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Death Wish

Do Prosecutors Misuse the Death Penalty for Political Gain?

BY BARTHOLOMEW JAMES

On Monday, January 16, California death row inmate Clarence Ray Allen, a legally blind diabetic, said he enjoyed his last meal of buffalo steak cooked medium rare, all white meat extra crispy and original recipe Kentucky Fried Chicken, sugar-free pecan pie, sugar-free black walnut milkshake, and pan-fried bread. In a final 171-word written statement, the 76-year-old Allen expressed love for his family and friends and said his official last words should be recorded as "Hoka Hey it's a good day to die" -- a reference to his Cherokee heritage. Allen was sentenced to death for orchestrating a 1980 triple murder from his state prison cell, where he was serving a life sentence for the 1975 murder of his son's girlfriend. Allen directed a Folsom Prison parolee to exact revenge on the three victims, who had been witnesses against Allen at his earlier murder trial.

Several hours after his final meal, the wheelchair-bound inmate was rolled to the death chamber at San Quentin State Prison, where five guards carried him onto a gurney and then strapped him down. Intravenous tubes were inserted into each of his arms, and the first of three ultimately lethal injections started early Tuesday morning at 12:20 a.m. Eighteen minutes later, Allen was pronounced dead. Allen died without expressing remorse for his crimes or sympathy for his victims or their families.

Assemblywoman Sally Lieber (D-San Jose) witnessed the execution and described it as "gruesome." Lieber supports the death penalty because, among other things, it protects society from the worst of the worst. But her endorsement is qualified. "My position has been that I can accept a death penalty that is supported by the voters, is fair, and has safeguards," she explained. Watching the Allen execution from her vantage point six feet away from the death chamber did, however, invoke in her a distinct sense of cognitive dissonance, leaving her unsettled. "It was very sobering to see a 76-year-old man be carried into the execution chamber and strapped down and killed," she said. "Clearly he was not someone who represented a present danger to anyone."

The same evening that Allen was eating steak and fried chicken, another death-row inmate, Miguel Bacigalupo, was served institutional-style spaghetti, mixed vegetables, two slices of bread with butter, and apple slices in his cell at the Contra Costa County jail in Martinez. The next morning, about seven hours after Allen's heartbeat was flatlined by the state of California, Bacigalupo was secured with ankle and wrist chains and escorted to Department 28 of the adjoining A.F. Bray Courts Building for one in a series of hearings that would determine if the Peruvian native would one day meet the same end as Allen. That day, 84-year-old veteran judge Richard Arnason would hear testimony alleging that the conviction of Bacigalupo was flawed because the prosecutor withheld crucial evidence from the defense team. And that that evidence would have made Bacigalupo ineligible for the ultimate punishment.

About six weeks before Bacigalupo entered the Martinez courtroom, the United States Conference of Catholic Bishops issued a statement, A Culture of Life and the Penalty of Death (www.usccb.org/sdwp/national/penaltyofdeath.pdf), in which the bishops renewed their call to end the death penalty. The document was released on the 25th anniversary of a similar 1980 statement, which was issued several years after a United States Supreme Court decision effectively reinstated capital punishment in the nation. Andrew Rivas, an attorney and policy advisor on criminal justice issues for the U.S. bishops, explained that the conference issued the updated statement to renew its position and to capitalize on recent court victories which limited the application of the death penalty.

In the last five years, the Supreme Court has ruled that executing mentally retarded offenders and juveniles constitutes cruel and unusual punishment and is therefore unconstitutional. The United States bishops conference had submitted friend-of-the-court briefs (www.usccb.org/sdwp/national/deathpenalty/dpcourt.shtml) in both cases and was encouraged by the outcome. "The bishops wanted to show that we were involved in this and we were starting to see the fruit of the work over the last 25 years," said Rivas. "We decided that this is a time to renew and recommit, especially now that we're getting victories. We're seeing that the death penalty is shrinking, and we want to keep it shrinking until it just goes away and is not used anymore."

The U.S. bishops' statement encourages Catholics, the public, and the government to forgo the use of the death penalty for several reasons, including that "its application is deeply flawed and can be irreversibly wrong, is prone to errors, and is biased by factors such as race, the quality of legal representation, and where the crime was committed." Citing statistics from the Death Penalty Information Center in Washington, D.C., the statement also points out that, since the 1970's, more than 120 people who were on death row have been exonerated. Death Penalty Information Center 's list of the names and details of each exoneration (www.deathpenaltyinfo.org/article.php?scid=6&did=109) is rife with prosecutions in which the government withheld exculpatory and other evidence from the defense.

Aspects of the Bacigalupo case may provide insight into the tacit incentives that compel prosecutors to withhold evidence and obtain convictions to the detriment of due process of law. At the nexus of political ambition and public opinion, the truth can be compromised -- a phenomenon that Robert Bryan, lead counsel on the Bacigalupo defense team, refers to as the "politics of death." The Bacigalupo case also represents a complicated and unique subset of potentially tainted death penalty convictions: it is undisputed that the condemned inmate committed a heinous double murder.

"In a most ruthless and cold-blooded manner, Miguel Angel Bacigalupo shot and killed the man who had befriended him -- Orestes Guerrero -- and his brother, Jose Luis Guerrero," prosecutor Joyce Allegro told the jury in her opening statement in Bacigalupo's trial, according to a 1987 media account. "You are about to hear about greed so strong that it outweighed all other considerations." During the three-day trial, jurors heard the story of the events of December 29, 1983 when Baciga lupo walked into Orestes Jewelry on The Alameda in San Jose and shot the Guerrero brothers at point blank range while robbing the store. The trial lasted only three days, and the 11-woman, one-man jury took less than three hours to return a guilty verdict.

The sentencing phase of the trial took place on April 20, 1987. At that time, the death penalty debate was on the front burner in California. Six months earlier, voters removed state supreme court chief justice Rose Bird and two other justices, primarily for their votes reversing death penalty cases. The Bacigalupo jury took less than half a day to recommend a sentence of death. On June 12, 1987 Santa Clara County superior court judge Thomas Hastings formally imposed the death penalty, and Bacigalupo was transferred to a cell on death row at San Quentin State Prison.

Fourteen years later, during the mandatory death penalty conviction appellate process, the state Supreme Court ruled that Bacigalupo's case should be reopened. The unanimous verdict mandated that aspects of the defendant's claim of prosecutorial misconduct be investigated and reconciled. In essence, Bacigalupo's legal team alleged that prosecutors withheld evidence that the murders were connected to a Columbian drug dealer dispute and that Bacigalupo had committed the crimes under duress of death threats against him and his family. Six jurors from the defendant's original trial signed declarations that were submitted to the court which stated that the allegations, if true, could have significantly influenced their decision to impose the death penalty.

If Bacigalupo was in fact acting under duress, he would not have met the legal standards required to permit the prosecutor to ask a jury to impose death, according to Kevin Little, Bryan's co-counsel on the defense team. "If evidence of this sort had come out at the trial and had been fully investigated and developed, then Mr. Bacigalupo would have any number of arguments and issues that he could have raised to say that not only was this not a death penalty case, but it was not even a first degree murder case," he said.

Why would a prosecutor essentially cheat in order to ensure a defendant was put to death instead of, for example, spending most or all of his life in prison? "We know from our experience that careers are made on winning death penalty cases," explained Little. "Indeed, if you just look at this situation, the prosecutor who tried this case is now a judge, and the cop who was investi gating this case has gotten a promotion and is in a more prestigious position," he said. Little may have a point. With endorsements from the prison guard union-funded Crime Victims United, and the group, Citizens for Law and Order, Allegro was elected to the Santa Clara County superior court bench in 1998. Her opponent, David Cena, declined endorsements and funding from special interest groups. "Accepting such money or endorsements politicizes the office of judge and may undermine the independence and neutrality of the court," he said in a campaign statement. But Allegro's tough-on-crime position carried the day.

Allegro has since generated additional controversy in her capacity as a judge. A recent San Jose Mercury-News investigative report on the Santa Clara County criminal justice system, "Tainted Trials-Stolen Justice," (www.mercurynews.com/mld/mercurynews/news/special_packages/stolenjustice) reported that "Allegro is one of several prosecutors-turned-judges who engaged in questionable behavior while trying cases." Asked about one of her guilty verdicts that had been reversed by a higher court, Allegro said she didn't have a specific recollection of the case, but that, in general, "I'm sure I made the decision I believed was proper, and if I was wrong I was wrong.... It was not the first wrong decision I have made and it will not be the last," according to the Mercury-News. In February, Allegro was to tell her side of the story in the Bacigalupo case when she was scheduled to testify, under oath, in Judge Arnason's Martinez courtroom.

Santa Clara County deputy district attorney Tom Farris is currently assigned to represent the government in the Baci galupo court proceedings. Farris said he couldn't talk about any specifics of the case until it was over. He does, however, dispute the claim that Bacigalupo's duress defense would be relevant. "There is no duress defense, as I understand it, for a crime of this sort," he said. Farris does concede that the duress issue could be relevant in the penalty phase, where the jury decides whether to impose death or a lesser sentence, such as life in prison without the possibility of parole. "[Duress] might be evidence that would mitigate the seriousness of the offense and might somehow influence a jury's decision as to whether or not death is appropriate," he said.

Rivas, of the U.S. bishops' conference, said that the bishops emphasize that they are very sympathetic to the jobs of police and prosecutors and their role in protecting citizens. "But the incidents of prosecutors withholding evidence shouldn't be tolerated and, unfortunately, we do hear about it," he said. "We don't want to make it sound like it happens all the time, but it's one of the reasons that we keep saying that the system is run by people and people make mistakes ... every now and then you will have prosecutors, in their zeal, that suppress evidence that could hurt their cases." Kevin Little concurred. "Once a district attorney decides that something is a death case, rightly or wrongly, there are disincentives to disclose facts that might dispute or negate that decision," he said. And in the Bacigalupo case, "this was that type of information."

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