of the world has shown that the death penalty is not necessary for justice. None of the world – I think we’re behind China, Pakistan, Iraq and I’m missing one other country. We’re fifth in the world in executions. Western Europe, Canada, the rest of the world doesn’t have the death penalty and none of their homicide rates have risen. I think it just gives – it’s, again, it’s a matter of societal expenditure that is being made that’s not giving society what is being promised to it.
CAVANAUGH: Well, I want to thank my guests, Gary Gibson, John Cotsirilos and Michael Traynor. Thank you so much for speaking with us today.
COTSIRILOS: Thank you.
GIBSON: Thank you.
TRAYNOR: Thank you.
CAVANAUGH: We’re going to take a break and when we return, we will continue to talk about the death penalty. We’ll speak with a San Diego prosecutor and a public defender about how the death penalty is applied in criminal cases. You’re listening to These Days on KPBS.
CAVANAUGH: I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. We continue our discussion about the death penalty in California. Executions in the state have been in a de facto moratorium since 2006 when a federal judge ruled the drugs used for lethal injections were potentially a violation of the 8th Amendment. But that hasn’t stopped California prosecutors from asking for the death penalty or juries from recommending it. To find out how the death penalty figures into criminal prosecutions in San Diego, I’d like to welcome my guests. Daniel Lamborn is Chief Deputy District Attorney for the County of San Diego. Good morning, Dan.
DANIEL LAMBORN (Chief Deputy District Attorney, County of San Diego): Good morning, Pat.
CAVANAUGH: I’m Maureen.
LAMBORN: Oh, Maureen. I’m sorry.
CAVANAUGH: And – That’s okay. Richard Gates is Deputy Public Defender of the County of San Diego. And, Richard, good morning.
RICHARD GATES (Deputy Public Defender, County of San Diego): Hello. Good morning.
CAVANAUGH: Now we’d like to get our listeners involved in the conversation if we could. Do you think the death penalty is used correctly in California? How would you change it? Call us with your questions and your comments. Our number is 1-888-895-5727, that’s 1-888-895-KPBS. Dan, if you could, this is just sort of a big overview question. But what’s your experience with the death penalty as a prosecutor?
LAMBORN: Well, I had a case back in the early nineties of a serial killer that stalked women, six women, stalked them and broke into their homes and stabbed them to death. We prosecuted that case in 1993. He was convicted. The jury recommended death, as I was asking for, and he’s been up in San Quentin since 1993.
CAVANAUGH: Again, like – as we heard in the last half hour, a lot of people just – a lot of condemned prisoners just stay there for many, many years.
LAMBORN: Yeah, it takes a while. It took him five years just to get a defense attorney appointed to his case and then it took 17 years for that to go from conviction on up to getting affirmed by the California Supreme Court. It’s a long process.
CAVANAUGH: How does the San Diego DA’s office view the death penalty today? It’s still an option but how are we using it?
LAMBORN: Well, of course, Bonnie Dumanis is the one that makes the call on that but she has a process that she goes through where she has a panel of experienced prosecutors who have prosecuted murders, death penalty cases, they review a possible case for death penalty. They then make a recommendation to her. She talks to the defense, asks them for any input they have. And she also talks to the victim’s family. She educates them on the process, that it’s a long process, and then gets their input before she makes a call on whether it will proceed with the death penalty.
CAVANAUGH: Richard, defense attorneys are consulted in this process?
GATES: Absolutely. That’s part of the protocol of the district attorney’s office.
CAVANAUGH: And what kind of input do you give in such an instance?
GATES: We prepare our cases from the very beginning in an attempt to develop mitigating facts that would be useful in any discussion with the district attorney as to whether it would be appropriate to seek the death penalty against the particular individual that we’re representing. So we don’t really talk about the case, we talk about what facts and factors influenced our client’s life and how we got to this point in time.
CAVANAUGH: I think many people are familiar with the idea now that we have in California that when a murder is committed and the idea of special circumstances being part of that situation, whether it was for gain or there are a whole number of different special circumstances that might be involved. When their case comes across your desk, Dan, and it’s a murder with special circumstances, how automatically do you think of the death penalty? Is that your go-to position, so to speak, in a case like that? Or is that just the place where you start?
LAMBORN: Well, it’s actually a rare case where we, or the DA, ultimately decides to go for the death penalty. We have, obviously, a number of murders without special circumstances. We have a number of murders that qualify with special circumstances. But even among those, it’s a pretty rare call where the DA says, yeah, this is the right case for the death penalty.
CAVANAUGH: And what are some – take us through some of the qualifications. Would it have to be more than one special circumstance? What would be an array of factors that would say – that you would make the determination this is the kind of a case that would really need the death penalty?
LAMBORN: Well, of course, there’s no mathematical formula for this. Every case is unique. Every case is agonizing in coming to a decision like that. There are a number of factors that are involved. Obviously, the crime itself is key, how it was committed, how awful was it, and how violent was it? The defendant’s background, does he have a history of violence? Does he have a felony background? Victim impact is also a very important factor here as well. And so it’s – there’s nothing mathematical about it, there are just – It’s impossible because every case is so individualized. Every defendant is individualized with the defendant’s own background. So it is – it’s a complete picture, a totality of that picture that we look at before the DA makes a call.
CAVANAUGH: We – I want to remind our listeners we are inviting you to join the conversation. If you’d like to comment or if you have a question about how the death penalty is used in California or in San Diego, 1-888-895-5727 is the number, 1-888-895-KPBS. Richard Gates, Deputy Public Defender in the County of San Diego, tell us your experience as a public defender on the other side with the death penalty.
GATES: Well, our statistics show us that a large number of murder cases have the potential of special circumstances being attached to them. I think the Van de Kamp report cited about 87% of the cases statewide that were murder cases could have a special circumstance attached…
CAVANAUGH: Is that because there are a lot of special circumstances?
GATES: Exactly.
CAVANAUGH: Okay.
GATES: Exactly. So what we do is we have to recognize the potential of the death penalty being imposed and that we have an obligation to investigate our client’s background, his family history, all of the mitigating facts and circumstances about that person’s life because the death penalty is a real potential. There’s no way for us to know when the case first comes into our office what any of these facts are or what kind of presentation we’re ultimately going to make to the district attorney’s office. And it would be the height of incompetence to look at a case when you first receive it and make a decision, well, this isn’t the case the death penalty is appropriate for because we don’t make that call.
CAVANAUGH: Right, right.
GATES: So we have to investigate the case both from a guilt perspective to interview percipient witnesses and test out the evidence and test out prosecution theories, and we have to investigate the case from a mitigation point of view. When we meet with the district attorney, what are we going to say?
CAVANAUGH: And how do you make that determination about what you’re going to say?
GATES: Well, first you don’t foreclose the possibility of any investigation revealing information to you that’s going to be helpful because we don’t know what the story is. And while you can get some information by looking at rap sheets and criminal histories and things like that, these people all come to us with their own personal story that started long before they developed any criminal rap sheet or committed any crimes. We go all the way back to their childhoods to find out how was this person raised? How did it get to the point where we’re even engaging in this discussion? And we find that by going back and doing that kind of investigation, while it’s arduous and it’s expensive and it’s time consuming, we get a much better picture of the factors, the social factors, the environmental factors, the personal factors that cause people’s lives to go awry.
CAVANAUGH: We often hear, Richard, that the public defender’s office doesn’t have a lot of money or resources to sort of defend capital cases. Is that true?
GATES: A capital case puts a tremendous financial strain on the office of the public defender and any entity that engages in the defense of a capital case. We are hamstrung by budgetary constraints just like every other governmental agency and so we try very hard to use our resources as best we can to devote those resources to legitimate leads. Do we run up against obstacles? Of course we do, because the administration of cases is left to the courts and courts are very unsympathetic about pre-trial delays even when those pre-trial delays are necessary for the purposes of doing investigation. We see our job one way. Sometimes the prosecution doesn’t agree with the way we see our job. And frequently the courts don’t agree with us as to how we see our job. And so there are tensions that ultimately become financial tensions because if you have to do work in a hurry, other work is left undone.
CAVANAUGH: We just heard from a group of people who teach law, who talked about – teach and study law, who talked about the problems with the death penalty in California and how it is so randomly used and how it’s like a lightning strike. And they were uniformly suggesting that it should either be completely revamped or abandoned. And I’m wondering, Dan, as someone who deals with making decisions about whether to ask for the death penalty, being in there dealing with criminal cases, how do you view the death penalty? How does it serve to work towards justice in your opinion?
LAMBORN: Well, there are certain cases that are just apart in different than others. You can imagine a murder case where a defendant goes in, shoots some poor clerk in the middle of a robbery when the gun goes off accidentally, that’s a murder. And that is a far cry from somebody who might be, for an example, a serial killer who enjoys killing people. These are two murders, two separate cases involving murder, but they are so very different. And, certainly, the law in California, as the voters have made clear, is that death penalty should be on the table for the right case.
CAVANAUGH: Let’s take a call. We’re – we have invited our listeners to join the conversation. 1-888-895-5727 is the number to call. Kelly is on the line from Escondido. Good morning, Kelly, and welcome to These Days.
KELLY (Caller, Escondido): Hi. Thank you. I just have one comment, and that’s in my opinion the death penalty has one purpose and that’s in plea bargaining. For example, if you think the defendant has some information, for example if they’ve killed someone and hidden the body and we want to find the body for closure for the family, or we think they’ve committed some other crimes and want to get information from them that way. I think that’s the only thing that the capital punishment can be useful for. As far as any other reason, like getting justice or trying to get rid of these people off the face of the earth, I think that is inconsequential.
CAVANAUGH: Okay, Kelly, thank you for your comment. I’m going to go to both Dan and Richard on this. This is – I think in – You see this on TV shows, I think it’s in the general psyche that that is how the death penalty is used a lot, to provide some leverage when you’re dealing with a particular criminal case. Do you use the death penalty that way, Dan?
LAMBORN: Well, Bonnie Dumanis is very clear that we don’t leverage the death penalty for plea bargain purposes. She’s going to make a call based on the facts and then go forward with it. That’s not to say that at any given time that new information doesn’t go forward and she’ll say, well, hold it. We thought this was this type of case and it turns out there are more mitigants than we had expected or thought existed previously so she does not use the death penalty for plea bargaining purposes.
CAVANAUGH: Richard, would there ever be a circumstance where a client might have some information which you would only disclose if certain potential punishments were taken off the table?
GATES: Well, in the representation of that client, I would have to strike the best possible deal for my client under those circumstances. That’s why, with respect to being a defense attorney, you don’t work in the realm of policy because your obligation to that individual client overwhelms everything else and so my job is to not worry about systemic problems with the death penalty, my issue is whether I am going to do everything I can to avoid having the death penalty imposed on my client.
CAVANAUGH: I understand. And has, indeed, the death penalty been used – either used or not used, depending on what a client might reveal to a prosecutor?
GATES: Well, it hasn’t happened in any of my cases but I will tell you this, that any client who is facing a first degree murder case with a special circumstance attached to it has to feel the presence of the death penalty as a possible punishment and probably feels, as the client, that that death penalty is leverage against him for the purposes of engaging in plea bargaining. That’s just a reality. That’s not a moral question. That’s a – that’s just a reality for that client. I’ve been involved in the process with Bonnie Dumanis’ office for several years and have made probably 15 presentations to Ms. Dumanis on the issue of the death penalty and I’ve never felt that I was being coerced during any of those meetings. It was a practical legal reality. My client was facing a punishment and I had to make an argument to, hopefully, avoid that punishment.
CAVANAUGH: Let’s take another call. We are taking your calls at 1-888-895-5727 or you can comment online at KPBS.org/thesedays. Kyle is on the line calling from Yuma. Good morning, Kyle. Welcome to These Days.
KYLE (Caller, Yuma): Hi. Good morning. Thanks for taking my call. I guess my question is, is – or a statement that you might be able to touch on, is would you think that – or would I be too far off by saying that a death penalty case now is kind of becoming synonymous with just a very expensive life without parole sentence?
CAVANAUGH: Okay, a fair enough question. And, Dan, Richard, would you like to comment?
LAMBORN: Sure. It’s a – there’s no question about it, there are obstacles to going from conviction to execution and as we heard on the previous segment, it can take 20, 30 years for this happen. And, in fact, most currently we have a stay on the imposition of the death penalty pending some findings, some recommendations by the state to the federal judge up in Northern California. So it’s a long process, there’s no question about that.
CAVANAUGH: And Richard.
GATES: Well, clearly the point being made is whether we want to spend those resources in pursing a penalty that’s never going to reach actuality or spend the money in another way that gives people some real relief, some real help, real crime prevention, drug treatment, mental health treatment. These are root causes of problems within our system. Do they always lead to death penalty cases? Of course not, but we can relieve a lot of suffering by spending the amount of money that we spend on the death penalty in other areas.
CAVANAUGH: We heard, again, in our previous panel, that there are differences between counties in how often the death penalty is used. Here, apparently there’s one pending death penalty case in San Diego County, and we were told that there are 50 pending death penalty cases up in Orange County (sic). And I’m wondering, do we see the difference between district attorneys in the same county. Dan, were you serving under Paul Pfingst and was there a difference in the way the death penalty was decided upon, whether or not to seek it, when he was county district attorney?
LAMBORN: Well, I served under two prior district attorneys, Edwin L. Miller, Jr. first and then Paul Pfingst and now Bonnie Dumanis. And they – there were different procedures there. Ed Miller had his procedures. Things got a little more formalized under Paul Pfingst and then Bonnie has the procedure that I just described to you. So the end result of those, all three DAs, I believe, were very thoughtful in considering the death penalty. Would listen to the evidence and listen to the victims.
CAVANAUGH: Does that – Is that troubling at all, the fact that there are the same laws on the books and yet they seem to be interpreted so very differently from county to county within California?
LAMBORN: Well, you – It kind of reflects the community. I mean, you go to San Francisco, where they maybe have one person on death row out of the city and County of San Francisco. They have a very different community than Orange County or, certainly, San Diego. And so it – there is some reflection there of the community’s sense in standards.
CAVANAUGH: And yet, Richard, what does that have to do with the law?
GATES: Well, it just goes to show how arbitrary the application of the death penalty can be, that 100 miles away in Riverside, they have 50 pending cases and their population base is less than ours and yet the demographics seem relatively similar. We have one pending case. When you have a record like we have in California where of those cases that are reversed by federal courts, 70% of them are for ineffective assistance of counsel. How can you possibly hope that at one time you could litigate 50 death penalty cases in a county the size of Riverside and hope for adequate representation for any, let alone all, of them?
CAVANAUGH: Let’s take another call. John’s calling us from San Diego. Good morning, John, and welcome to These Days.
JOHN (Caller, San Diego): Well, thank you for taking my call. I was called for jury duty for a capital punishment case and part of the selection process for the jurors, there was an extensive, several-page questionnaire that was given to all of us to fill out. And the majority of the questions were regarding the sentencing with capital punishment and death penalty versus life imprisonment. And kind of, I felt, skipped the major process of guilt or innocence and I just wondered if that’s the standard practice to use that questionnaire and, if so, who puts it together?
CAVANAUGH: Thank you for that question. Let me go to you first, Dan.
LAMBORN: Yeah, that is common in capital cases to have those questionnaires. It is compiled through a collaborative effort, if you will, between the defense, the prosecution, and the judge with the judge, of course, having the final call on what goes into those questionnaires. And the reason they have to include both guilt and penalty type questions is everybody has to assume that we’re going to get to that penalty phase because it’s too late then to ask the jurors, well, what do you think about the death penalty? Because they’ve already voted for guilt and we have to move into that penalty phase. So that’s why we have to ask all those questions at the beginning.
CAVANAUGH: And I would assume, Richard, that kind of assumption being made on that form is not one that you like.
GATES: No, of course not. In fact, the conventional wisdom of those attorneys who have extensive practice in death penalty cases is woe to you if you think you have guilt phase issues because you’re picking a death penalty jury. Death penalty juries are notoriously conviction prone because there’s a process called death qualification. You have to be willing to impose the death penalty in this specific case in order to serve on it. If you’re not willing to impose the death penalty, you cannot serve on a death penalty case. So you can imagine how that erodes the type of jurors that we would normally want to have in any case let along a death penalty case. So the caller makes a good point, that we tend to gloss over the guilt phase issues in pursuit of jurors that will be fair on the penalty issue because we have that cloud over us throughout the litigation.
CAVANAUGH: Now both of you gentlemen deal with the public all the time when you choose jurors and so forth, and I’m wondering, Dan, I’ll go to you first, what is it that you think people don’t understand or misunderstand about the use of the death penalty in San Diego, in California?
LAMBORN: Well, I think there is a stark reality that hits jurors when they hit the courtroom. Many people favor the death penalty. When they get in the courtroom, you say, hey, are you willing to look at this defendant in the eyes and say this is the right case for the death penalty? And so the stark reality of it hits them at that time, so I think there is a check on people when they enter the courtroom at those times. And I’m not sure people understand the long process either of going from conviction to execution, that it is a long process. Victims have to endure anniversaries, holidays, and that sort of thing and they’re still waiting for this execution to happen. So it’s a tough process.
CAVANAUGH: And also, you just reminded me, Dan, when I pose this to Richard, it’s been said that California, unlike, let’s say, the state of Texas, is very gung-ho when it comes to the theory of the death penalty but a bit more queasy when it comes to the actual recommendation of death or actual executions. Would you agree?
GATES: I would agree, and I think part of it is what Dan was referring to before and that is just the atmosphere, the social atmosphere, the cultural atmosphere of the jurisdiction. A death penalty case is a desensitizing, dehumanizing experience. Just imagine sitting in a room for weeks at a time talking about putting someone to death. And so it is no great surprise to me that those citizens who take their obligations seriously are moved by the depth of the commitment that they have to have to be a juror in that kind of case.
CAVANAUGH: We are out of time. I want to thank you both so much. Deputy District Attorney Dan Lamborn, thank you.
And Deputy Public Defender Richard Gates, thank you so much for joining us.
GATES: Thank you, Maureen.
LAMBORN: Our pleasure, Maureen.
CAVANAUGH: I want to tell every – there are people still on the line and we couldn’t get to your calls. If you would go online and post your comment, that’s KPBS.org/thesedays. Now tomorrow we’ll talk about the emotional aspects of the death penalty to supporters, to opponents, and to the victims’ families. That’s tomorrow starting at nine right here on KPBS. Stay with us for the second hour of These Days coming up in just a few minutes here on KPBS.
