Eye on the Court: Death Penalty Creates Unequal Application Under the Law

Last week, a Federal District Court Judge would invalidate the death penalty in the case of a man who has sat on death row for over 20 years. Federal Judge Cormac J. Carney wrote in a decision that – while limited – could have widespread impacts, “On April 7, 1995, Petitioner Ernest Dewayne Jones was condemned to death by the State of California. Nearly two decades later, Mr. Jones remains on California’s Death Row, awaiting his execution, but with complete uncertainty as to when, or even whether, it will ever come.”

“Mr. Jones is not alone,” writes Judge Carney, “Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution.”

The ruling prompts Woodland Daily Democrat Editor Jim Smith to note, “William Gardner, 30, has been charged with the brutal Nov. 18, 2013, murder of Winters resident Leslie Pinkston, 32. He’s scheduled to stand trial next month.”

“Yolo County District Attorney Jeff Reisig and Deputy District Attorney Deanna Hays — who are prosecuting the case — made local news of sorts recently when they decided to not pursue the death penalty for Gardner,” Mr. Smith writes.

“People may not like that decision, but we think it was the right course of action. And we’re not the only ones. Also in favor of doing away with the death penalty is a federal judge who called it cruel and unusual,” he continues. “Why? Because it takes too damn long for the state to enact the ultimate penalty for a person convicted of murder.”

While we agree it takes a long time for the system to work, as Mr. Smith added, “we have issues with the death penalty anyway. Too many people — mainly of color — have been wrongly convicted and then put to death across this nation. We’re becoming more and more convinced that the death penalty is cruel. And, for what it’s worth, there are fewer nations in the world who still have the death penalty.”

But Mr. Smith’s column reminded us that on July 25, 2012, Jeff Reisig wrote an op-ed in the local papers entitled, “Sometimes seeking justice demands the death penalty.”

In that article he wrote, “There are some murders that are so horrific that we, as a democratic society, have concluded that the death penalty is an appropriate punishment.”

He would then recount the brutal 2008 murder of Deputy Tony Diaz on June 15, Father’s Day, when Mr. Topete “fired an assault weapon 17 times at Diaz, penetrating his bullet proof vest and fatally striking him in the chest.

“At the time of the shooting, Topete was on parole from state prison for shooting an unarmed man in front of a convenience store in 1998. He was also a validated gang member and had been previously convicted of multiple felonies under California’s three-strikes law.

“Diaz had attempted to contact Topete for violating parole by drinking and driving with his infant in his car. Topete led Diaz on a 100 mile-per-hour chase before abandoning his car and baby on a dark dirt road in rural Yolo County. Instead of pursuing Topete on foot, Diaz stayed with Topete’s abandoned baby.

“Minutes later, Topete, who was lying in wait behind the corner of a building with an assault weapon, opened fire while Diaz had his back to him. In October 2011, a jury convicted Topete of murder with multiple special circumstances and sentenced him to death. At the time of his murder, Deputy Tony Diaz was 37 years old. He is survived by his children, parents, siblings and many other family members, friends and loved ones.”

However, while the murder committed by Mr. Topete, for which he was convicted and sentenced to sit on death row for the rest of his life barring a change in the state law one way or the other, was brutal, it is unclear why it falls into the category of being so “horrific” that “the death penalty is an appropriate punishment” – but the November 2013 murder of Leslie Pinkston by William Gardner does not.

On November 18, 2013, Ms. Pinkston was sitting in her car, waiting to go to work on Railroad Avenue in downtown Winters, when she was shot. Mr. Gardner allegedly shot his ex-girlfriend four times, once in the head.

Like Mr. Topete, Mr. Gardner is also charged with enhancements of lying in wait and the intentional and personal discharge of a firearm causing death. Moreover, Mr. Gardner committed this crime while on release from custody on bail or own recognizance for a pending felony offense, and there were added enhancements to his charges of murder, as well as possessing a firearm by a person previously convicted of a felony and stalking.

So, why does Marco Topete’s crime rise to the level of the death penalty but not William Gardner’s crime? One of the problems is the unequal application of the death penalty, not only across jurisdictions and states but within the same jurisdiction, depending on who the victim was.

A law enforcement officer’s killing is more likely to face the death penalty, a killing of a white person by a minority is more likely to see a death penalty charge; the least likely cases are with a minority victim, particularly if the perpetrator is white.

“We want California to know who’s behind the effort to abolish the death penalty. And, we simply want the truth to be told,” Mr. Reisig wrote in 2012. “The ACLU and its agents are responsible for endless delays in the criminal justice system, frivolous appeals and a mountain of misinformation. And now, they claim the death penalty is irrevocably broken and costly and should be repealed.”

In a response, though, Yolo County Public Defender Tracie Olson pointed out that, why Mr. Reisig may lament the delays, “he conveniently ignores the fact that the National Registry of Exonerations has recorded over 920 exonerations across the United States since 1989, more than 100 of which had been sentenced to death.”

For Jim Smith, “U.S. District Judge Cormac Carney’s decision only underscores what most of us already knew about how the state punishes its most despicable murderers.”

“The way the death-penalty law is applied — more to the point, not applied — hundreds are sentenced to die but the vast majority of them live in prison for years while awaiting appeals. As a result, the threat of execution is not the crime deterrent it should be, and murder victims’ loved ones seeking retribution may suffer through decades of false hope. The legal and incarceration costs to the state run to tens of millions of dollars a year,” he continues.

“In his ruling Carney added another layer to these objections. The long delays and uncertainties in the state’s death-penalty system, said the Orange County judge, violate the U.S. Constitution’s prohibition on cruel and unusual punishment. The application of the death penalty, he wrote, shouldn’t be random and arbitrary,” he said.

We see that played out here in Yolo County.

“We would prefer that the death penalty be abolished,” he adds. “But, failing that, state legislators should react with renewed efforts to streamline the cumbersome death-penalty appeals process and move to a legally passable single-drug protocol for lethal injections.”

The problem is that streamlining the process means the introduction of errors. Across the nation we have seen numerous cases where the death penalty has been carried out amid plausible claims of innocence and questions about the mental intelligence of defendants.

As Tracie Olson noted in her 2012 response piece, “A handful of Americans have been exonerated posthumously.  Many believe that Cameron Todd Willingham, executed in 2004 for the arson death of his three daughters, will likely be another, as arson experts have all but debunked the evidence that convicted him at trial.  At least ten more have been identified as executed but probably innocent.”

She added, “I doubt anyone could defend the notion that the long legal processes that freed these innocent people were frivolous.  Indisputably, those exonerated posthumously did not receive due process of the law, and the established checks and balances of the criminal justice system irrevocably failed them.”

Back in May of 2013, the Mississippi Supreme Court halted the scheduled execution of Willie Manning a mere four hours before he was scheduled to be put to death by lethal injection.

The staying order, brief as it is, does not specify why the court blocked the execution, but the Atlantic magazine, which has extensively covered the case, notes, “The Mississippi court’s order Tuesday is likely based upon the scientific evidence that was and was not introduced at trial. Manning’s attorneys have long argued that state officials should test DNA and fingerprint evidence from the crime scene — evidence that has never been tested and that would either incriminate Manning definitively or perhaps identify someone else who may have committed the crimes.”

That a case as flawed as this one came within four hours of execution demonstrates that streamlining the death penalty process may expedite executions, but it will also expedite additional problems in the system.

Jim Smith concluded, “California residents should press their representatives with reminders that a majority of voters want to keep the death penalty — but it must be applied in a more reasonable, efficient and humane way…. Carney’s assertion that long delays in carrying out executions is cruel to the condemned may be fresh legal reasoning. But the general idea that the current system needs fixing is nothing that wasn’t already known.”

—David M. Greenwald reporting

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