Jerry Brown Has Little Basis to Claim Lack of Innocents on Death Row

He then adds, “Governor Jerry Brown himself has recently stated that he has not seen any evidence that there are any innocent inmates on California’s death row.”

In case you missed it back in March, Jerry Brown was interviewed by the San Francisco Chronicle Editorial board and asked if he had “considered naming a panel to look at death row and recommend any cases deserving of a commutation.”

His response stunned many, “I don’t think we need a panel. There’s plenty of lawyers around that if they feel there’s such a case, they’re going to let me know about it.”

He continued, “As Attorney General, I think the representation was good. I think people have gotten exquisite due process in the state of California. It goes on for 20 or 25 years and to think that they’ve missed anything like they have in some other states, I have not seen any evidence of it. None. I know people say, ‘Oh, there have been all these innocent people,’ Well, I have not seen one name on death row that’s been told to me.”

At first glance, Mr. Reisig can perhaps be forgiven for citing Jerry Brown as a source here, after all he was recently Attorney General, and he is known for his anti-death penalty position.

But upon further review, this is just another area of Jeff Reisig’s column that fails to really assess the evidence.

We spoke to Ellen Eggers, who is one of our speakers tonight.  She works for the State Public Defender’s Office and their office is in charge of handling first order death penalty appeals.

Her basic response was that Jerry Brown could not possibly make that statement.  She that her office has several that may be innocent, but that you can really never know for sure – either way.  And that’s exactly the problem.

There are several cases of possible factual innocence where the client may not have been involved at all.  One of those cases involves faulty night-time eyewitness identification, similar to the case of Franky Carrillo, who will also be speaking tonight.

She notes that while the client says he is innocent, he also has lived a life of crime.  At the same time he had cleaned himself up was also at the point when he was arrested and convicted for the murder.

So how can Jerry Brown be assured of this man’s guilt?

Another interesting point is how does one define innocence?  There are those innocent of any crime, but also those who may be innocent of a capital crime.  For example, there is a case of a guy who was along for the ride and probably not an active participant in the murder.  However, the others in the car turned on him.

Is this guy totally innocent of any crime?  Absolutely not.  But he is probably should not have the death penalty and the jury in that case did not get the true story.

There are two pretty well-known cases where there is at least reason to believe the person might not have done it.

One of them is Kevin Cooper, who may be the next person in California executed if California does not overturn the death penalty in November and it resumes executions.

He was convicted of the murders back in 1983 of a California couple, their 10-year-old daughter and her 11-year-old friend.

The problem, as NY Times columnist Nicholas Kristof wrote in December 2010, “California may be about to execute an innocent man.”  At least that’s the view of five federal judges who “argue compellingly that he was framed by police.”

Wrote Mr. Kristof: “Mr. Cooper’s impending execution is so outrageous that it has produced a mutiny among these federal circuit court judges, distinguished jurists just one notch below the United States Supreme Court.”

The San Francisco Chronicle writes: “Just one eyewitness survived the horrific scene, a 9-year-old boy whose throat had been sliced. His initial account of the attack is one of many disturbing contradictions that led five federal judges to take issue with their colleagues’ decision to put a stop to Cooper’s appeals.

“The boy recalled three attackers – all white. Cooper is black. The surviving victim later changed his story to claim that he saw a black man with a great “poof” of hair standing over his parents’ bed. Cooper, who had just escaped from a nearby minimum-security prison, wore his hair in cornrows at the time.”

Mr. Kristof reports, “William A. Fletcher, a federal circuit judge, explained his view of what happens in such cases in a law school lecture at Gonzaga University, in which he added that Mr. Cooper is ‘probably’ innocent: ‘The police are under heavy pressure to solve a high-profile crime. They know, or think they know, who did the crime. And they plant evidence to help their case along.’ “

On the other hand, Debra Saunders, who coincidentally wrote on Jerry Brown’s Capital Punishment pronouncement, argues that “Kevin Cooper is a murderer.”

Mother Jones makes a critical point, “The dispute here highlights the problem with focusing on individual death row inmates: every controversial death penalty case can be argued either way. I understand that it might be easier to get caught up in the pursuit of one person’s exoneration than it is to campaign for a blanket ban on a practice that has been almost entirely eliminated in other first-world democracies. Ultimately, not every person the Innocence Project or Nick Kristof campaigns for is going to be actually innocent. The difficulty with the death penalty, though, is that nagging doubt that perhaps not every person who is actually executed is actually guilty.”

And that is our point here.  How can Jerry Brown argue he knows for sure that the guy is guilty?

Jarvis Masters is another relatively well-known death row inmate.  His case involved the killing of a San Quentin guard in 1985 with a makeshift spear.  Three men were tried for the morder, but only Mr. Jarvis was given the death penalty.

The California Supreme Court issued in 2007 what has been classified as “a very strong and unusual order to California state prosecutors to respond to Masters’s claims in the petition. The order to show cause requires the Attorney General to show why Masters is not entitled to a new trial for eight reasons. Masters’s lead lawyer, Joe Baxter, called the California Supreme Court’s Order to Show Cause ‘unique and breathtaking in its scope.’ “

“On April 11th, 2008, the California Supreme Court ordered an evidentiary hearing. Joe Baxter, Masters’s lead lawyer said the court’s order ‘allows us to prove his innocence on many different fronts and allows us to prove he didn’t have a fair trial.’ “

The evidentiary hearings occurred in 2011.  But the judge in that case found no basis for any of the Supreme Court’s questions, concluding: “The basis of Petitioner’s habeas corpus proceeding consists primarily of recantations from unreliable witnesses who testified in the 1990 trial.  The witnesses are all men with prison records who belonged to the same prison gang as petitioner.  The jury had an extensive opportunity to hear and evaluate the witnesses’ testimony at a time when the events were far fresher in the minds of the witnesses.”

Ellen Eggers notes that, beyond Mr. Cooper and Mr. Masters, are numerous others who lack the publicity.  But more importantly in evaluating Jerry Brown’s claim, of the more than 700 inmates on death row, there are several hundred who do not have counsel and/or habeas counsel, so we really know nothing about their cases.

And if the public defenders know nothing about these cases, how can Jerry Brown know anything?

In short, Jerry Brown’s claim was overstated.  There may be some innocent people on death row.  We do not know.  But neither does Jerry Brown.

—David M. Greenwald reporting