ARTICLES
May 2006 ARTICLES
Contents © 2006
by Jim Holman.
All rights reserved.
The Hardest Decision A Judge Could Make
Catholic, Republican "Law and Order" Jurist Questions Death Penalty
BY BARTHOLOMEW JAMES
In March 2006, the independent and non-partisan California Field Poll released the results of its latest survey on how Californians feel about the death penalty. "By a two-to-one margin (63 percent to 32 percent) Californians continue to favor the death penalty as a punishment for serious crimes," pollsters Mark DiCamillo and Mervin Field announced. That ratio has remained consistent since 2000 but is lower than death penalty support was two and three decades ago. The poll was conducted in late February, on the heels of the December 2005 execution of Stanley Tookie Williams and the January execution of 76-year-old Clarence Ray Allen. The poll asked Californians how they felt about the postponement of the execution of Michael Morales, originally scheduled for February 21 but delayed indefinitely by order of a federal court judge in San Jose.
The Morales execution was stayed because new research indicates that the lethal injection execution process, if improperly administered, may cause excruciating pain and may therefore be unconstitutional. Court hearings in May are expected to resolve the issue. Field asked poll respondents if they approved of the judge's order delaying the execution of Morales to avoid the possibility of the death row inmate experiencing significant pain during the execution process. Fifty-nine percent disapproved of the delay, 28 percent approved, and 13 percent had no opinion. Field asked if the state should have gone ahead with the Morales execution despite the judge's order. Forty-six percent said the state should have gone through with the execution, 41 percent said it was right to postpone it, and 13 percent had no opinion. An interesting question that the Field pollsters might have asked about the Morales case, but didn't, is this:
Charles McGrath, the original trial judge who sentenced Morales to death, now says that new evidence in the case does not support the death sentence that he imposed. McGrath has asked Governor Schwarzenegger to resentence Morales to life in prison without the possibility of parole and has said that executing Morales would constitute a "grievous and freakish" injustice. Schwarzenegger has denied McGrath's request. In light of this new information, do you support the execution of Michael Morales?
In fact, the theoretical polling question might have offered additional context by providing information on the background of McGrath. Appointed to the Ventura County bench in 1974 by Governor Ronald Reagan, McGrath was a lifelong law-and-order Republican and death penalty proponent. Known as a strict jurist throughout his career, McGrath refused to allow plea bargains in his courtroom until a higher court ruling forced him to change the policy. "I thought the defendants, if they were willing to plead guilty, ought to plead straight-up and let the judge decide what he thought was an appropriate sentence before the plea," he said. In a 1980 interview for a legal publication, one Ventura County attorney called McGrath "two steps to the right of Justice William Clark of the California Supreme Court." Clark was known as an acerbic conservative, and McGrath laughs when reminded of the comparison but concedes he can't contest it. He said he attributes his judicial philosophy to his conservative, Irish-Catholic background, but won' t elaborate beyond that.
Although he formally retired as a judge more than eight years ago, the 68-year-old jurist still puts in 40 hours a week for about ten months each year helping out with caseload overflow at Ventura County's main courthouse. McGrath attributes his work-recreation imbalance to a sense of civic duty and a lack of recreational opportunities. "I'm not a golfer, and I'm not a sailor," he said. "I have horses, but you can only do so much riding before the horses get sick of you." His family's deep roots in the community also seem to motivate him to extend indefinitely his 32 years of public service -- less than 10 miles south of the courthouse, land once owned by his grandfather is now McGrath State Beach, one of the best bird watching locales in the state. On Sundays, he attends Mass at Santa Clara parish in Oxnard.
Nearly 23 years ago, McGrath sentenced Michael Morales to death for the 1981 murder of 17-year-old Terri Winchell. In late January, Morales' attorneys submitted a clemency petition to Governor Schwarzenegger in which they requested that Morales' sentence be modified to life in prison without the possibility of parole. Included in the petition was a letter from McGrath to the governor endorsing the sentence modification and detailing why the original trial judge had changed his mind. McGrath explained to Schwarzenegger that, in imposing the death penalty, he had relied heavily on the testimony of Bruce Samuelson, a key prosecution witness. "I found Mr. Samuelson to be credible and believable," McGrath wrote. "New information has emerged to show the evidence upon which I relied in sentencing Mr. Morales to death -- Mr. Samuelson's testimony -- is false."
Samuelson was a career criminal and jailhouse informant who claimed that Morales confessed explicit details about the murder to him while the two were housed in the San Joaquin County jail. Samuelson was facing six felony charges stemming from a string of crimes that included vehicle theft, receiving stolen property, and forgery. In exchange for his testimony against Morales, the San Joaquin County district attorney's office dismissed four of the six charges against Samuelson. Samuelson's sophistication and apparent experience with the role of compensated informant was graphically expressed in a letter he wrote to the prosecutor several weeks before the start of the Morales trial. He asserted that he would provide more than just his testimony. Samuelson promised his testimony would "guarantee a murder 1 conviction w/special circumstances." The special circumstances of torture and lying-in-wait in the commission of the murder were required to make Morales eligible for the death penalty.
"I believe that Mr. Samuelson's testimony was instrumental in convincing the jury, as it did me, that death was the only appropriate punishment in this case," McGrath wrote in his letter to the governor. McGrath went on to explain that new evidence discovered by the attorney general's office in 1993 called into question Samuelson's damning testimony. When asked years later by the attorney general's office how he was able to obtain such a detailed confession from Morales in a crowded cellblock widely known to hold informants, Samuelson replied that he and Morales had conversed in Spanish whenever they talked about the case. Morales, however, grew up in an English-speaking household and didn't know Spanish. The judge said that this information would have rendered Samuelson's testimony, and the prosecution's case, insufficient to support the death sentence. McGrath explained that Samuelson's statements were critical in tipping the balance of aggravating and mitigating circumstances in favor of the death penalty, and that he had specifically instructed the jury "to consider Mr. Samuelson's testimony in choosing the appropriate sentence and that Mr. Samuelson's testimony alone could be used to outweigh all mitigating evidence and compel a death sentence."
McGrath asked Schwarzenegger, a fellow Catholic and a man he helped send to the governor's office, to amend the sentence and stop the execution. "If in the course of performing my judicial duty, I had been permitted to consider evidence of Mr. Samuelsonfalsehoods that was belatedly discovered by the Attorney General and Mr. Morales' attorneys, I would not have let the death sentence stand; and the awesome decision whether to spare his life would not be before you at this time," McGrath wrote. "Under such circumstances, executing Mr. Morales would frustrate the design of our sentencing laws, and would constitute a grievous and freakish injustice." On February 17, four days before Morales was initially scheduled to die, Schwarzenegger denied the clemency request.
McGrath appears a reserved man not prone to exaggerated introspection. He is reluctant to say much more about his involvement in the Morales case or elaborate further on his clemency letter or its outcome. "The letter kind of speaks for itself, I really don't want to comment about this," he said. Since he is still an active judge, McGrath declines to say outright whether he still supports capital punishment but does confess that his once-stringent beliefs have evolved. "I'm a little dubious about the efficacy of the death penalty," he explained. But it appears that his dubiousness towards the ultimate punishment actually started several years ago. When he retired in 1977, while reflecting back on his career, McGrath told a local reporter that sentencing someone to death was the hardest decision a judge could make. He expressed doubts about the effectiveness and practicality of the death penalty. "The appeals are interminable. We could use our judicial resources in other ways. Nobody really argues any more that it's a deterrent," he said. "I am beginning to feel it's not worth all the trouble."
McGrath's more high-profile change of mind about the death penalty is part of a nationwide trend among Catholics. In November 2004 the United States Conference of Catholic Bishops commissioned the polling and market research company Zogby International to study Catholic attitudes on the death penalty. "We found that support for the use of the death penalty among American Catholics has plunged in the past few years," Zogby International President John Zogby said at the time the results were released. The poll revealed a general trend away from support for the death penalty by Catholics. The results showed that less than 48 percent of adult Catholics support the use of the death penalty, while 47 percent oppose. In the past, Catholic support for capital punishment has run as high as 68 percent. In a supplemental survey conducted in March 2005 the results showed that almost a third of Catholics who were once in favor of the use of the death penalty now oppose it.
The poll results surprised the U.S. bishops and their policy advisor on criminal justice issues, Andrew Rivas. "We were anticipating that the numbers were going to be closer [to the general population poll results]," Rivas said. In fact, the subsequent March survey was commissioned because the initial results were so unexpected that the bishops assumed there had been a mistake. The second poll came out virtually identical to the first. "So we're very comfortable with those numbers," said Rivas. I asked Rivas if the questionings of an influential Catholic like McGrath were significant. "I think so, and I always tout Cardinal McCarrick in that regard," he said. Rivas explained that McCarrick, the archbishop of Washington, was pro-death penalty and later converted. "I am one of those Catholics who has reflected on and reconsidered my support for the use of the death penalty," McCarrick said in a statement issued by the U.S. Bishop' s last year. "I am part of a family with a lot of policemen. Support for the death penalty was part of growing up. However, I am now a teacher and pastor in a Church that puts the defense of human life and dignity at the center of its mission."
Rivas explained that the dramatic reversals by leaders like McGrath and McCarrick set an example that makes an impression on other Catholics. "I think that gives people a little bit more incentive and makes them feel more comfortable in at least talking about it," he said. "And then once they get to talking about it, then we start changing their minds."