In the shadow of death

My friend Andre Burton lives on death row at San Quentin. It is not a nice place to be.

This February, Andre asked to be moved from the cell he was in to one closer to the tier showers. He likes being able to be one of the first to shower, and he hoped the area would be quieter than the one he was in. He wrote about the experience in a letter to me (reprinted as he wrote it):

The inmate who was in this cell prior to my being re-housed in it was a “J cat"—an inmate here on the row who has mental and psychologically disturbed issues. The man lived in this cell like a helpless animal. He lived in this cell for four months. He never flushed the toilet, never threw out his trash, no matter what it was—daily lunches given us here. For four months he left what he did not eat laying around on the floor everywhere in the cell. He never changed his underclothing, never cleaned the cell, but just lived like an uncared for animal, mentally sick and disturbed.

Andre said he spent the next few days scrubbing the cell with the meager cleaning supplies he had. He found the task especially challenging because the cell was coated with the pepper spray used to “extract” the former prisoner from the cell. For days Andre’s eyes and nose and skin burned. He also said he had to work to kill off the roaches that had infested the cell and crawled over the floor where he slept. (Many inmates sleep on the floor and use the concrete bed areas as desks, since no other surface is available.)

Andre and I have been writing each other and I have been visiting him regularly for one year now. I received his name and address last April from The Death Row Support Project. I had first considered doing prison work when I was a student at San Francisco Theological Seminary and drove by San Quentin each week on my way to campus.

Although I was already visiting women in federal prison as a visitor with Prisoner Visitation and Support, I felt drawn to reach out to someone on death row. I could not have anticipated meeting someone like Andre. He is a songwriter and had this to say about his gift:

I love music; it’s so much of who I am. You have yet to hear the love songs I write and sing. I sing all the time to my soul, here in my own space, but only loud enough for me to enjoy. I have music ringing in my spirits almost every night, and more songs trying to come out. I know ‘cause they keep coming back.

Sometimes his letters are painful to read, detailing the horrors and challenges of his environment and the suffering that surrounds him. Often they are compelling, helping me to know and understand the perspective of someone whose life experience is radically different from my own. Unfailingly, they express a faith and hope that continue to astound me. In many ways Andre’s life reads like one very long bad dream, yet he is someone of remarkable spirit. Last July, he wrote me the following:

Amy, you ask me what’s going on here? It’s really nothing going on here, beyond existing around so many lost souls. The situation here is chaotic, only because so many are miserable. Aside from that, the system under which we exist here is set up to keep inmates at odds and distracted pending their court of appeals. And the way inmates be acting around here, one does not know who’s who or who can be trusted. I wouldn’t wish this kind of existing on no human soul. Please don’t misunderstand. There are some good people here too. However, evil seem to be the thing most here are accustom to, probably because they stand condemned internally. Broken. The environment itself is strange, and you hit it on the nose when you stated, “It must be a very unforgiving place.” I mention to you already, I’ve been a victim since I’ve been here. Not because I am wrong in my walk here, but more because I have the spirit of life in my soul…

Andre Burton has lived on death row all of his adult life, from the age of 20 to the age of 43. When he was 19, he was convicted of shooting to death the mother of a convenience store clerk in a robbery. He claims to have been wrongfully convicted. His current defense lawyers assert that he was denied a defense during the guilt phase of his initial trial.

In fact, in October of 1997 the California Supreme Court did something it rarely does: It issued a “show cause” order challenging the attorney general’s office to show cause why Andre’s murder conviction and death sentence should not be overturned. The grounds stated by the order are that he “was denied the right to present a defense at the guilt phase of trial.” His attorney failed him, in other words.

The required evidentiary hearing was held in 2003, followed by an extended exchange of legal briefs between the state attorney general’s office and his defense lawyers, which was completed in October 2005. Now Andre waits. He has no idea when the Supreme Court will reach a decision regarding his appeal, other than sometime this year.

If Andre Burton’s appeal is upheld, he will join a surprisingly large group of death row prisoners who have been exonerated after conviction. In a Nov. 9, 1998, U.S. News and World Report article titled “The Wrong Men on Death Row,” author Joseph Shapiro observed that, for every seven executions in the United States, one death row prisoner had been found innocent.

Most of the convictions were overturned because of bad lawyering on the part of defense attorneys. In fact, in 1997 the American Bar Association, representing all of the nation’s attorneys, went so far as to call for a moratorium on the death penalty because of “the prevalence of bad lawyering and mistaken convictions.”

Studies have shown that poor defendants, those at the mercy of court-appointed attorneys whose best claim to competence may be how quickly they move capital cases through the courts, are particularly vulnerable to being wrongfully convicted.

Andre Burton is a good example of this. He grew up in the ghettos of Los Angeles—in Compton and Long Beach. He had no money to pay for an attorney when he was accused of robbery and murder at the age of 19.

The most dramatic statement yet made about the inherent injustice of the death penalty as it is now applied was made in 2000, in Illinois. That’s when the state’s governor, George Ryan, a pro-death-penalty Republican, granted clemency to every inmate on Illinois’ death row. He did so because, he said, he had become convinced that it was highly likely, even probable, that some of the prisoners were innocent and he was unwilling to allow an innocent person to be put to death.

Ryan’s change of heart on the death penalty had come about as the result of work by the Center on Wrongful Convictions, a group of professors and students at Northwestern University’s School of Law, in Chicago. The group formed in November 1998, just a week after Shapiro’s article appeared, when the law school hosted a national conference on wrongful convictions and the death penalty. There, 28 men whose convictions for murder had been overturned appeared on stage to tell their stories. The event garnered national media attention.

By 2000, the center had revealed so many flaws in Illinois’ capital-punishment process that Ryan decided to make his historic move.

The Center on Wrongful Convictions is one of several groups affiliated with the national Innocence Project, which is working to find innocent prisoners throughout the country. The project’s most powerful tool is DNA analysis, which it has used on many occasions to prove that prisoners did not commit the crimes of which they were convicted. This effort, more than any other, has cast doubt on the reliability of the death penalty process.

Bad lawyering is not the only cause of wrongful convictions. As Shapiro’s U.S. News article notes, one-third of wrongful convictions are a result of perjured testimony—"often from jailhouse snitches claiming to have heard a defendant’s prison confession.”

Just this year, in February, a Superior Court judge in Ventura County, Charles McGrath, petitioned Governor Schwarzenegger to commute—to life imprisonment without the possibility of parole—the death sentence he himself had given a death row inmate named Michael Morales. McGrath had been made newly aware that testimony presented at trial by a jailhouse informant who claimed to have heard Morales bragging of his murder of Terri Winchell in 1981 was false. Schwarzenegger refused to honor McGrath’s request.

Even former “mad-dog” prosecutor Donald Heller, the author of California’s 1977 death penalty law, began to have his doubts about it after a few years as a defense lawyer. As reported in the Sacramento News & Review, Heller recently said: “First of all, it discriminates against the poor…. If you can hire a dream team, your chances improve. You don’t see too many rich people on death row.”

Death Penalty Focus, an organization dedicated to the abolition of capital punishment, asserts that numerous aspects of capital cases involve a heightened risk of error that can lead to wrongful convictions. For instance, the death penalty has become a politicized issue that is commonly used in campaigns for elected judgeships and district attorney positions. Such political pressure can motivate judges and prosecutors to seek to sentence defendants to death in order to appear “tough on crime.”

Similar public pressure on law enforcement officials to resolve homicides quickly—especially in highly emotional cases—increases the likelihood of misconduct by investigators and prosecutors. The frequent lack of eyewitnesses in murder cases can force prosecutors to use less reliable sources for evidence, such as jailhouse snitches, accomplices looking for reduced sentences, and coerced confessions from defendants. And, because of scarce resources, defense lawyers must often decide whether it’s better to focus on the initial defense or spend more time and energy preparing for the sentencing phase. Lack of money to pay for investigations also contributes to weak defenses.

Here in California, we’ve recently stepped up the pace of executions. We executed two men in two months this past December and January and came within a hair’s breadth of executing a third—Morales—in February. Many more of the condemned, having lived on the row for 20 or more years, are running out of appeals.

With by far the largest death row population of any state—649 men and women—the possibility that California might execute an innocent person is high.

The most recent Death Penalty Information Center statistics (as of Feb. 23) show that of the 123 persons wrongfully convicted and released from death rows in the United States since 1973, three were residing on California’s death row. DPIC criteria are quite strict: For a case to qualify as a wrongful conviction, the defendant cannot have been convicted on any other charge related to the charge of murder.

The criteria used by Death Penalty Focus are somewhat less strict: If a defendant’s murder conviction was why he or she received the death penalty, and that conviction was overturned, DPF counts that as a wrongful conviction. By those criteria, the number of those wrongfully convicted and released from California’s death row rises to six.

Recognizing that a problem existed, the California Senate in 2004 created the California Commission on the Fair Administration of Justice. The commission is mandated to study the causes and prevalence of wrongful convictions and wrongful executions in California; to examine the safeguards needed to improve the criminal-justice system in California; and to make recommendations and proposals designed to ensure that the application and administration of criminal justice in California is just, fair and accurate. It has a deadline of Dec. 31, 2007, to report its findings and make recommendations to the governor and the Legislature.

One group that has contributed a report to the commission is the Santa Clara University Law School. In it, Ellen Kreitzberg, professor of law at Santa Clara University and director of the Death Penalty College, states: “This study forces the people in California to confront the unfairness of how the death penalty is applied in this state. The decision of who will live and who will die in California turns on arbitrary and unlawful factors such as the race and ethnicity of the murder victim, or the location where the murder was committed.”

Her words echo those of U.S. Supreme Court Justice William J. Brennan, Jr., from 1994: “Perhaps the bleakest fact of all is that the death penalty is imposed not only in a freakish and discriminatory manner, but also in some cases upon defendants who are actually innocent.”

An effort to establish a moratorium on executions in California until the commission had time to complete its work, Assembly Bill 1121, passed the Assembly’s Public Safety Committee on January 10 but was tabled in the Appropriations Committee a few weeks later. The stall no doubt was meant to spare those legislators who might have voted for it the risk of being viewed as anti-death penalty in an election year.

Andre Burton is still living in the valley of the shadow of death. For those prisoners like him who have not already been lost to untreated mental illness or the black pit of despair, the 23rd Psalm contains a deeply relevant prayer.

Maybe Andre will be freed. Yet life on death row assures that the return to freedom of those few found to have been wrongly convicted will be far from easy.

Condemned prisoners are not allowed to participate in educational or vocational programs available to “mainline” prisoners, despite the fact that many prisoners spend 20 to 30 years on the row. If freed, Andre will return to life on the outside having spent the whole of his adult life in a place where he had no opportunity to develop job skills or work experience, or even to complete his high school graduation requirements. He will walk into a society that shuns him because of where he’s been and whose compensation and social services for those wrongfully convicted are very limited.

I take my hope for Andre from his own words. They are words we might all wish to claim as our own:

They’ll never count me among the broken, Amy. There exists too much love in me that I use to keep my head up when others would hope to see it down. My heart is like that of a child, but in my mind there is a man whose life journey is a story of hope.