California Death Penalty Once Again Thwarted by Thug Huggers

On Oct. 28, 1980, Albert Greenwood Brown snatched Susan Jordan, 15, raped and strangled her to death with her own shoelace. Brown, who was on parole after raping a 14-year-old girl, then spent the night tormenting the dead girl's parents over the phone, telling them that they would never see their daughter again and where to find the girl's half-nude corpse and belongings. A jury sentenced him to death for that crime.

Of course, it didn't happen. Various judges intervened, the state's meager supply of lethal-injection drugs was about to expire -- and so California's death penalty is on hold until 2011.

There hasn't been an execution in California since January 2006. In February of that year, federal Judge Jeremy Fogel essentially ordered a de facto moratorium on California's three-drug lethal-injection protocol because there was "undue risk" -- not that he knew if it had ever happened -- that a condemned murderer could "suffer excessive pain when he is executed."

In April 2008, the U.S. Supreme Court ruled 7-2 that Kentucky's three-drug lethal-injection protocol is constitutional. Yet Fogel's injunction continued to prevent executions as California officials scrambled to reconfigure the lethal-injection protocol under a superior court judge's order.

No matter which course the state chooses, taxpayer-funded appellate attorneys have managed to block justice -- and on the taxpayer's dime.

Last month, Fogel issued a ruling to allow California's new lethal-injection protocol to proceed. Brown's attorneys argued that under the three-drug protocol, Brown might suffer pain after the initial injection of sodium pentothal. Ohio dealt with that argument by moving to a one-drug injection of that drug. Death penalty opponents complained that Ohio wanted to do drug testing on humans.

Likewise, Brown's attorneys protested that the new protocol was "untested." (Be it noted, there is only one way to test it.)

Fogel gave Brown the option of a single-drug option. His lawyers protested that Brown has given a too "short time frame" to decide. And they prevailed.

On Thursday, I talked to state Supreme Court Chief Justice Ron George. His court also issued a ruling that stayed Brown's execution, this one on a narrow timing issue.

George told me, "I'd say, when the authorities end up procuring the second dose of lethal drug, I don't see why we shouldn't have executions resume."

Why is it, I asked, that Ohio has managed to execute 32 people since 1999, but California has only used capital punishment 13 times since 1977? (My answer would be: the Ninth Circuit Court of Appeals.)

"We have a system that is dysfunctional," George answered. It was George who once famously said, "The leading cause of death on death row in California is old age."

Oddly, at Tuesday night's gubernatorial debate, neither Democrat Attorney General Jerry Brown nor Republican former eBay CEO Meg Whitman seemed particularly exercised about the delays.

Jerry Brown posited that the delays are "too lengthy." He then cited George's past calls to hire more personnel to handle the backlog, "because under the Constitution, these men who are condemned have a right to first-class representation." (Actually, George told me, "The operative word is effective representation, not first-class.")

Criminal Justice Legal Foundation legal director Kent Scheidegger blogged that Brown "seems to have swallowed the defense spin on the issue, hook, line, and sinker."

Whitman promised to be "a tough-on-crime governor." But she seemed most concerned about the money issues, when she said that if the state can't speed up the process, "we are going to be on the brink of building another death row facility."

This isn't an issue of prison construction costs. The anti-death penalty lobby is committed to burning through so much time and taxpayer money that voters cry uncle and give up on the death penalty because they're sick of bankrolling frivolous appeals that successfully thwart capital punishment even though the U.S. and California Supreme Courts have ruled it to be constitutional.

When they've won on the death penalty, they'll start trying to shave time from life-without-parole sentences, which they also consider to be inhumane -- on your dime as well.

The next governor needs to understand these forces and not give in to the siren song of inertia. But I don't think either Jerry Brown or Meg Whitman understands what is at stake.

On October 28, 1980, about 7:30 a.m., 15-year-old Susan Jordan left her home to walk to Arlington High School. She never arrived, and efforts throughout the day to locate her were unsuccessful. That evening, Susan’s mother answered the telephone and a caller asked “Hello, Mrs. Jordan, Susie isn’t home from school yet, is she?” Mrs. Jordan replied that she was not. The voice then declared, “You will never see your daughter again. You can find her body on the corner of Victoria and Gibson.” At Mrs. Jordan’s request, the caller repeated the information, then hung up. Within a half-hour, another call said, “On the corner of Gibson and Victoria, fifth row, you will find a white Caucasian body of a young girl in the orange grove.” While police officers were at the Jordan home later that evening, a third call was received. The caller said, “You can find Sue’s identification in a telephone booth at the Texaco station at Arlington and Indiana.” Officers were sent to the Texaco station, where they discovered two Arlington High School identification cards belonging to Susan and a library pouch from a book. Meanwhile, a police dog found Susan’s body lying face down in the orange grove, with dirt piled up on both sides of her head. The body was nude below the waist except for socks, and Susan’s bra was partially pulled out from under her blouse. Her jeans were located elsewhere in the grove. A shoelace, apparently from one of her shoes, was wrapped tightly around her neck. Homicide investigators found signs of a struggle and indications that the body had been dragged for some distance. About 9:30 p.m., another call was received at Susan’s home, stating “In the tenth row, you’ll find the body.” The Jordans were able to record this call. Two acquaintances of Brown later identified the voice on the taped call as that of Brown. Early the next morning, the police set up roadblocks on the streets near the grove and questioned passersby. Witnesses recalled seeing a black man approaching Susan on the bike trail, standing in the grove as she walked by, or following her. Witnesses also reported seeing a brown Trans Am in the vicinity on that date, which matched the description of Brown’s car. Witnesses also described the man they had seen in the area as wearing jogging clothes, some particularly describing green running shorts and a green and white shirt. The investigation quickly focused on Brown. About a week after the murder, the authorities obtained a search warrant for Brown’s residence. Inside the house, a telephone directory was turned back to the page containing the Jordans’ listing. There were newspaper articles about Susan’s death under Brown’s bed, and two of her missing schoolbooks were found in the den. The library pouch found in the telephone booth had come from one of the books. Green running shorts and a green and white shirt were found in Brown’s work locker, and undershorts found in the locker had semen stains. At trial, three witnesses positively identified Brown as the man they saw near the grove on the day of Susan’s death. Brown presented an alibi defense. His mother testified that Brown was at home with her on the morning of October 28, leaving the house for only about eight minutes to get milk, and then leaving for work at 8:14 a.m. The jury convicted Brown of first degree murder and of the special circumstance of murder in the course of rape. At the penalty phase, the prosecution presented evidence that Brown had previously raped a fourteen-year-old girl in her home as she prepared to leave for school. The defense presented psychiatric and background evidence suggesting that Brown suffered severe emotional problems, including sexual maladjustment and dysfunction. Brown’s defense psychiatrist opined that Brown killed Susan out of shame for raping her, and that the phone calls indicated shame and a desire to be caught. The psychiatrist opined that Brown was not violent by nature, but was only a threat to women, and that he would not present a problem if sentenced to life in prison. Several of Brown’s family members testified on his behalf. Brown also took the stand, expressed remorse for the prior rape, and asked the jury for mercy. After deliberating for less than three hours, the jury returned a death verdict. Brown had been paroled from state prison just four months earlier after being convicted of a 1977 rape of a 14-year-old girl. The victim in that case, Kelly, was getting ready for school when Brown threw a coat over her head and dragged her to her mother's bedroom, choking her with his arm. He told her, "If you don't do what I say, I'll kill you." She told him that if he hurt her, God would get him, which only made him squeeze her neck tighter. While he checked to make sure no one else was in the house, Kelly managed to get away and ran for the door, but he caught her and told her not to try that again. She again told him God was going to get him and in response he choked her until she passed out and he dropped her to the floor. He took off her shoes and pants and put her on her back on her mother's bed. He again told her he would kill her if she did not do what he wanted. After raping Kelly, he told her to count to 200 and not to move. With the coat still over her head, she did what she was told, then got dressed and went to a neighbor's house, asking them to call her mother and the police. Brown was spotted and arrested only moments later. He later told a psychiatrist that he did not intend to rape anyone when he broke into the house but when he realized Kelly was there and alone, he thought, "Why should I let this grand opportunity go to waste?"

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