November 24
TEXAS----impending execution
'Texas 7' escapee fights death sentence as Dec. 4 execution nears
Joseph Garcia met George Rivas back in the summer of 1999, 8 months before they
started plotting their escape.
They were doing time together on the Connally Unit, counting out their days in
the heat of a Texas prison.
Garcia was locked up on a murder charge, a crime he's long maintained was
self-defense. Rivas, on the other hand, was a convicted kidnapper, violent and
full of charisma.
They both had decades of time in front of them. But Rivas had better plans.
Around lunchtime on Dec. 13, 2000, they broke out of the maximum security
prison south of San Antonio, bringing along 5 confederates as they made
good on an intricate plot culled straight from the pages of a novel.
They took hostages, burst into the prison armory, stole weapons and stormed out
in a prison truck, making for the biggest escape in Texas prison history. After
pulling off 2 robberies in the Houston area, they headed to the Dallas suburbs,
hoping to get as far as they could from the bloodhounds and helicopters hunting
them down.
There, on Christmas Eve, the men held up a sporting goods store and made off
with bags of cash and dozens of guns. On the way out, they ran into a cop.
In a chaotic scene, five of the men started firing, some at each other and some
at the lawman. When it was over, Officer Aubrey Hawkins lay dead in the
Oshman's parking lot, shot 11 times and dragged 10 feet by an SUV as the
panicked prisoners fled.
After a 6-figure reward and a spot on "America's Most Wanted," the wanted men
were finally captured in Colorado more than a month later, living in a trailer
park and posing as Christian pilgrims. 1 killed himself rather than be
captured, and the other 6 were sent to death row.
"It wasn't supposed to happen," Garcia told the Houston Chronicle in a recent
death row interview. "I wish I could take everything back."
3 have been executed and now a 4th - Garcia - is scheduled to die Dec. 4. It's
a case that's galvanized outcry from activists, since it's not clear that he
ever shot anyone. Though he's consistently admitted to his role in the
break-out and robberies, he's long maintained that he never fired his gun and
never intended to kill the officer. Even so, he was sentenced to death under
the controversial law of parties, a Texas statute that holds everyone involved
in a crime responsible for its outcome.
It's the thing that put him on death row, but now it's also a key part of the
desperate inmate's last-ditch efforts at appeal and pleas for clemency.
Whatever the law, it all feels too long for the slain officer's friends and
family.
"We're coming up on 18 years since the incident," said Sgt. Karl Bailey, a
Seagoville policeman and longtime family friend. "It's a long time not to get
closure - and it wears on you."
****
The law of parties has long been baked into the Texas criminal code. It's a
statute that's broader - and used more frequently in death penalty cases - than
in many other states, according to Robert Dunham of the Death Penalty
Information Center.
The requirements are simple: The state must show only that an accomplice to one
felony may have "anticipated" another felony could occur. So, if a 3-man
robbery crew hits a convenience store and 2 person kills the clerk, all 3 of
them are guilty of capital murder - even if the other two never fired a shot.
And, if there's a getaway driver waiting outside, he can be responsible as
well, even if he never got out of the car.
In some cases, the actual shooter might manage to net a life sentence and be
eligible for parole, while non-shooter accomplices face the death chamber.
In some states it's known as vicarious liability. Nationally, it's not clear
how many people are on death rows across the country under such laws, but the
Death Penalty Information Center counts only 10 clear cases of non-shooter
accomplices who've been executed, including 5 from Texas.
"There's this borderline area between common and uncommon and I don't think
it's either of the 2," Dunham said. "But it's applied much more frequently in
Texas than in similar circumstances in other states."
******
Rivas and Garcia became friends because of a prison gang war. It was a feud
between the Mexican Mafia and La Raza Unida that sparked a unit-wide lockdown,
Garcia told the Chronicle, and the men met up in the dayroom where they bonded
over a "poor man's spread" of prisoner-made food.
The lockdown ended and they went their separate ways, but a few months later,
Garcia spotted Rivas standing by his cubicle talking to another man, Larry
Harper.
Garcia was already frustrated, only 4 years in and not sure he could really do
all the time stretched out in front of him. He still felt like he wasn't
supposed to be there. And now, he wanted to steal back the life he thought the
state had stolen from him.
"Something told me it was time," he told the Chronicle. "So I walked up and
said, 'Whatever you're talking about, count me in.'" Then, he turned and walked
away.
The next morning, Rivas woke him up, wanting to know if he was serious. He was.
So they hatched a plan, inspired by a book Rivas had read. It was slow going,
but one thing they knew from the start: they didn't want to go over or under
the fence. That would mean getting shot at. Instead, they wanted to drive out
through the gate, like free men.
First, they had to pick a crew. Harper and a man named Randy Halprin were
already on board.
Then, according to Garcia, they learned Donald Newbury was planning an escape
of his own, so they invited him along. And they found Michael Rodriguez, whose
father was willing to supply a getaway car. Finally, there was Patrick Murphy,
a wood shop worker who could help build a false bed for the prison truck they
planned to steal.
"For each and every one of us, we all brought something to the table," Garcia
wrote the Chronicle in a letter. "Some more than others."
It would have to start, they decided, with figuring out a way to take control
of the maintenance shop. Rivas already worked there as a clerk. He was a smooth
talker, so he schmoozed the guards into getting his friends assigned there,
too. It wasn't a hard sell; supplies went missing all the time, and his
friends, he promised, would make sure that didn't happen.
They did, but putting a stop to the booming thieving business was not a popular
move among inmates.
"I was surprised we didn't get jumped," Garcia said.
At the same time, they started false rumors among the staff, got intel on
officer training, stocked up supplies and memorized security routines.
The night before, Garcia said, they shared a meal and prayed. On Dec. 13, they
stayed behind at lunch to wax the floor, then overpowered staff, officers and
inmates as they returned to maintenance, according to testimony at the men's
trials.
2 of the gang dressed up as prison workers to sneak into the armory and take
control of the guard tower.
Others took the keys to a maintenance truck and loaded it with provisions and
guns before they all fled, with some of the escape artists stowed away under
the false bed in the pick-up.
They were free, but they didn't have a long-term plan. Garcia had envisioned a
quiet life; maybe they'd fade into the woodwork and get jobs. He knew, on some
level, that was never possible.
Surely, the long arm of the law would come grasping at 7 high-profile escapees.
******
The law of parties has been a perennial source of controversy, sparking
editorials, rallies and bills to end it every legislative session.
One of the regular bill-filers is state Rep. Harold Dutton, D-Houston. Since
2003, he said, he's consistently proposed legislation to end vicarious
liability. "We shouldn't use the law of parties to convict anybody of capital
murder," he said. "I think we ought to reserve that for the person who actually
did the murder."
Some states have already stepped back from the law of parties. Earlier this
year California narrowed its felony murder law, revising the statute to require
"major" participation in the crime or at least the intent to kill. So, simply
intending to rob a store wouldn’t be enough to net a murder conviction anymore,
even if the store clerk gets killed in the process.
But to Toby Shook, the former Dallas County prosecutor who handled all 6 of the
trials, the Texas 7 case is a perfect example of why the statue is necessary.
"This case clearly demonstrates why they need the law of parties," he said.
"This is a group of very violent men who broke out of prison and planned out
elaborate robberies. They acted as a group and they murdered a police officer
in a group and they acted as a team."
****
Once they got beyond the razor wire, the fleeing prisoners soon realized their
supplies weren't enough.
"It's not like in the books," Garcia said. "You don't know people underground
selling IDs and birth certificates."
After pulling off 2 robberies - 1 at a Radio Shack and 1 at a Western Auto -
the crew decided to head north. They needed to pick up some cold-weather gear,
and maybe some more guns, so they scoped out a sporting goods store in the
Dallas suburb of Irving.
But first, they got a copy of the newspaper and cut out the picture of a
Scholastic Award winner, then glued his image to a WANTED poster.
Dressed as ADT security guards and toting their cobbled-together poster as a
prop, Rivas and Harper went in just before closing time to ask if anyone had
seen the supposed smash-and-grab suspect or if he'd been caught on security
cameras.
It was all a plot to get into the surveillance room and figure out how much of
the store was on camera. Once they did that, Rivas calmly announced it was a
robbery.
The escapees scattered in different directions, each tending to their assigned
tasks.
Garcia was supposed to go to the clothes and shoes, but there were more
customers - more hostages - than they'd expected. So instead, he went to help
Newbury tie people up in the breakroom.
They’d only halfway finished when Garcia heard Rivas across the radio. It was
time to go.
As Garcia remembers it, he was still inside the store when he heard the first
shots.
Halprin recalled it differently, testifying that they were all outside when the
patrol car pulled up and blocked them in by the loading dock. Rivas thought
they were all already in the getaway car.
In a stand-off with the young officer, 5 revolvers fired shots. Rivas admitted
in court that he shot Hawkins repeatedly. And everyone agrees Rodriguez fired a
shot and Murphy was out front as the lookout guy. The rest was chaos and
crossfire.
Afterward, they fled and ended up back at an EconoLodge where they'd been
staying, trying to parse what had happened and who shot whom.
"I think I killed him," Rivas said, according to trial records. Everyone fell
silent.
The next day they left for Colorado.
******
Since he was sent to death row, Garcia has renewed his relationship with God,
written a book and waged almost two decades of appeals.
He's raised a slew of claims about bad lawyering during trial and earlier in
the appeals process, but the courts have denied them all.
Last month, he put in a long-shot plea for clemency to the Board of Pardons and
Paroles, laying out his violent childhood with a drug-addicted mother who died
of AIDS, his stint in the Coast Guard and evidence that he was not one of the
shooters.
At the same time, in a Bexar County petition now in front of the Texas Court of
Criminal Appeals, Garcia's attorneys - Mridula Raman and a team of public
defenders - argue that the initial stabbing that landed Garcia in prison was
actually self-defense, and his lawyer at the time just failed to show it. If
true, that could pose problems for the capital case where prosecutors pointed
to the earlier murder as evidence of future dangerousness - a requirement for a
death sentence.
"There are significant legal issues before the courts that have not been
presented until now because of procedural technicalities and bad lawyering,"
Raman said. "It is important for a court to step in now and give Joseph's case
the consideration it deserves."
And, in a separate appeal of his death sentence in Dallas County, lawyers
raised concerns about the use of the Bexar County conviction, ineffective
lawyers, an allegedly racist trial judge, and the constitutionality of
executing someone the state never proved was a shooter, ever intended to kill
anyone, or was even outside at the time of the slaying.
"They were all tried under the law of parties," Shook said, "so it really
doesn't matter if he was out there or not but I firmly believe he was."
Garcia maintains otherwise.
"I am on death row because of the actions and intent of others and because I am
1 of the Texas 7, case closed," he wrote in a letter. "Is it right that I
should be murdered for something that I did not do?"
If his appeals fail, he'll be the 12th Texas prisoner executed this year. 1
more is scheduled for the week after.
*****************************
Texas death row inmates await executions for decades
The triggerman in the murder-for-hire plot to kill a pediatric dentist in
Uptown has joined 25 killers from Dallas County on death row, including Darlier
Routier and members of the Texas 7.
Kristopher Love, convicted last month in the September 2015 murder of Kendra
Hatcher, is the 1st person who has been sentenced to death in Dallas County in
nearly 5 years.
He arrived in Hunstville this month, joining 225 others who have been condemned
to die in Texas.
But it could be years, if not decades, before Love, 34, dies by lethal
injection. Another murderer who was convicted in Dallas County, Kenneth Thomas,
has been on death row for more than 30 years for killing a prominent local
civil rights attorney and his wife.
In the last 5 years, the people executed in Texas have lived on death row for
an average of nearly 15 years. Texans were executed at a slightly faster rate
than people in other states, who waited an average of 17 years before they were
put to death.
The state is on track again to lead the county in executions this year. So far,
11 Texans, including 2 Dallasites, have died by lethal injection. 2 others from
Dallas County are scheduled for execution in December.
Despite the state's pace of executions, 57 Texans have remained on death row
for more than 20 years.
1 man, Jerry Martin, waited only 4 years before he was executed in 2013. Martin
requested that no more appeals be filed on his behalf after he was convicted
for a prison escape that resulted in a correctional officer's death.
Raymond G. Riles of Harris County, the longest-serving death row inmate in the
state, has been been awaiting execution since 1976. 15 others have been waiting
more than 30 years.
Dallas County's condemned:
Kenneth Thomas, 57, has been on death row since 1987 for the murders of Fred
and Mildred Finch. Thomas has been awaiting execution longer than any Dallasite
now on death row. He was granted a new punishment trial after a ruling by the
Texas Court of Criminal Appeals concerning his mental capacity. Thomas was
retried in 2014 and again condemned to die. He broke into the Finches' home
through a bedroom window, stole several items and repeatedly stabbed the
couple.
Darlie Routier, 48, is 1 of 6 women on death row in Texas. She is the only
woman awaiting execution from Dallas County. The last woman executed in Texas
was Lisa Coleman in 2014. Routier has maintained her innocence for the 21 years
she has been on death row. She claims an intruder killed her sons, Damon and
Devon. She has appealed her conviction several times, and additional DNA tests
have been ordered in the case. No date has been set for her execution.
Joseph Garcia, 47; Randy Halprin, 41; and Patrick Murphy, 57, are members of
the Texas Seven, a group of prison escapees who were on the run for weeks. The
men were suspected in several robberies after their December 2000 escape.
Irving police Officer Aubrey Hawkins was responding to a call about a
suspicious person on Christmas Eve when he encountered the escapees. He was
shot 11 times. The 7 fled to Colorado, where 6 were captured about a month
later. Larry James Harper committed suicide before he was captured. Garcia is
scheduled to be executed Dec. 4, after 15 years on death row. Execution dates
have not been set for Halprin or Murphy. 3 others have been executed.
Alvin Braziel Jr., 43, is scheduled to be executed Dec. 11. He has been on
death row since 2001 for the 1993 murder of 27-year-old Douglas White, who was
walking with his newlywed wife on an Eastfield College jogging trail. Braziel
tried to rob the couple, shot White and raped Lori White. Lori White and her
husband prayed during the robbery, she testified during Braziel's trial.
"Where's your God at now?" Braziel asked before shooting Douglas White twice.
The case went unsolved for years until DNA evidence from the rape was linked to
Braziel, who was convicted in 1997 of sexually assaulting a child.
Abel Ochoa, 45, was sentenced to die in 2003 for killing his wife, 2 daughters,
sister-in-law and father-in-law. Ochoa shot 4 of his relatives after smoking
crack in the backyard of his home before going to a closet, reloading and
shooting his 7-year-old daughter 3 times in the back. His defense attorneys
said Ochoa was in a state of delirium when he carried out the killings. Ochoa
has filed appeals to try to win a new sentencing trial to save his life. His
appeals have been denied. His execution date has not been set.
(source: Dallas Morning News)
*****************************
Art for advocacy: Artist's 'Open Letters' project tells stories of death row
inmates
It all started with a news headline. It was back in 2013, and the Lone Star
State had just hit a morbid milestone, executing its 500th inmate in the modern
era of capital punishment.
Mark Menjivar, then living in San Antonio, saw the story forwarded by a friend,
and it shook him. So he started exploring the topic, reading more and figuring
out how to fashion the darkest parts of criminal justice into meaningful art.
Now, 5 years later, he’s done a handful of projects, exhibitions and displays
about capital punishment.
Mark Menjivar, then living in San Antonio, saw the story forwarded by a friend,
and it shook him. So he started exploring the topic, reading more and figuring
out how to fashion the darkest parts of criminal justice into meaningful art.
Now, 5 years later, he's done a handful of projects, exhibitions and displays
about capital punishment.
(source for both: Houston Chronnicle)
PENNSYLVANIA:
DA not ruling out death penalty for man accused of killing newborn child
The District Attorney in Lawrence County is not ruling out the death penalty
for what he calls a "very, very horrific" crime.
Christopher Kennedy is accused of killing his child just hours after it was
born to a 15-year-old girl he had allegedly been sexually assaulting for
several months.
"Lawrence county detective says It was very emotional very emotional for
everybody there you know where all parents and we had to do a lot of things
that were not normally done on this job it was a very very horrific scene in
the criminal complaint at leas that out none of us were really prepared for
what we found," Detective Vince Martwinski said.
Channel 11's Amy Marcinkiewicz broke this traumatic story Wednesday night, and
on Friday she spoke with the District Attorney off camera about the
investigation.
He said his department is looking at all of the aggravating circumstances
before making a final decision about pursuing the death penalty.
(source: WPXI news)
OHIO:
New Legislation Proposed to Reform Death Penalty in Ohio
Since it's early days of statehood, Ohio has carried out the death penalty.
We're 1 of 30 states with a valid death penalty statute.
According to the Ohio department of rehabilitations and correction, 393 people
have been put to death in Ohio. But now, there's a new push to reform the
practice.
Enter House Bill 81. The legislation would spare criminals with severe mental
illness from the capital punishment. "The bill does not say that somebody
shouldn't be punished for committing crime, but that the punishment should be
life in prison, rather than putting them on death row."
Representative Nickie Antonio (D) who co-sponsored the bill says this shouldn't
be a political party issue, it should boil down to what is humane. "Severe
mental illnesses should be a mitigating factor when it comes to sentencing."
The bill is currently in committee, but sponsors hope to pass it through one,
if not both chambers before the end of lame duck. The fate of this bill will
ultimately lie in the hands of the republican majority.
(source: spectrumnews1.com)
CALIFONRIA:
Brown and Newsom know the death penalty is wrong. They should work together to
do something about it
Earlier this month, 2 inmates on San Quentin's death row were found dead - but
their lives did not end the way the state had intended them to.
One was found in his cell and the other in a special unit for inmates with
behavioral problems. If an investigation confirms initial suspicions that they
took their own lives, they will be the 26th and 27th condemned California
prisoners to have beaten the executioner to the punch by committing suicide
since California reinstated capital punishment 40 years ago. Over that same
time span, another 79 condemned inmates have died of natural causes - mostly of
old age and illnesses after decades of incarceration.
The fact is, California has found it nearly impossible to carry out executions
for decades, despite the law calling for it. Of the 971 California death
sentences recorded by the Death Penalty Information Center since 1978, only 13
condemned inmates have been executed here, while Californians have paid more
than $5 billion to maintain the system. That isn’t much bang for the
bureaucratic buck; one report estimated the state would save $170 million each
year by converting all death sentences to life without parole.
The death penalty is impracticable and unusable. But it's also unfair and
immoral.
So the death penalty is impracticable and unusable. But it's also unfair and
immoral. Death sentences disproportionately fall on minorities and the poor,
and whether a murder merits the death penalty generally hinges on a decision by
the local district attorney, which means that what might be considered a
capital offense in one county isn't necessarily so in the neighboring county.
It's hard to get more arbitrary than that.
Further, there is credible evidence that innocent people have been executed,
often as a result of convictions gained through prosecutorial misconduct or
perjury. One study published by the Proceedings of the National Academy of
Sciences conservatively estimates that at least 4% - a minimum of 100 people -
of the more than 2,700 people on death row nationwide are innocent of the
murders for which they have been condemned. Since 1973, 164 condemned prisoners
nationwide, including 5 in California, have been freed from death row after
they were found to have been wrongfully convicted. When an innocent person is
executed, that’s not an error that can be remedied. It is a moral transgression
that we, as a body politic, allow to happen in our names.
Gov. Jerry Brown knows all this. So does Gov.-elect Gavin Newsom. Both oppose
capital punishment, though Brown has chosen not to fight for this position
during his current 2 terms as governor. Instead, he oversaw the drafting of a
new single-drug lethal-injection protocol - currently under legal challenge -
and sat out the 2016 initiative fight in which voters rejected ending the death
penalty and voted instead to speed up the appeal process.
Brown was wrong to stay silent. He should have spoken up on principle, and used
his popularity to sway voters away from the injustice of Proposition 66. He can
try to make up for some of his reticence now, but the calendar is running out.
This would be a good issue on which to spend some of the healthy stash of
political capital he has built up before he bows out in two months. Newsom, for
his part, has long opposed the death penalty and was a vocal proponent of
propositions in 2012 and 2016 to end it. He doesn’t really need fact-finding on
this issue.
Brown and Newsom ought to work together in the coming weeks to revive the
abolition movement here in California. As an act of grace before he leaves
office - in addition to taking whatever executive actions he can to help Kevin
Cooper and others on death row who may have been wrongly convicted - Brown
should make a forceful statement that reflects what he has said is in his
heart: The death penalty is wrong. Brown, who has generally been generous with
commutations, can take further steps as well; he could, for instance, begin the
process of commuting the death sentences of people whose crimes were committed
when they were young, before their brains, their judgment and their impulse
control were fully developed.
When Newsom takes office he should work with the new Democratic supermajority
in the state Legislature to place a fresh anti-death penalty initiative on a
future ballot, then use his bully pulpit to persuade Californians that it is
not only fiscally but morally necessary to abandon the barbaric system.
American public opinion already is shifting in that direction. While a small
majority of people tell pollsters they still support capital punishment, that
percentage is at its lowest since the U.S. Supreme Court reinstated the
practice in 1976. (No California polls have been conducted since Proposition
66's passage.) And fewer juries are imposing death sentences even as states
that still rely on capital punishment are executing fewer and fewer people. Our
national evolving standard of decency is moving away from the brutal and
immoral practice of killing people for their crimes. California should evolve
as well.
(source: Los Angeles Times Editorial Board)
*********************
Landmark California Law Bars Prosecutors From Pursuing Murder Charges Against
People Who Didn't Commit Murder
Jacque Wilson was in his car heading home from a softball game on a late August
evening when his phone rang. It was his friend Kate Chatfield: She told him
California Senate Bill 1437 had finally passed and was headed to Gov. Jerry
Brown's desk. "And I'm driving, and I just break down crying," Wilson told The
Intercept.
The new law would dramatically redefine use of the state's archaic felony
murder rule in criminal prosecutions. It would also mean that Wilson's younger
brother Neko might finally be coming home after more than 9 years behind bars
awaiting trial for a grisly crime that he insists he played no part in.
Neko Wilson was 1 of 6 people charged with the robbery-murder of Gary and
Sandra DeBartolo, who had an illicit marijuana grow operation inside their
Fresno County home. The state alleged that Neko and the others planned to steal
the dope and whatever cash was in the house. But that plot apparently went
sideways. Minutes after 2 of the accused conspirators, Leroy Johnson and Jose
Reyes, entered the DeBartolos' home on the morning of July 22, 2009, the couple
was killed, their throats slashed. After a high-speed chase, police caught up
with the getaway car.
Neko was not at the DeBartolos' house that day, and he wasn't in the getaway
car. Still, he was arrested and charged with the couple's murder. Prosecutors
announced that they would seek the death penalty for Neko under the felony
murder rule.
A throwback to English common law, the felony murder rule works like this: Say
2 people decide to burgle a house, and in the process, 1 of them shoots and
kills the homeowner; even if the shooting was completely spontaneous, and even
if one of the burglars didn't know the other had a gun, both could be held
equally liable for the murder. Neko Wilson might not have been there when the
DeBartolos died, but prosecutors alleged he was the one who hatched the plan
for the robbery, which meant he was responsible for what happened even if he
didn't kill anyone.
Most states have some version of the felony murder rule on the books, and in a
number of states, it can be used to seek the death penalty. In Texas, 5 men
have been executed for murders that they did not commit (a 6th is slated for
execution in December). Although a handful of states have curtailed or
eliminated this brand of accomplice liability, California's law had remained
active - much to the chagrin of people like Jacque Wilson, who is also an
attorney with the San Francisco Public Defender's Office.
Jacque had spent 8 years working to free his brother when he formally took over
as his lead defense attorney in 2017. Last spring, as he was preparing for
Neko's case to finally go to trial, he heard about a bill pending before the
California legislature that would bar prosecutors across the state from
charging someone with a murder they had no direct connection to. "The 1st time
I read it, it was as if the words were jumping off the pages," Jacque said. He
called Chatfield, who is policy director of the advocacy group Re:store
Justice, which was sponsoring SB 1437. "I said, 'Hey, whatever I have to do ...
I will do to try to get this bill passed.'"
It wasn't a particularly easy lift, but after a dramatic final vote in the
state Assembly, the bill did pass, and in September, it was signed by Brown. It
is now poised to serve as model legislation for reform-minded lawmakers across
the country.
California state Sen. Nancy Skinner, D-Berkeley, speaks on SB 1437 before the
Senate in Sacramento on Aug. 31, 2018.
State Sen. Nancy Skinner's district is in Alameda County, just east of San
Francisco. She said she had no idea that felony murder was something that
existed until she started hearing about it from constituents and advocates.
She remembers meeting with the family of an incarcerated woman who was
prosecuted under the rule. The woman had been on a 3rd date with a guy "who, in
hindsight, she never should've dated," Skinner said. The guy was a gang member.
The woman was in the car with him and several other members of the gang when
there was a drive-by shooting. "She was not aware that would happen," Skinner
recalled, "and yet she was charged with felony murder." What Skinner learned
convinced her to co-author SB 1437. Put simply, she said, felony murder is not
fair because it divorces intent from action.
Moreover, like other aspects of the criminal justice system, the law in
practice is both racist and sexist. The felony murder rule has
disproportionately impacted blacks in the state - roughly 40 % of those
convicted under the rule are black - and even more so, young people of color.
Nationally, 26 % of juveniles serving life without parole were convicted of
felony murder. (That the felony murder rule would sweep up so many juveniles
isn't entirely surprising, says Chatfield, "because most young people act in
groups.") Meanwhile, 72 % of women serving a life sentence in California did
not kill anyone. According to the California Coalition for Women Prisoners, a
majority of the women sentenced under the felony murder rule were accomplices
"navigating intimate partner violence, criminalized for survival acts."
California's new law bars prosecutors from using a person's intent to commit 1
crime - for example, a robbery - as a way to hold them responsible for a murder
committed during the course of that robbery, unless they can prove that the
person played some direct role in the killing.
Also significant is that the law is retroactive, meaning it affects the cases
of those already in prison, and applies equally to individuals who accepted
plea deals - 2 provisions that are often a tough sell: The criminal justice
system favors finality and relies on plea bargains to keep it humming along,
and lawmakers are often loath to intervene.
Exactly how many people may be eligible for release under the new law isn't
entirely clear, in part because of the way records are kept. Nationally, it is
estimated that a staggering 20 p% of individuals convicted of 1st-degree murder
were sent to prison under felony murder provisions. Based on that, Restore
Justice estimates that there are roughly 800 people incarcerated in California
for 1st-degree felony murder who may find relief under the new law. The number
of individuals convicted of 2nd-degree felony murder who would be eligible is
currently unclear, as is the number of those who pleaded guilty (though it is
possible that some are included in the 800-inmate estimate).
In 2016, another state lawmaker filed legislation that would have provided more
clarity, by requiring district attorneys to collect data on individuals they
charged with and convicted of felony murder. Despite broad support, the bill
ultimately failed under pressure from the district attorneys' lobby.
Indeed, the California District Attorneys Association, along with the
California State Sheriffs' Association and the California Police Chiefs
Association, opposed SB 1437. Sean Hoffman, legislative director of the
district attorneys association, told senators on the public safety committee
that while "we recognize that there's room for discussion on this concept of
some level of reduced liability for individuals who are not the actual killer
or major participant in one of these offenses," the group still had problems
with the bill. Chief among them: that foreclosing the possibility of charging
with murder "those who are not the killer or a major participant" in the crime
would not be in the interest of public safety. (Notably, research from the
University of Chicago has concluded that felony murder laws do not deter
crime.)
The sheriffs' association also said the bill's retroactivity was a problem.
That was particularly true for cases that resulted in a plea deal, lobbyist
Cory Salzillo told the senators, since it isn't "always the case" that
prosecutors have actually "proved up every fact" of a crime or a defendant’s
alleged involvement before entering into a plea deal.
But when questioned by a member of the committee about why the felony murder
rule was needed, Hoffman seemed to have a difficult time. After all, state Sen.
Steven Bradford noted, a person who committed a robbery in which someone was
killed could be charged with manslaughter if the facts warranted. And there was
nothing in the law that would bar a prosecutor from charging a non-killer
participant in connection with their role in the underlying felony. So,
Bradford asked, why would a prosecutor use the rule? It would be case-specific,
Hoffman responded.
"Your questioning is precisely why I am carrying this bill and trying to narrow
the application" of the rule, Skinner told Bradford. "Because there is -
depending on your perspective - one could say that this has evolved into a far
greater amount of prosecutorial discretion than we may have intended."
Chatfield thinks that prosecutors opposed the bill precisely because it is a
direct check on their discretion. "This makes them have to prove these elements
beyond a reasonable doubt, which is what they should be doing anyway," she said
- as opposed to overcharging defendants in order to force a plea deal. "You
can't just round up 5 people when you know 4 people didn’t do the killing; you
know they’re not culpable. But you get to go right at them and use your
discretion in that way. And we're saying no."
She points to several stories from across the state that Re:store Justice put
together in a publication for state lawmakers. They reflect the wide breadth
that prosecutors are given in deciding who to charge with murder - including in
the case of a woman who was passed out in a car blocks away when a murder
happened. "That's how that prosecutor used his discretion," she said.
Who the Law Leaves Out
For all the hand-wringing about how curtailing the use of felony murder would
tie prosecutors’ hands, force them to revisit old cases, and allow some
defendants to go free, there is still a large group of people incarcerated in
California under the rule who the new law will not immediately effect: Those
serving death sentences or life without parole, even when their connection to
the crime might have been tangential or tenuous.
In California, the imposition of a sentence of death or life without parole
requires a "special circumstance" finding - that the defendant was a "major
participant" in the crime or acted with "reckless indifference" to human life.
These add-ons were created by ballot initiative back in 1978 and can only be
changed by another initiative or a supermajority vote in the Legislature.
< But even a jury's finding that one or both of these special circumstances
applied to a particular case doesn't necessarily tell the whole story, says
Joanne Scheer, founder of the Felony Murder Elimination Project and a
co-sponsor of SB 1437. Her son Tony Vigeant is serving life without parole
after a jury concluded both special circumstances applied to his role in the
murder of a man named David Pettigrew in 2007.
According to the state, Vigeant and his cousin, both Marines who were stationed
at Camp Pendleton, enticed a 3rd service member, Ramon Hernandez, who had
sustained a major brain injury during a tour of duty in Iraq, to shoot
Pettigrew in a dispute over an alleged drug debt. Scheer disputes that
narrative and says that what actually happened was a tragedy rooted in a string
of poor, but pedestrian, decisions. After a day of watching football and
drinking beer, Scheer says, the 3 Marines decided to go to Pettigrew's to
collect a laptop that Vigeant had sold him, but that Pettigrew had not yet paid
for. Vigeant knew Hernandez had a gun, says Scheer, but it never occurred to
him that anything would happen at the apartment, let alone a murder.
Scheer has been working with California’s corrections department to try to
figure out how many inmates may be serving a life-without-parole or death
sentence based on a theory of felony murder. As of the end of July, there were
5,206 people serving life without parole in the state; of those, more than
3,700 were first-time offenders and more than 3,200 were under the age of 25 at
the time of the crime. Because it appears that so many individuals convicted
under accomplice liability are young, first-time offenders, Scheer suggests
that a large number of inmates serving life without parole might have been
swept into prison under the rule.
"I'm not coming off saying that prosecutors are bad. I go to prosecutors'
offices. I got an hour and a half in a DA's office and they answered my
questions," she said. "I said, 'Why do you think we need felony murder?' And
they said, 'Because without it, the killer may get away.' I said, 'But does
felony murder assure you that you got the murderer?'"
Although SB 1437 doesn't provide direct relief to people like Vigeant, the
California Supreme Court has created an avenue for potential review. The court
opined back in 1983 that the felony murder rule could be "barbaric' in
application, and in more recent years, it has issued a string of decisions that
would rein in indiscriminate use of the "major participant" and "reckless
indifference" special circumstances that can so dramatically increase
punishments. The court's decisions have provided a framework for a defendant to
have the imposition of special circumstances reviewed; if the courts agree they
were improperly applied, they can be tossed out. If that happens, the case
could be eligible for review under the provisions of SB 1437.
If Neko Wilson had gone to trial soon after he was arrested in 2009, he might
be in the same boat as Vigeant - after all, the state signaled early on its
intention to seek the death penalty. But there were flaws with the case from
the get-go, says his brother and defense lawyer Jacque Wilson, including
repeated failures by the state to turn over key exculpating evidence. The years
that Jacque spent fighting the state meant that Neko was still in jail awaiting
trial when SB 1437 finally passed out of the Assembly on August 29.
Jacque had been sweating it out, waiting to see if the bill would pass - and
for a while, things in the Assembly looked dicey. Lawmakers on each side of the
debate made impassioned speeches on the floor, urging colleagues to follow
their lead. When the voting started, it didn't look like the bill would get the
41 votes necessary. Chatfield was there, pacing the hallways, sending texts,
and making calls in an effort to gin up final support. As it turned out, Brown,
a supporter of the legislation, was making calls of his own. The vote was held
open, and finally, with 42 votes, the measure passed. That's when Chatfield
called Jacque. Both of them broke down in tears.
Fresno prosecutors dropped the charges against Neko, and on October 18, he was
the 1st person freed by the new law. Relief flooded Jacque. After Neko was
arrested, their father, Mack, told Jacque that all he wanted was to be able to
touch his son again. Now 83, he's been able to do that. "From my family's
perspective," says Jacque, "this is a miracle."
Violent Crime as Part of the Equation
Alexandra Mallick, executive director of Re:store Justice, hopes the new law
will provide the same relief for other families in California - and potentially
elsewhere.
In her work with incarcerated people, she had grown tired of hearing stories
about individuals doing time for murders they did not commit. "If we're really
talking about a just and fair system, someone who didn't even commit murder
spending a longer time in prison than someone who did - I don't see how that's
fair," she said. "It's just something that I thought was so unjust and that it
was a duty to right this wrong."
The U.S. is an outlier when it comes to felony murder, says Lara Bazelon,
director of the Criminal Juvenile Justice and Racial Justice clinics at the
University of San Francisco law school. "It's hundreds of years old, and the
rest of the Western world has turned its face against it and has abolished it,"
she said. "The U.S. stands alone."
Although there are roughly 40 states that have some version of the felony
murder rule, there are some that have curtailed or abolished it altogether,
including Arkansas, Hawaii, Kentucky, Massachusetts, Michigan, and Ohio. Since
passage of SB 1437, Mallick and Chatfield say they've been fielding inquiries
from across the country from individuals and groups interested in passing
similar legislation in their states. Chatfield has heard from lawyers in New
York and Pennsylvania. Attorneys from Massachusetts have called, too; they'd
like to see their provisions made retroactive. Mallick says she's been in touch
with a group in Texas interested in pushing for reform during the state's 2021
legislative session.
Mallick says that part of what's so meaningful about California's reform of the
felony murder rule is that it has addressed the issues of system reform and
violent crime head on. "Doing stuff that deals with violence or issues around
violence is not incredibly popular," she said. "But my belief is that you can't
really move the needle with mass incarceration unless you talk about issues
around violence."
Chatfield agrees and hopes that California's success will lead to more
discussion and action. "I think it starts a conversation about what we talk
about when we talk about 'violence.' What does it mean when we talk about
murder? If somebody doesn't do anything to facilitate that murder and doesn't
have that intent, what does it mean to call that person a murderer?" she asks.
"I think it's a very important conversation about how we've labeled a lot of
our crimes. And if we can address something called 'felony murder' and educate
people, we can educate people about a lot of things."
(source: theintercept.com)
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