Eye on the Court: Death Penalty Creates Unequal Application Under the Law



Last week, a Federal District Court Judge would invalidate the death penalty in the case of a man who has sat on death row for over 20 years. Federal Judge Cormac J. Carney wrote in a decision that – while limited – could have widespread impacts, “On April 7, 1995, Petitioner Ernest Dewayne Jones was condemned to death by the State of California. Nearly two decades later, Mr. Jones remains on California’s Death Row, awaiting his execution, but with complete uncertainty as to when, or even whether, it will ever come.”

“Mr. Jones is not alone,” writes Judge Carney, “Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution.”

The ruling prompts Woodland Daily Democrat Editor Jim Smith to note, “William Gardner, 30, has been charged with the brutal Nov. 18, 2013, murder of Winters resident Leslie Pinkston, 32. He’s scheduled to stand trial next month.”

“Yolo County District Attorney Jeff Reisig and Deputy District Attorney Deanna Hays — who are prosecuting the case — made local news of sorts recently when they decided to not pursue the death penalty for Gardner,” Mr. Smith writes.

“People may not like that decision, but we think it was the right course of action. And we’re not the only ones. Also in favor of doing away with the death penalty is a federal judge who called it cruel and unusual,” he continues. “Why? Because it takes too damn long for the state to enact the ultimate penalty for a person convicted of murder.”

While we agree it takes a long time for the system to work, as Mr. Smith added, “we have issues with the death penalty anyway. Too many people — mainly of color — have been wrongly convicted and then put to death across this nation. We’re becoming more and more convinced that the death penalty is cruel. And, for what it’s worth, there are fewer nations in the world who still have the death penalty.”

But Mr. Smith’s column reminded us that on July 25, 2012, Jeff Reisig wrote an op-ed in the local papers entitled, “Sometimes seeking justice demands the death penalty.”

In that article he wrote, “There are some murders that are so horrific that we, as a democratic society, have concluded that the death penalty is an appropriate punishment.”

He would then recount the brutal 2008 murder of Deputy Tony Diaz on June 15, Father’s Day, when Mr. Topete “fired an assault weapon 17 times at Diaz, penetrating his bullet proof vest and fatally striking him in the chest.

“At the time of the shooting, Topete was on parole from state prison for shooting an unarmed man in front of a convenience store in 1998. He was also a validated gang member and had been previously convicted of multiple felonies under California’s three-strikes law.

“Diaz had attempted to contact Topete for violating parole by drinking and driving with his infant in his car. Topete led Diaz on a 100 mile-per-hour chase before abandoning his car and baby on a dark dirt road in rural Yolo County. Instead of pursuing Topete on foot, Diaz stayed with Topete’s abandoned baby.

“Minutes later, Topete, who was lying in wait behind the corner of a building with an assault weapon, opened fire while Diaz had his back to him. In October 2011, a jury convicted Topete of murder with multiple special circumstances and sentenced him to death. At the time of his murder, Deputy Tony Diaz was 37 years old. He is survived by his children, parents, siblings and many other family members, friends and loved ones.”

However, while the murder committed by Mr. Topete, for which he was convicted and sentenced to sit on death row for the rest of his life barring a change in the state law one way or the other, was brutal, it is unclear why it falls into the category of being so “horrific” that “the death penalty is an appropriate punishment” – but the November 2013 murder of Leslie Pinkston by William Gardner does not.

On November 18, 2013, Ms. Pinkston was sitting in her car, waiting to go to work on Railroad Avenue in downtown Winters, when she was shot. Mr. Gardner allegedly shot his ex-girlfriend four times, once in the head.

Like Mr. Topete, Mr. Gardner is also charged with enhancements of lying in wait and the intentional and personal discharge of a firearm causing death. Moreover, Mr. Gardner committed this crime while on release from custody on bail or own recognizance for a pending felony offense, and there were added enhancements to his charges of murder, as well as possessing a firearm by a person previously convicted of a felony and stalking.

So, why does Marco Topete’s crime rise to the level of the death penalty but not William Gardner’s crime? One of the problems is the unequal application of the death penalty, not only across jurisdictions and states but within the same jurisdiction, depending on who the victim was.

A law enforcement officer’s killing is more likely to face the death penalty, a killing of a white person by a minority is more likely to see a death penalty charge; the least likely cases are with a minority victim, particularly if the perpetrator is white.

“We want California to know who’s behind the effort to abolish the death penalty. And, we simply want the truth to be told,” Mr. Reisig wrote in 2012. “The ACLU and its agents are responsible for endless delays in the criminal justice system, frivolous appeals and a mountain of misinformation. And now, they claim the death penalty is irrevocably broken and costly and should be repealed.”

In a response, though, Yolo County Public Defender Tracie Olson pointed out that, why Mr. Reisig may lament the delays, “he conveniently ignores the fact that the National Registry of Exonerations has recorded over 920 exonerations across the United States since 1989, more than 100 of which had been sentenced to death.”

For Jim Smith, “U.S. District Judge Cormac Carney’s decision only underscores what most of us already knew about how the state punishes its most despicable murderers.”

“The way the death-penalty law is applied — more to the point, not applied — hundreds are sentenced to die but the vast majority of them live in prison for years while awaiting appeals. As a result, the threat of execution is not the crime deterrent it should be, and murder victims’ loved ones seeking retribution may suffer through decades of false hope. The legal and incarceration costs to the state run to tens of millions of dollars a year,” he continues.

“In his ruling Carney added another layer to these objections. The long delays and uncertainties in the state’s death-penalty system, said the Orange County judge, violate the U.S. Constitution’s prohibition on cruel and unusual punishment. The application of the death penalty, he wrote, shouldn’t be random and arbitrary,” he said.

We see that played out here in Yolo County.

“We would prefer that the death penalty be abolished,” he adds. “But, failing that, state legislators should react with renewed efforts to streamline the cumbersome death-penalty appeals process and move to a legally passable single-drug protocol for lethal injections.”

The problem is that streamlining the process means the introduction of errors. Across the nation we have seen numerous cases where the death penalty has been carried out amid plausible claims of innocence and questions about the mental intelligence of defendants.

As Tracie Olson noted in her 2012 response piece, “A handful of Americans have been exonerated posthumously.  Many believe that Cameron Todd Willingham, executed in 2004 for the arson death of his three daughters, will likely be another, as arson experts have all but debunked the evidence that convicted him at trial.  At least ten more have been identified as executed but probably innocent.”

She added, “I doubt anyone could defend the notion that the long legal processes that freed these innocent people were frivolous.  Indisputably, those exonerated posthumously did not receive due process of the law, and the established checks and balances of the criminal justice system irrevocably failed them.”

Back in May of 2013, the Mississippi Supreme Court halted the scheduled execution of Willie Manning a mere four hours before he was scheduled to be put to death by lethal injection.

The staying order, brief as it is, does not specify why the court blocked the execution, but the Atlantic magazine, which has extensively covered the case, notes, “The Mississippi court’s order Tuesday is likely based upon the scientific evidence that was and was not introduced at trial. Manning’s attorneys have long argued that state officials should test DNA and fingerprint evidence from the crime scene — evidence that has never been tested and that would either incriminate Manning definitively or perhaps identify someone else who may have committed the crimes.”

That a case as flawed as this one came within four hours of execution demonstrates that streamlining the death penalty process may expedite executions, but it will also expedite additional problems in the system.

Jim Smith concluded, “California residents should press their representatives with reminders that a majority of voters want to keep the death penalty — but it must be applied in a more reasonable, efficient and humane way…. Carney’s assertion that long delays in carrying out executions is cruel to the condemned may be fresh legal reasoning. But the general idea that the current system needs fixing is nothing that wasn’t already known.”

—David M. Greenwald reporting


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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12 thoughts on “Eye on the Court: Death Penalty Creates Unequal Application Under the Law”

  1. D.D.

    Damien Echols is a fair skinned young man from a low income family who was wrongfully accused of a heinous crime that he did not commit. He spent years on death row.
    He wrote 3 books about this tragedy. He is now physically free from incarceration.
    He and his courageous wife, Lorri Davis, recently published their prison love letters.
    On page 326 of “Yours For Eternity”, after several documentaries exposed this travesty of justice, still on death row, he wrote this letter to his wife:
    February 6, 2001
    My lovely one,
    Do you think I really do still “seem evil”? I’ve tried so hard to get rid of that, and to get it off me the past couple of years. What else can I do? People always watch me, like they’re looking for a crack to see into so they can scream, “I saw it! It’s still there! I knew it!”
    Sometimes, it’s almost as if damned near everyone is doing that. Just waiting for me to slip up. It’s an entirely uphill fight.
    I am yours forever,
    This illustrates the mental torture that death row inmates suffer on a daily basis. I imagine he still occasionally gets those same looks from the general public, now that he is “free”.

  2. D.D.

    Dear Mr. Reisig,
    If Mr. Echols’ case had been rushed along or put on an obscene “fast track”, his wife would be delivering flowers to his grave, instead of living in New York and trying to forget that nightmare.

  3. South of Davis

    The one thing that my far right (I’ll personally offer kill every guy on death row by beating them with a bat) friends and my far left (no one even the guy that admits to killing kids and asks the state to kill him) deserves to die friends agree on is that the death penalty in California is broken. Since we really don’t have a death penalty in California it is time to get rid of it (and save the money we spend on the expensive joke of a process)…

    1. Davis Progressive

      the question that seems unresolved is what to do about it and there seems to be two thoughts on that – one – get rid of it. two – speed it up. i have heard that some of the former governors – wilson, deukmejian, and davis are pushing a speed it up initiative for two years from now.

  4. South of Davis

    DP wrote:

    > the question that seems unresolved is what to do about it and there
    > seems to be two thoughts on that – one – get rid of it. two – speed it up.

    One idea that seems to make most (but not all) people happy is to “speed it up” (like the week after the verdict) for the guys (they are almost all guys) that “admit” to the killing. It is painful for (almost) everyone to see lefty attorneys fight for years (sucking millions of tax dollars) to defend people like that clown guy who killed the kids (and said he would do it again if he ever got out) even when the guy said that he wanted to (and deserved to) die…

    1. Tia Will

      South of Davis

      “(and deserved to) die”

      And here is the real key for me. What authority has vested in any human being the right to decide when another human being “deserves to die “? Is this not in itself the reason that we believe that humans should not kill one another? If one person cannot decide that another individual should die, why are 12 more righteous in making this decision ? Clearly “mistakes” can and are made by police, prosecutors, judges and juries sometimes costing innocent people their lives. “Mistakes” are also made by those who end up committing or being indirectly involved in the commitment of another crime in which someone is killed. And yet, we sanction the death penalty for the second group, convicted criminals ,but I have never heard of a law enforcement official or judge or jury member being given the death penalty, even when their misbehavior or malfeasance cost a person life in prison or even resulted in an innocent persons execution. Or how about the death penalty for a convict who knowingly gives false testimony leading to the false conviction of murder resulting in the death penalty, no death penalty for them either I guess.

      Unequal enforcement of the law would appear not to be a rarity.

  5. Tia Will

    South of Davis

    The answer for those that want to die would seem to me quite easy and has nothing to do with the state enforcing the death penalty. Simply provide them with the means and allow them to commit suicide if they desire without having to go through the current process of hanging themselves. This is the method most commonly employed now but risks that the suicide attempter will be discovered, cut down and resuscitated…..yes, even if he is on death row.
    This is so the state can do what ????? Determine the time itself costing thousands of more dollars than we be needed if we simply allowed the condemned to self execute. What state purpose is served by this kind of mockery of both life and justice ?

  6. tribeUSA

    Re: “A law enforcement officer’s killing is more likely to face the death penalty, a killing of a white person by a minority is more likely to see a death penalty charge; the least likely cases are with a minority victim, particularly if the perpetrator is white.”

    Again, must use’ trivial’ details to breakdown into classes for meaningful statistical comparisons:
    (1) Seriousness of crime (murder 1,2,3 or manslaughter)
    (2) Priors
    (3) Aggravating factors (e.g. torture, rape, kidnapping etc. prior to or in conjunction with commision of murder)

    David, the mainstream media often throws out statements like yours as I quoted above, with no qualifiers such as (1), (2), (3) above which are key, and so the reader has no sound basis on which to form a judgement as to whether or not there is racism in sentencing; instead the reader is left wondering whether such statements are made in order to stoke racial tensions–if you continually and needlessly pick at a scab; rather than healing it breaks open and bleeds again.

    1. David Greenwald Post author

      I tried to identify the key points in this case. The previous death penalty case in Yolo was the shooting of CHP Officer Andy Stevens by Brent Vollarich (sp).

    2. D.D.

      T USA,
      Do you have any solutions to the healing of the racism and classism scars? My idea is to rotate defense lawyers and prosecutors on an annual basis. Too bad if they are in the middle of a trial when the rotation happens. Let the new lawyer give it a go with fresh eyes.

  7. Pingback: Death Penalty Delays Unconstitutional | Justice for Willie Manning

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