Governor Makes Political Decision to Commute Sentence While Possible Innocent Remains on Death Row

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arnold_june_2009With hundreds of worthy choices for Governor Arnold Schwarzenegger to choose to commute their sentence or to outright pardon, Gov. Schwarzenegger instead commuted the sentence of the son of former Assembly Speaker Fabian Nuñez, Esteban Nuñez, who had pled guilty to participating in the killing of a college student.

Mr. Nuñez was sentenced to 16 years in prison for aiding and abetting the stabbing death of a college student near San Diego State.  His sentence was reduced to seven years by the Governor.

“I do not discount the gravity of the offense,” Gov. Schwarzenegger’s statement said. “But given Nuñez’s limited role in Santos’ death, and considering that… Nuñez had no criminal record prior to this offense, I believe Nuñez’s sentence is excessive.”

Right.  The LA Times reports that the convict’s father “Fabian Nuñez, a Democrat, grew close to the Governor while speaker. The two worked together to pass the state’s landmark global warming law, which was a signature achievement of Schwarzenegger’s time in office. Fabian Nuñez is a business partner of the Governor’s chief political adviser at the consulting firm Mercury Public Affairs.”

“We are totally outraged,” said Fred Santos, the father of slain Luis Santos. “For the Governor to wait until the last day in hopes it would fly under the radar is an absolute injustice.

“The governor did not even have the courtesy to notify the victim’s family,” he said. “This is dirty politics: cutting backroom deals. I guess if you’re the son of somebody important you can kill someone and get all sorts of breaks.”

Nevermind that while Mr. Nuñez played a limited role in the death of this guy, he stabbed another guy in the same incident.

This is pure political favoritism.  The Governor did commute a couple of more worthy cases. He commuted the sentence of Sara Kruzan, who had shot and killed her pimp in 1994 when she was a 16-year-old prostitute.  He commuted that sentence from life without parole to 25 years to life with the possibility of parole. 

He also commuted the sentence of Alberto Torres who shot and killed a guy in 1999 in self-defense, fearing that the victim was attempting to run him over with a car.  That sentence was shortened to ten years from 25 years to life.

So with such worthy cases, the Governor commutes the sentence of the son of a prominent politician?

One person that the Governor did not assist is Kevin Cooper, who sits on death row despite serious questions about whether he actually committed the four murders in 1983 that he was convicted of.

The LA Times, shortly before Christmas, joined the chorus of calls for his death sentence to be commuted.

The Times noted that considerable doubt has been cast upon the evidence used to convict Mr. Cooper of four murders that occurred in San Bernadino County in 1983.

The Times editorial cites, among other things, the analysis by federal Judge William Fletcher of the U.S. Court of Appeals for the Ninth Circuit.

They write, “Much of the evidence against Cooper has been seriously questioned, most comprehensively in an opinion by Judge William A. Fletcher of the U.S. 9th Circuit Court of Appeals, who dissented from a decision not to hear an appeal by Cooper. Fletcher noted that Josh originally said the killers were three white or Hispanic men (Cooper is black); that the warden of the prison where Cooper had been incarcerated said the shoe that made the bloody footprint was sold to the public; and that the cigarette butts, which were not found in the original inspection of the car, could easily have been planted. What’s more, the station wagon turned up in Long Beach.”

The Times writes, “Long after his conviction, as Cooper was pursuing appeals, a blood test was performed on the T-shirt; according to analysts, the test detected Cooper’s DNA. At first, that seemed to be the incontrovertible scientific evidence that had for so long been elusive — but Fletcher noted that the blood on the T-shirt contained signs of a preservative used by the sheriff’s office to preserve blood in a laboratory for later testing. According to the judge, that suggested the blood “had been planted on the T-shirt.””

“Fletcher wrote that Cooper ‘is probably innocent of the crimes for which the state of California is about to execute him.’  Whether or not that’s true, the judge makes a compelling argument that sheriff’s office investigators planted evidence in order to convict Cooper and discarded or disregarded other evidence pointing to other killers — creating not just reasonable but serious doubt about his guilt,” the Times wrote.

They conclude, “This newspaper opposes the death penalty under any circumstances, and we wouldn’t object if the governor commuted the sentences of all [717] people on California’s death row. But execution is especially outrageous when the prisoner may be innocent. Gov. Schwarzenegger should commute Cooper’s sentence.”

Amnesty International has also noted this case.  In a letter to the governor, Amnesty International’s USA Executive Director Larry Cox wrote, “Allowing the execution of Kevin Cooper to proceed would compound the injustice of the murders for which he was sentenced to death, especially because a giant cloud looms over the reliability of his conviction.”

Mr. Cox added that while “as a human rights organization, Amnesty International supports justice and accountability for the victims of this abhorrent crime,” the organization is “very concerned about the deep doubts raised as to Mr. Cooper’s guilt.”

Judge Fletcher was writing for at least five other judges in his dissent, and they noted in writing that California was about to execute an innocent man, “There is no way to say this politely,” they said. “The district court failed to provide Cooper a fair hearing and… imposed unreasonable conditions on the testing” ordered by the Ninth Circuit.

“It is not every day that a distinguished federal judge argues that a death row prisoner is likely innocent, detailing in over one hundred pages the ways in which police and prosecutors tainted the case,” said Laura Moye, director of Amnesty International’s USA Death Penalty Abolition Campaign. “It is incredibly difficult to dismiss the severity of the claim that Cooper was framed for a crime he did not commit, given the many judges who have joined Justice Fletcher’s dissent.”

Even if the Governor were not convinced of Mr. Cooper’s innocence, commuting the sentence to life without parole contains very little risk to the public or the state.  And yet apparently the Governor, while refusing to do that, puts a potentially dangerous man on the streets within, at most, a couple of years.

The Governor could do the state a favor by putting a number of people, who committed very minor crimes but were sentenced to long prison sentences, out of prison and back to their homes and families.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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13 thoughts on “Governor Makes Political Decision to Commute Sentence While Possible Innocent Remains on Death Row”

  1. Neutral

    The other side of the story, also available in the LAT article:

    In exchange for having a murder charge dropped, Nuñez pleaded guilty to manslaughter and assault. But he received the same sentence as Jett, who admitted stabbing Santos.

    After the judge imposed the sentences in June, Nuñez’s father said angrily that his son had been led to believe by the judge that he would receive a sentence of seven to 11 years and that his son would not have pleaded guilty if he had known the sentence would be 16 years.

  2. run26miles

    Yes, we must free Kevin Cooper! Why would the LA Times only call for his sentence to be commuted??? He’s so obviously innocent he should be set free and given a parade and reparations for time spent unjustly behind bars!!!
    Of course everyone else on death row is innocent, and should also be released!!!
    Richard Allen Davis, we got get him out!
    Scott Peterson, framed!
    Richard Ramírez, cops lied!
    David Carpenter, planted evidence!
    Charlie Ng, wasn’t him on the video!!!
    And all the rest, they are innocent, and even if they’re not, let them go now!!!! Because we are THE PEOPLE’S VANGUARD of DAVIS!!! whatever that means!!!

  3. E Roberts Musser

    Personally, I’m not in favor of governors or the President commuting sentences/handing out pardons. It has too often been used to free people w political connections. The original purpose for pardons/commuting sentences has long since been lost. From Wikipedia – “A pardon is the forgiveness of a crime and the penalty associated with it. It is granted by a head of state, such as a monarch or president, or by a competent church authority. Commutation is an associated term, meaning the lessening of the penalty of the crime without forgiving the crime itself. A reprieve is the temporary postponement of punishment. Clemency is a general term encompassing all of these. Today, pardons are granted in many countries when individuals have demonstrated that they have fulfilled their debt to society, or are otherwise deserving (in the opinion of the pardoning official) of a pardon. Pardons are sometimes offered to persons who claim they have been wrongfully convicted. Some believe accepting such a pardon implicitly constitutes an admission of guilt, so in some cases the offer is refused (cases of wrongful conviction are nowadays more often dealt with by appeal than by pardon).”

  4. Superfluous Man

    Run,

    “Why would the LA Times only call for his sentence to be commuted???”

    Because of the cases they reviewed the evidence and circumstances for which Mr. Robinson’s decisive guilt is based was found to be highly questionable and the state’s subsequent (nearly approaching, perhaps?) punishment of death irreversible?

    Are there other cases you believe to be more deserving of the LA Times’ attention with regard to the commuting of sentences?

    “He’s so obviously innocent he should be set free…”

    You believe unequivocally in his guilt?

    “and given a parade and reparations for time spent unjustly behind bars!!!”

    You think those who are wrongly convicted and spend decades (or any length of time) in prison as an innocent man or women should not be allowed some form of repayment for the injustices they’ve suffered?

    “Of course everyone else on death row is innocent, and should also be released!!!”

    That is precisely what the LA Times and DMG were postulating.

  5. JustSaying

    [quote]“One person that the Governor did not assist is Kevin Cooper, who sits on death row despite serious questions about whether he actually committed the four murders in 1983 that he was convicted of….”[/quote] It’s good that “serious questions” are asked about any guilty finding. But, the fact that questions seriously can be raised does not mean the guilty person is any less guilty, let alone innocent.

    I see these campaigns primarily waged to bring an end to the death penalty. Rather than really supporting any particular individual’s claims, the groups and individuals jump into well-publicized cases to help strengthen their bigger issues about capital punishment. What better argument can be made than we shouldn’t be killing anyone when it could end up that the person [u]might[/u] be innocent?!

    It shouldn’t surprise you that Arnold didn’t act again on this case–I take the governor at his word as he considered your point six years ago: [quote]“I have carefully weighed the claims presented in Kevin Cooper’s plea for clemency. The state and federal courts have reviewed this case for more than 18 years. Evidence establishing his guilt is overwhelming, and his conversion to faith and his mentoring of others, while commendable, do not diminish the cruelty and destruction he has inflicted on so many. His is not a case for clemency.”[/quote] To conclude that the jury got it wrong requires that one ignore a stunning amount of trial evidence as well as the later, confirming DNA test results.

  6. Superfluous Man

    Just Saying,

    “But, the fact that questions seriously can be raised does not mean the guilty person is any less guilty, let alone innocent.”

    True, serious questions surrounding the conviction of a defendant does not necessarily translate to that individual’s innocence. However, in this case, certain federal judges find the evidence used to convict him to be highly suspect, so much in fact that they believe the state just might execute an innocent man if this man’s case isn’t scrutinized any further or his sentence commuted.

    “I see these campaigns primarily waged to bring an end to the death penalty.”

    IMO, this isn’t exclusively a group of bandwagon abolitionists benefiting from the latest “innocent man to be executed” story that catches heat in the media.

    “What better argument can be made than we shouldn’t be killing anyone when it could end up that the person might be innocent?!”

    With a system that is fallible, it may be prudent for the state to avoid the irreversible policy of executing defendants whose demise is determined by that very system?

    “To conclude that the jury got it wrong requires that one ignore a stunning amount of trial evidence as well as the later, confirming DNA test results.”

    Of which the federal judges find at least some to have been possibly planted or tampered with by law enforcement officers as to build a stronger case against Mr. Cooper? I believe it’s not a matter of denying that such evidence exists in certain cases, rather how it came about and how it was handled seems to be the focus of those questioning Cooper’s guilt.

  7. Rifkin

    [i]”Of which the federal judges find at least some to have been possibly planted or tampered with by law enforcement officers as to build a stronger case against Mr. Cooper?”[/i]

    Correct me if I am wrong–I have not followed this case too closely–but my understanding is that the minority group* of judges from the 9th Circuit never discussed or questioned the DNA findings, which were determined after Mr. Cooper’s trial. Their complaint, I thought, had to do with procedural issues inside of Mr. Cooper’s original trial, which they believed were sufficient to grant a new trial. I also don’t know–one way or the other–if they actually spoke to Mr. Cooper’s “innocence.” I thought they were more focused on the behavior of the police and the prosecution in this case.

    Again, restating that I don’t know enough about the Cooper case to register my own opinion on it, I thought the fact that Edward Blake ([url]http://www.sfgate.com/cgi-bin/blogs/djsaunders/detail?entry_id=78864[/url]), who ran the DNA testing in the case for the defense, came out afterward and said that the DNA evidence produced against Cooper was legitimate and that the notion that Cooper’s DNA was planted was impossible in this case was pretty damning evidence against the idea that Cooper was innocent. [quote] Blake wrote that the DNA tests “proved” that Cooper was the source of blood at the Ryen home, the source of DNA found on two cigarette butts found in the Ryen car, and the source of blood smears on a T-shirt also containing Doug Ryen’s blood. [/quote] To my mind, the most interesting evidence on Cooper’s side of the ledger is that the one surviving victim supposedly identified his attackers as “three white males,” while Cooper is black and clearly so. I don’t know what to make of that evidence. It does not fit in with the prosecution’s theory of the case. Yet in and of itself it does not prove that Mr. Cooper–who it should be said had a horrific record of violent crimes before he was tried for this brutal slaying–is innocent.

    Another bothersome thing about the Cooper defense team is that, while not proving his guilt, they come across to me as a bunch of conspiracy theory nuts. When you have a maniac like Ramsey Clark ([url]http://www.iacenter.org/[/url]) leading your charge, it hurts your credibility in my mind.

    *I don’t mean minority as “not white.” I have no idea what those five judges look like on the outside. I mean minority as “they were not speaking for the majority of the 42 federal judges in the 9th Circuit.

  8. Rifkin

    [i]”Correct me if I am wrong–I have not followed this case too closely–but my understanding is that the minority group* of judges from the 9th Circuit never discussed or questioned the DNA findings, which were determined after Mr. Cooper’s trial.”[/i]

    I had this wrong. I just started to read the judges’ dissent and I see that they discuss the DNA question in great detail. Here is a small excerpt of their writing in Cooper vs. Brown ([url]http://www.ca9.uscourts.gov/datastore/opinions/2009/05/11/05-99004o.pdf[/url]): [quote]The state-designated lab obtained a test result showing an extremely high level of EDTA in the sample that was supposed to contain Cooper’s blood. If that test result was valid, it showed that Cooper’s blood had been planted on
    the t-shirt, just as Cooper has maintained.

    A careful analysis of the evidence before the district court strongly suggests that the result obtained by the state designated lab was valid. However, the court allowed the state-designated lab to withdraw the test result on the ground of claimed contamination in the lab. The court refused to allow any inquiry into the alleged contamination. The court refused to allow Cooper’s experts to review the bench notes of the state-designated lab. The court then refused to allow further testing of the t-shirt, even though such testing was feasible. [/quote] [i]”Their complaint, I thought, had to do with procedural issues inside of Mr. Cooper’s original trial, which they believed were sufficient to grant a new trial. I also don’t know–one way or the other–if they actually spoke to Mr. Cooper’s “innocence.” I thought they were more focused on the behavior of the police and the prosecution in this case.”[/i]

    That presumption also appears to be wrong on my behalf. Their very first sentence of their argument reads, “The State of California may be about to execute an innocent man.”

  9. Rifkin

    [i]”… the DNA evidence produced against Cooper was legitimate and that the notion that Cooper’s DNA was planted was impossible in this case was pretty damning evidence against the idea that Cooper was innocent.”[/i]

    I am now reading the dissent in Cooper v. Brown ([url]http://www.ca9.uscourts.gov/datastore/opinions/2009/05/11/05-99004o.pdf[/url]) and I must admit, the author of this argument, Judge William Fletcher:

    [img] http://3.bp.blogspot.com/_Mxvt5nibaOc/RfHurQ5ed1I/AAAAAAAAADA/0Aw2bzYsh6w/s320/Judge+William+Fletcher.jpg [/img]

    makes a powerful case for Mr. Cooper’s innocence and for the likelihood that the actual killer was a guy named Lee Furrow, who also had a criminal past and was active with the Aryan Brotherhood and that the San Berardino prosecutors and their deputies planted evidence against Kevin Cooper.

    For anyone who thinks Cooper is probably the real killer, you owe it to yourself to read Judge Fletcher’s argument. It’s very long, but it is compelling reading.

    I should note that when people speak of the five judges who contend that Cooper may be innocent, they are referring to Judge Fletcher and four of his 9th Circuit colleagues who agreed with his dissenting opinion, but did not themselves take part in writing it.

  10. Lorina Lamm

    When we heard that Governor Schwarzenegger had commuted the manslaughter sentence for Esteban Nunez, the son of former California Assembly Speaker, Fabian Nunez, it put the final nail in his coffin. Until now, we had given Governor Schwarzenegger the benefit of the doubt because our Legislature was difficult to deal with. Nevertheless, this move has made us lose faith in him as a person of ethics and one that upholds the law of California. Once he is out of office, we’re sure his plans are to return to the film industry. However, our plans are to boycott his movies, and we hope other Californians will make the same decision.

  11. E Roberts Musser

    To SM: I saw the article you are talking about. DNA testing has been a wonderful thing. But I often think about those cases where DNA testing is not available to prove innocence or guilt. Our justice system is highly imperfect and in much need of improvement…

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