It was advertised as the “Great Death Penalty Debate,” and it lived up to its billing. It was lively and at times contentious, but most of all it was highly informative.
The debate held on March 26 and sponsored by the Criminal Law Association and XONR8, was based on a proposed California initiative that would streamline the death penalty process, by limiting the appeals process to five years, where often, the process can take 30 years or more.
“Let’s start with a number,” said moderator Greg Moran, a reporter with U-T San Diego. “There are 747 inmates on death row in California. Forty of them are from San Diego County and one has been there since 1978. We have a damaged, if not dysfunctional, if not broken death penalty system.”
“The death penalty is broken because innocent people get sentenced to death, said California Western Professor Justin P. Brooks, director of the California Innocence Project. “It’s arbitrary and capricious. You won’t fix it just by getting rid of delays. The entire initiative is ludicrous, and I think the proposed law is probably unconstitutional.”
“The voters voted for the death penalty,” said Deputy District Attorney Gary Schons, who handled many death penalty appeals during his prior career with the California Attorney General’s office. “How do we deal with that reality?”
There is a saying that “justice delayed is justice denied,” and the length of the sometimes decades long appeals process was an important issue in the debate.
“No one can countenance delay,” said Schons. “To litigate for 30 years is an outrage to justice.”
“The big delay is that death row inmates do not get attorneys fast enough,” said Deputy District Attorney Brenda Daly. “The initiative would make that process way quicker. It would be one year instead or eight or nine before a convicted death row inmate gets to speak to an attorney.”
“If we had a five year cap on appeals, that would have been 16-and a-half years too late for Nick Yarris,” said defense attorney Daniel F. Greene ’03.
Yarris was one of the panelists. He was on death row for 21 years in Pennsylvania before he was exonerated.
“It was only because I asked to be executed that the system worked,” Yarris said. “We’re stuck with the death penalty. It’s broken beyond repair, but we don’t want to give it up.”
“In the John Gardner case, the death penalty was the reason we found Amber Dubois’ body,” said deputy attorney general and California Western adjunct professor Bradley A. Weinreb, referring to a man who pleaded guilty to raping and murdering two San Diego County teenagers, Chelsea King and Dubois to escape capital punishment. “It was the threat that the death penalty might be imposed that made him lead authorities to Amber’s body.”
“What is the function of the death penalty?,” asked Moran.
“The death penalty is reserved for the worst of the worst – it can only be sought in the most heinous circumstances,” said Daly. “The Death penalty is involved in only three percent of the homicides in California. What it is really for is for justice.”
In answer, Brooks said, “The death penalty is not reserved for the worst of the worst. Studies across the county have shown that the top two reasons for the death penalty are one, the quality of the defense representation and two, the race of the victim in the case.”
“The death sentence winds up being arbitrary, depending on the judge, the jury and the lawyers,” said defense lawyer Robert Kalunian, who has tried nearly 20 death penalty cases.
Another other important issue debated was the quality of representation that defendants in death penalty cases receive and how many defense and appellate lawyers can’t afford to take on these cases because of low fees and the major time commitment such cases demand.
“The state wants attorneys to do it for less money,” said panelist Gary Gibson ’91, a public defender and California Western adjunct professor. “We have to decide—do we want a death penalty or not?”
“It benefits all of society if the most competent attorney handles the case,” said Weinreb.
Greene agreed. “We need quality representation before we get to trial and at trial, before we get to the appeals process.”
“I think it was very informative and very emotional, said 2L Nadine J. Valdecini, one of the debate’s organizers. “I was on the edge of my seat. I thought it was a very well-rounded discussion of the proposed initiative.”
“I enjoyed it and I was surprised, said 2L Jordan B. Du Bois. “I thought defense attorneys would go one way and prosecutors to go the other. There was a plethora of points of view that I wasn’t expecting.”
“It was very exciting actually seeing Professor Gibson debate because he’s very entertaining in class,” said 2L Rosa I. Acevedo. “Seeing him here outside of his element was absolutely wonderful.”