OUTLIER COUNTIES: Kern County, California Leads Nation in Police Killings, Ranks Among Highest in Death Sentences

Kern County, California—one of five Southern California counties that have been described as the "new Death Belt"—sent six people to death row between 2006 and 2015, more than 99.4% of U.S. counties. Its death sentence-to-homicide rate during the 10-year-period from 2006 to 2015 also was 2.3 times higher than in the rest of the state. In this same time frame, Kern had the highest rate of civilians killed by police of any county in the country:  between 2005 and 2015, police killed 79 people in Kern County, a rate of 0.9 killings per year per 100,000 residents. In The Washington Post, Radley Balko explained the policy link between high rates of police killings and high use of the death penalty, noting that District Attorneys set the tone for law enforcement in their counties and are usually in charge of investigating excessive use of force by police. "It isn’t difficult to see how when a DA takes a 'win at all costs' approach to fighting crime, that philosophy would permeate an entire county’s law enforcement apparatus, from the beat cop to the DA herself or himself," Balko said. In Kern County, police killings and high numbers of death sentences are part of a larger narrative of official misconduct. Ed Jagels, the longtime District Attorney in Kern County, led the campaign to oust Chief Justice Rose Bird and two other Justices from the California Supreme Court over their votes in death penalty cases. He boasted about Kern leading the state of California in incarceration rate. A largely-fabricated sex abuse scandal led to 26 exonerations. Prosecutors have been found to have altered interrogation transcripts and hidden unfavorable blood test results. According to Harvard University's Fair Punishment Project, current District Attorney Lisa Green "promised to continue to be an example of aggressive prosecution" when she took over in 2010. Saying that for some capital defendants "Justice ... is nothing less than death," she advocated for a state referendum limiting death penalty appeals. Ineffective defense lawyering has also contributed to Kern's high death sentencing rate. In one particularly egregious case, a defense attorney emailed his co-counsel before the sentencing phase of a capital trial, saying, “I don’t know what a penalty trial really looks like—it’s starting to concern me.” Though half of Kern's defendants sentenced to death from 2010-2015 had intellectual disability, brain damage, or mental illness, defense lawyers presented an average of less than 3 days' worth of evidence to spare the defendant's life. In numerous cases, lawyers presented a day or less of mitigating evidence.

OUTLIER COUNTIES: Riverside County, "The Buckle of a New Death Belt"

Riverside County, California imposed more death sentences than any other county in the United States in 2015, accounting for more than half of the state's new death sentences and 16% of new death sentences imposed nationwide. Among other states, only the 9 death sentences imposed in Florida outstripped Riverside's total of 8. The 29 death sentences from 2010-2015 made it the nation's second most profilic death sentencing county during that period, behind only the country's most populous death penalty county, Los Angeles, which has five times as many homicides. While California imposed more death sentences than any other state during that period, Riverside stood out even among California counties, imposing death sentences at a rate that was 9 times greater per homicide than the rest of the state. A 2015 piece by Professor Robert J. Smith of the University of North Carolina at Chapel Hill called Riverside County, "the buckle of a new Death Belt," because it, along with four other southern California counties, had replaced the Deep South in overproducing death sentences. Those five counties, which also include Kern, Orange, Los Angeles, and San Bernadino, have received national attention for misconduct by prosecutors and other public officials. In 2011, a federal magistrate judge characterized the conduct of the Riverside County District Attorney's office as, “turn[ing] a blind eye to fundamental principles of justice,” in a murder case. As with many of the counties that produce disproportionately large numbers of death sentences, the county faces other serious criminal justice problems. The office has been the subject of an investigation into allegedly illegal wiretapping practices, after former DA Paul Zellerbach oversaw what The Desert Sun newspaper described as "an astronomical rise in wiretaps" that was "so vast it once accounted for nearly a fifth of all U.S. wiretaps," including triple the number of wiretaps issued by any other state or federal jurisdiction in 2014. Riverside police ranked 9th in the nation in killings of civilians. The death sentences imposed in the county also exhibit significant racial disparities. 76% of those sentenced to death in Riverside between 2010 and 2015 were defendants of color. Defendants in Riverside County often receive inadequate defense because of a pay structure for court-appointed attorneys that financially penalizes plea bargains and robust investigation of mitigating evidence. In two-thirds of Riverside County cases that were reviewed on direct appeal between 2006 and 2015, defense counsel presented less than two days of mitigation. Among that same group of cases, 55% involved a defendant who was under 21 years old at the time of the offense or had an intellectual impairment, brain damage, or severe mental illness. 7 of the 8 defendants sent to death row in 2015 were represented by appointed private counsel. Only one was represented by the public defender's office. (Click image to enlarge.)

Orange County, California Crime Lab Accused of Doctoring Murder Testimony to Help Prosecutors

The Orange County, California Crime Lab has been accused of doctoring its testimony about DNA evidence to favor the prosecution, after a senior forensic analyst offered conflicting conclusions that bolstered the prosecution in two separate murder cases. A motion filed on September 23 by the Organge County Public Defender's office says prosecutor Kevin Haskins (now a judge) presented testimony from Senior Forensic Scientist Mary Hong in the 2008 capital murder prosecution of Lynn Dean Johnson claiming that the recovery of low quantities of semen from the victim's body meant that the DNA had been deposited "zero to 24 hours" before it was collected by police. The motion says Hong subsequently testified in the murder trial of Wendell Patrick Lemond in 2009, in response to questioning by deputy district attorney Howard Gundy, that low quantities of semen meant that intercourse had occurred at least 24 hours before collection. The testimony in Johnson's case was critical in persuading the jury that the victim—who had multiple partners in the weeks before her death—had sexual contact with Johnson near the time of the murder. In Lemond's case, however, the changed testimony persuaded jurors that an alternate suspect who had been identified as the source of the semen could not have had sex with the victim around the time of the murder. The murders occurred in 1985, but the trials took place two decades later after Hong reopened forensic probes into the cases. Hong's testimony in Johnson contradicted the conclusions reached by criminalist Daniel Gammie when he prepared the original reports in ther cases in 1985. At that time, Gammie indicated in both cases that the sperm had been deposited at least 24 hours before collection. At Johnson's trial, Gammie changed his stance to fit the prosecution's theory and testified that now he would "be very cautious making a statement" like the one in his 1985 report. Having recanted his 1985 conclusions in Johnson's case, prosecutors could not risk presenting him as a witness in Lemond's case. Instead, Gundy presented Hong, but did not tell the jury about her contradictory testimony in the Johnson trial. Sanders' court filing argued that Gammie and Hong's testimony had been tailored to “fit perfectly for the prosecution" in Johnson’s case and that Hong's testimony in Lemond's case was "wholly irreconcilable with the testimony in Johnson. ...She clearly had studied Gammie’s report and analysis and knew that Gammie’s testimony in Johnson and her own—in the hands of defense counsel—would have eviscerated her credibility in Lemond and all of the other cases she has touched throughout the course of her career." The revelation comes amid a widespread prosecutorial misconduct scandal in Orange County, in which a special committee recently cited a "failure of leadership" and "win-at-all-costs mentality" as factors that led to the misuse of jailhouse informants, withholding of evidence, and other misconduct. 

Field Poll: California Death Penalty Repeal Leads Among Likely Voters as Majority Say They Prefer Life Without Parole

A poll of likely California voters conducted jointly by The Field Poll and the Institute of Governmental Studies at the University of California, Berkeley has found continuing erosion of support for the death penalty in the state and near-majority support for Proposition 62, a ballot question to replace the state's death penalty with a system of life imprisonment without parole, plus restitution. The poll found significant voter confusion about a rival ballot measure, Proposition 66, that claims to "reform" the state's death penalty by purportedly speeding up capital appeals. A plurality of voters said they are undecided about that ballot question. Although support for both propositions led opposition, neither commanded a majority. 48% of likely voters say they plan to vote yes on Prop. 62, with 37% planning to vote no and 15% undecided. 35% say they plan on voting yes on Prop. 66, with 23% currently opposing, but 42% undecided. (Click image to enlarge.) The poll presented likely voters with the summaries of each initiative that will appear on the November ballot. It found that support for repeal was strongest among Democrats (63%), liberals (71%), voters under 30 (55%), and voters with no religious preference (59%). Latinos were nearly evenly divided and constituted the only racial or ethnic group in which more voters said they opposed Prop. 62 (43%) than supported it (42%). Nearly one-third of African-American voters (32%) reported that they were undecided. A plurality of most demographic groups was undecided about Prop. 66, but support for the measure was highest among Republicans (42%), conservatives (45%), and Protestants (41%). The poll also asked voters whether they prefer the death penalty or life without parole for those convicted of first degree murder. A 10-percentage-point majority (55%-45%) said they prefer life without parole, continuing a trend of increased support for alternatives to the death penalty since the Field Poll first asked the question in 2009. At that time, a plurality (44%) prefered the death penalty. Support for Prop. 62 is polling 6 percentage points higher than it did for Proposition 34, the ballot initiative to repeal the death penalty that narrowly failed in 2012, at the same time in the election cycle. A Field Poll of likely voters in September 2012 showed 42% in favor of the repeal initiative, 45% opposed, and 13% undecided. Prop. 34 ultimately garnered 48% of the vote. The poll of 942 likely voters was conducted online by YouGov September 7-13, 2016 and released on September 22.

EDITORIALS: California Newspapers Overwhelmingly Support Ballot Initiative to Abolish Death Penalty

Newspaper editorial boards in California are overwhelmingly supporting a November ballot initiative to abolish the state's death penalty and replace it with life without parole plus restitution, and are uniformly rejecting an opposing initiative that purports to speed up the appeals process. At least eight California newspapers have published editorials supporting Proposition 62 and opposing Proposition 66, and Ballotpedia reports that it is aware of no editorial boards that have supported Proposition 66. A Los Angeles Times editorial characterizes the death penalty as "both immoral and inhumane," adding, "[e]ven those who do not object to capital punishment on principle ought to support abolition because of the system’s inefficiency, exorbitant costs and long delays. Proponents of Proposition 66 say they can speed up the process and make the death penalty work, but there are serious doubts that their proposal would achieve the kind of fast-tracking they promise, and critics argue persuasively that the system might become even more expensive." The San Francisco Chronicle writes that "all sides agree [California's death penalty] has produced enormous legal bills, no semblance of deterrence to would-be murderers and too little justice to victims’ loved ones over the past four decades." It says Prop. 62 "offers a straightforward and certain solution," while criticizing Prop. 66 as "a highly complex, probably very expensive and constitutionally questionable scheme for streamlining the appeals process." Many of the editorials are particularly critical of Prop. 66's proposal to conscript appellate lawyers to represent death row inmates. The (Santa Rosa) Press Democrat's critique is representative: "Rather than funding an expansion of the state public defender’s office, which handles almost all death penalty appeals, Proposition 66 would require all attorneys who practice in California appellate courts, regardless of specialty and training, to accept judicial appointments to capital cases. Claims of inattentive and incompetent counsel already are common in death penalty appeals, and conscripting lawyers would only invite more such challenges." The Bakersfield Californian, which offered no opinion on Prop. 34, California's prior ballot initiative to abolish the death penalty, has also weighed in on the death penalty this year, calling for an end to the state's "costly, toothless death penalty." Other newspapers urging voters to vote yes on Prop. 62 and no on Prop. 66 included Monterey Herald, the Bay Area News Group (Mercury News and East Bay Times), and the Santa Clarita Valley Signal. [UPDATE: Additional editorial boards have come out in favor of Proposition 62 and against Proposition 66 (see below). To date, we are unaware of any editorial support for Proposition 66.]

Report: Proposal Billed as Speeding Up California Executions Would Actually Be Costly, Time-Consuming

An initiative on the California ballot this November billed by its supporters as a reform alternative to abolishing the state's death penalty will cost the state tens of millions of dollars to implement, according to an analysis by the Alarcón Advocacy Center at Loyola Law School, and "will not speed up executions." The report, California Votes 2016: An Analysis of the Competing Death Penalty Ballot Initiatives, predicts that Proposition 66 (The Death Penalty Reform and Savings Act of 2016), would "cost millions more than the [state's] already expensive death penalty system" and "will only make matters worse by creating more delays and further clogging the state’s over-burdened court system," adding "layers of appeals to a system already facing an insurmountable backlog of decades of death penalty appeals waiting to be decided." The report states that provisions in Prop 66 to exempt lethal injection protocols from public oversight "will certainly be subject to litigation ... on constitutional and other grounds, should Prop 66 pass, adding yet more delays to death penalty cases." The report criticizes Prop 66 as "fail[ing] to make the constitutional changes required to deliver the results it promises" and concludes that "its proposals are so convoluted that they are likely to create many new problems that will not only complicate the administration of the death penalty system, but will also impact and harm the rest of California’s legal system." The report contrasts Prop 66 with an opposing ballot initiative, Proposition 62 (The Justice That Works Act of 2016), which would abolish the death penalty in favor of life without parole. According to the state Legislative Analyst, Prop 66 will cost "tens of millions of dollars per year," while Prop 62 would save California taxpayers $150 million per year. The authors of the Loyola report, Paula Mitchell, executive director of the Alarcón Advocacy Center, and Nancy Haydt, a board member of California Attorneys for Criminal Justice, summarize the issues before the voters as follows: "The proponents of both Prop 62 and Prop 66 agree that California’s death penalty system is dysfunctional, exorbitantly expensive, and failing to achieve its purpose. Prop 62 responds to this failed system by replacing it entirely, adapting the existing regime of life imprisonment without parole to cover all persons who are convicted of murder with special circumstances. Prop 66 responds to this failure with a sweeping array of convoluted proposed 'fixes.' Our detailed analysis reveals that most of these changes will actually make the death penalty system worse, and will result in its problems negatively impacting the rest of the legal system in California."

EDITORIAL: San Jose Mercury News Endorses Death Penalty Repeal, Says Competing Measure Would Magnify Inequity

Weighing in on California's competing death penalty ballot initiatives, the San Jose Mercury News editorial board urged voters to support repeal of capital punishment and reject a proposal to speed up executions. The editorial called California's death penalty system, "a failure on every level," noting that the state has spent $4 billion to carry out just 13 executions and the $150 million annual savings the independent Legislative Analysts Office says death penalty abolition would achieve could be better spent "on education, on rehabilitating young offenders or on catching more murderers, rapists and other violent criminals." The editorial also addresses the misperception that the death penalty deters crime: "District attorneys throughout the state argue that the death penalty is a tool to condemn society's most vicious criminals. But this claim flies in the face of actual evidence: For every year between 2008-2013, the average homicide rate of states without the death penalty was significantly lower than those with capital punishment." After describing the racially- and geographically-biased application of the death penalty in California, the editorial argues that Proposition 66, which proposes to speed up executions, "would actually magnify the inequity and sometimes outright injustice in the death penalty's application" by reducing the opportunities to catch mistakes. "In the United States, for every 10 prisoners who have been executed since the death penalty was reinstated in 1976, one person on death row has been set free." Speeding up executions, the editorial says, "is the opposite of what nations concerned with actual justice would do."

NEW VOICES: Former FBI Agent Now Opposes Death Penalty, Seeks Exoneration of California Death Row Prisoner Kevin Cooper

During his 45 years in law enforcement, including 24 years with the Federal Bureau of Investigation, homicide investigator Tom Parker (pictured) changed his view on the death penalty. "There were times during my career when I would gladly have pushed the button on a murderer,” he said. “Today, my position would be, life without parole." Parker says that seeing corrupt homicide investigations convinced him that innocent people could be executed. As result, he now opposes capital punishment and is supporting California's Justice That Works Act, a ballot measure that would repeal the death penalty. Parker says the worst case of police misconduct he has seen in a capital case is that of California death row prisoner Kevin Cooper. Parker has re-investigated the case pro bono for five years in an effort to free Cooper. “I’m convinced he was framed. We arrest and convict innocent people almost every day in this country. As long as we have a death penalty in America, we will continue to execute innocent people.” Cooper was sentenced to death for four 1983 murders, and has completed his appeals, meaning that he could be executed if California resumes lethal injections. Parker says Cooper's conviction was a result of "police tunnel vision" - making the evidence fit the suspect, rather than seeking a suspect who fit the evidence. Working as a consultant with Cooper's attorneys, Parker has found witnesses who say they saw three white men, two of whom wore blood-spattered clothing, acting strangely at a bar near the crime scene on the night of the murders. The initial statement from the one survivor of the crime pointed to three white men as the perpetrators, but Cooper is black. Cooper recently received support from the American Bar Association in his efforts to receive clemency from Governor Jerry Brown.