Dan Morain

Dan Morain: Attorney helps sound the death knell for capital punishment

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Michael Laurence isn’t interested in taking credit for the demise of the death penalty in California.

Plenty of other attorneys are helping to bring this state’s version of capital punishment to its knees. But when, not if, the death penalty is fully put out of its misery, Laurence will be among its chief executioners.

During the past 25 years, Laurence has litigated the constitutionality of lethal injection and of the gas chamber, and the state’s failure to appoint competent lawyers for death row inmates.

He is the lead defense lawyer in the latest case to upend capital punishment. A federal judge concluded earlier this month that California’s version of the death penalty is cruel and usual punishment because no one is being put to death.

“To have a judge say the death penalty is unconstitutional, it is kind of stunning,” Laurence said by phone the other day.

Laurence keeps a memento of his worst defeat framed on his office wall, as if he needs a reminder of a case he can never forget.

His client, Robert Alton Harris, had murdered two teenage boys in San Diego County in 1978 and, in a detail mentioned in nearly all subsequent reports of the crime, mine included, finished their Jack-in-the-Box lunches.

Harris was about to become the first person executed in California in 25 years, when, shortly after midnight on April 21, 1992, a telephone rang twice.

Judge Harry Pregerson had called San Quentin Warden Daniel Vasquez and ordered him to halt Harris’ execution. Vasquez had been seconds away from dropping the cyanide pellets into acid-filled vats beneath Harris’ chair.

I was among the witnesses who watched the macabre scene. Harris, strapped and hardly able to move, seemed to urge Vaquez to get on with the task for which we had gathered. Attorney General Dan Lungren stormed out of the witness area to personally oversee the appeal.

Hours later, as the dawn broke, the U.S Supreme Court issued the order that hangs on Laurence’s wall: “No further stays of Robert Alton Harris’ execution shall be entered by the federal courts except upon order of this court.”

“It was a defining moment to lose a case that results in an execution,” Laurence said.

Laurence was 32 and a few years out of UC Davis law school when Harris was executed; he’s 54 now. A few days after the execution, he went to a memorial for Harris in San Francisco, and I stopped him to ask a few questions. He planned no time off.

“I want to make sure no one else has to die by lethal gas,” he told me then.

California switched to death by lethal injection as a result of a bill that year by Assemblyman Tom McClintock, now a congressman from Elk Grove. McClintock said lethal injection would be “the only form of execution which from our own life’s experience, we can conclude is entirely devoid of discomfort.”

Hardly. In 2006, a federal judge halted the execution of a Stockton man who murdered a 17-year-old girl, citing doubts about the execution team’s competence to administer lethal drugs. Eight years later, California authorities have failed to produce a protocol that might meet the courts’ standards.

Laurence knows better than most the horrible acts that condemned inmates commit. He also sees sides of them that few others do, after they’re off drugs and less psychotic than they were on the streets.

He has become expert in how brains function or don’t, about schizophrenia, and the impact of fetal alcohol syndrome, which he believes led to Harris’ inability to control his actions. And he is an absolutist.

“People don’t trust the governor to figure out their taxes, and yet they trust government to decide who lives and dies,” Laurence said.

Laurence’s clients include Earnest Dewayne Jones, who is on death row for raping and murdering the mother of his girlfriend in Los Angeles in 1992, after having served time for raping the mother of an earlier girlfriend.

U.S. District Judge Cormac J. Carney, presiding over Jones case, is no liberal. He has ruled against two other death row inmates. President George W. Bush appointed him to the federal bench.

In April, Carney issued an order that opened by saying: “This court is extremely troubled by the long delays in execution of sentence in this and other California death penalty cases.” He told the lawyers to submit briefs on the issue.

Laurence answered: Jones was 28 in 1992 when he was charged with capital murder. He turned 50 one month ago today. Jones has spent 19 years on death row so far, and will wait more years for resolution.

“At the end of this lengthy process, this court likely will grant Mr. Jones a new trial, as the federal courts have done in the majority of California capital habeas corpus proceedings,” Laurence said.

On July 16, Carney sided with Laurence, pointing out that more than 900 killers have been sentenced to death in California since 1978, and only 13 have been executed.

“As for the random few for whom execution does become a reality, they will have languished for so long on death row that their execution will serve no retributive or deterrent purpose and will be arbitrary,” Carney wrote.

Attorney General Kamala Harris has not decided whether to appeal, as if it would make any difference.

The California Supreme Court has been affirming death sentences routinely since voters ousted Gov. Jerry Brown’s first chief justice, Rose Elizabeth Bird, and two other Brown appointees in 1986.

But that’s only on direct appeals. Then there are the habeas corpus proceedings, which is where Laurence, the head of the Habeas Corpus Resource Center, comes in.

He and his team of 30-plus lawyers, operating on a state budget of $12.9 million, are responsible for re-investigating the cases of death row inmates and litigating their collateral appeals.

The Legislature created the office in 1997, as a result of a suit he brought to force the state to appoint habeas attorneys. His shop can do only so much. At last count, 352 death row inmates were without habeas lawyers.

In 2008, something called the Commission on the Fair Administration of Justice estimated California would need to spend an additional $232.7 million annually to fund the death penalty system.

Six years later, the report sits in the ether, waiting for a legislator to download, read it, and act. No one will. No matter their view, they know the death penalty cannot be fixed, nor should it be. There always will be another appeal.