Suspended Sentence

California's death penalty is an impotent sentence.
The system is broken.
Few will take responsibility for fixing it.
And the future is uncertain at best.

By STEVEN MAYER and FRED LUDWIG
Californian staff writers
e-mail: smayer@bakersfield.com
e-mail: fludwig@bakersfield.com

Paul Stephen / Special to The Californian After checking a pro-death penalty Web site, Bob Levoy marks off the name of an inmate executed after 12 years on Texas's Death Row. Levoy's sister was kidnapped and murdered in 1981. The execution of her killer, Ward Francis Weaver Jr., is on hold due to the appeals process.

Bob Levoy has a book in his living room filled with the names of men, each with one thing in common. Levoy wants to see them all dead.

Cold, lifeless, extinct. Gone forever from the world -- if not from the stubborn reach of human memory.

Whenever a Death Row prisoner is executed in the United States -- anywhere in the United States -- Levoy retrieves his book and draws a line through the killer's name. One more gone. One more erased. Good riddance.

It takes work keeping up with capital cases across the country, but the melancholy ritual brings Levoy a morsel of satisfaction, if only a crumb.

It's not hard to understand why. More than two decades after the 1981 kidnap, rape and murder of his then 23-year-old sister, Bob Levoy remains angry and tormented by the knowledge that Ward Francis Weaver Jr., Barbara Levoy's killer, still lives.

Weaver was convicted and sentenced to death in Kern County in 1985. Now, some 16 years later, Levoy wants desperately to draw a line through Weaver's name.

"He should've been dead a long time ago," Levoy said recently from his home in Keyser, W.Va. "I'd be happy to come out and pull the switch myself."

Hanged by the neck, electrocuted, choked by poisonous gases, the more painful the exit, the better, Levoy says without hesitation.

Still, he will settle for whatever gets the job done, including the painless magic of lethal injection now used in California, a method of execution Levoy characterizes as "too humane ... like putting to sleep a pet dog."

Despite his fantasy of assuming the role of Weaver's executioner, Levoy knows the truth: His sister's murderer is more likely to die in prison at a ripe old age than to ever see the inside of California's death chamber.

It's a fact. Weaver, 57, won't be executed any time soon. His conviction and subsequent death sentence were finally affirmed in a ruling handed down by the California Supreme Court Aug. 21. But the court's ruling is only one step along a lengthy legal journey that may never reach its destination.

Executions are rare

Paul Stephen / Special to The Californian Bob Levoy keeps track of news about the appeals of his sister's killer, Ward Francis Weaver Jr.

Weaver is one of more than 600 inmates awaiting execution on California's Death Row, the largest in the nation. A death sentence in California is just the beginning of a long appeals process that lasts years, even decades. It's a system rife with potential delays from start to finish.

Few are executed in the Golden State -- just nine since the reinstatement of California's death penalty 24 years ago. By comparison, Texas has put to death more than 250 prisoners since the 1970s.

The delays often begin right after the death sentence, at the beginning of the appeals process. At this critical juncture, a shortage of qualified attorneys willing to take these difficult cases often prevents appeals from getting off the ground.

At the other end of the process, judges on a high-ranking federal court block many an execution just as the case winds toward the finish line, death penalty advocates contend.

In between are plenty of places where the process can grind to a halt.

"The system is broken," said Gary M. Sirbu, an Oakland attorney who is representing Kern County convicted murderer Richard Galvan Montiel. Montiel was sentenced to death in 1979 for slashing the throat of a 78-year-old man during a robbery. He has has been imprisoned on Death Row for some 22 years.

"Any prosecutor will tell you," Sirbu said. "There is a de facto moratorium on the death penalty."

The court backlog has become a problem in its own right, as the whole system essentially chokes on the backup and judges juggle several cases, trying to keep pace.

After nearly two decades of problems, the state took steps a few years ago to fix the flaws in its portion of the appeals process. But so far, despite millions in new state spending, the backlog remains as large as ever.

Kern courts, for example, have sentenced 28 defendants to death since the reinstatement of California's death penalty in 1977. Two committed suicide in prison and several had their sentences reduced on appeal.

None have been executed.

Efficient history

Dan Ocampo / The Californian Kern County District Attorney Ed Jagels stands in a storage room filled with death penalty files. Since California reinstated the death penalty in 1977, Kern County has sent 28 men to Death Row. None have been executed.

In decades past, California's system of capital punishment was much more efficient -- some say too efficient.

About 500 men and four women were executed in California between 1893 and 1967. They did not have the system of state and federal appeals available today.

The case of Richard Arlen Lindsey -- the last Kern defendant to be executed by the state -- was extraordinary in the speed at which the case moved from arrest to execution.

Lindsey was convicted of kidnapping, raping and murdering a 6-year-old girl near Lost Hills in 1961. He was sentenced to death just 18 days after the murder -- an unheard of time frame in today's environment. Lindsey was executed less than 10 months after his sentence was handed down.

California executions came to a halt with a 1968 U.S. Supreme Court ruling that overturned large numbers of death sentences around the country but did not scrap the death penalty itself as a sentence, said Criminal Justice Legal Foundation President Michael Rushford.

Then the California Supreme Court in 1972 ruled the penalty was cruel and unusual punishment, allowing no new death sentences, Rushford said.

State lawmakers revived capital punishment through legislation in 1977. One year later, California voters approved Proposition 7, which expanded the circumstances under which defendants could become eligible for the death penalty.

Executions in California resumed in 1992 with the gas chamber death of Robert Alton Harris. The San Diego County man was convicted in 1979 for the abduction and shooting deaths of two teen-age boys.

"I think the Harris execution will be followed by a significant number of other executions," Kern County District Attorney Ed Jagels told The Californian in April 1992.

But it was not to be.

Since then, the state has carried out an average of one execution a year, even as the population of Death Row has grown by an average of more than 27 per year.

If the recent rate of sentencing and executions continues, the population of California's Death Row could surpass 1,000 by the year 2016.

Southern-style justice

Felix Adamo / The Californian Edith Ballew, ex-wife of murderer Steven David Catlin, says of the process, "Too bad we're not in Texas; they'd get it done a lot sooner."

"Too bad we're not in Texas; they'd get it done a lot sooner," said Edith Ballew, the third wife of convicted paraquat murderer Steven David Catlin.

Formerly of Bakersfield, Catlin has lived on San Quentin's Death Row since he was sentenced in 1990 for the poisoning deaths of his fourth wife, Joyce Catlin, in 1976, and his adoptive mother, Martha Catlin, in 1984. He was sentenced to life in prison by a Monterey County jury in 1986 for the murder of his fifth wife, Glenna Kaye Catlin.

Each of the victims died from ingesting paraquat, a highly toxic weed killer that, until 1984, was sold in an odorless and tasteless form.

"It's a horrible way to die," Ballew said. "Your lungs fill with fluid and you slowly suffocate to death."

Ballew was instrumental in getting police to focus on her ex-husband as a murder suspect. Now she's happy Catlin is in a place where he can't hurt anyone else.

"He's an evil man," she said. "To watch someone suffer and die over a three-week period -- that takes a cold person, someone who is dead on the inside.

"Will I rejoice when he is executed? No," she said. "But I think he deserves it. He should die for what he did."

In contrast to California's slower approach, Texas led the nation with 35 executions in 1999, U.S. Justice Department data shows. That year, 98 Death Row inmates were executed across the nation, the most since 1951.

The executions were carried out after prisoners spent an average 11 years and 11 months on Death Row. California's nine executions have followed an average 15-year wait, but many will take much longer, if they get there at all.

Approximately 150 convicted murderers have already been on "the Row" for between 15 and 20 years. Some 40 have lived there for more than two decades.

No need to rush death

Catlin

Despite the sense of urgency some family members feel, others believe it's dangerous to speed up a system whose ultimate aim is the state-mandated death of a human being.

Given the irreversible nature of the penalty, the extra time is worth it, defense attorneys argue. Close scrutiny of cases, they say, prevents wrongful executions.

"What's the hurry?" said Bakersfield defense attorney Stan Simrin. "It's not like these guys are at a ballpark or having fun. They're in prison with very, very little in the way of anything that would make a person happy. They're being punished."

Appellate defense attorney Sirbu agreed. He said there are too many mistakes by attorneys at the verdict and penalty phases of capital trials to assume death is always justified.

And he criticized the arbitrary nature of capital punishment in California, where the policies of a local district attorney can be more significant in determining whether death is sought than the intrinsic nature of the crime itself.

"A lot depends on what county you're in," Sirbu said.

Statistics appear to bear him out.

Kern County has 23 inmates on Death Row in various stages of the appeals process. That's one Kern inmate per 28,600 California residents. The state overall has one inmate per 56,300 residents, meaning Kern has twice as many Death Row inmates per capita as does the state as a whole.

Kern prosecutors are unapologetic. They say they aggressively seek the death penalty when it is warranted, and are bolstered by conservative tough-on-crime judges and juries.

Some critics contend race may also play a role in whether the death penalty is sought and won in murder cases.

A Cal State Bakersfield study that looked at homicides during a 10-year period beginning in 1990 showed prosecutors more often sought the death penalty when murder victims were white, even though the majority of victims were minorities.

Other studies have shown similar patterns nationwide.

But Jagels said courts have rejected such studies. They mean nothing without a review of the circumstances surrounding the crimes, he said.

A system in quiet crisis

California typically spends $1 million per capital case between the trial and the state portion of the appeal, far more than many other states, said California Supreme Court Chief Justice Ronald George.

Add federal court costs and 30 years on Death Row, and taxpayers are saddled with a bill of more than $2 million per prisoner.

Long and costly capital trials typically generate 10,000-page case files, creating a great deal of reading for appellate judges, George said.

These lengthy and information-heavy trials can be a contributing factor to the plodding pace of appeals, but delays also can result from bureaucratic errors, administrative snafus and human frailties that have nothing to do with protecting defendants' rights.

An American Bar Association report in the early 1990s asserted that excessive delays harm the system, possibly undermining any potential deterrent effect the death penalty may have.

On the other hand, some delay is good, the Bar Association report task force said. A deliberate process promotes fairness and, ultimately, justice.

But how much time has to pass before the appeals system is seen to be excessive?

The "optimal" time, from sentence to execution, is six or seven years, assuming the sentence is upheld "at every stage of state, federal, and Supreme Court review," the report said.

But the task force resisted the idea of imposing deadlines on appellate judges, worrying that such measures could tie the hands of justice in the interest of expediency.

"Trust must be placed in the good faith and ability of state, federal and Supreme Court judges and justices to review these cases diligently, at the same time recognizing the need for them to manage their own caseloads and dockets, considering the circumstances of their jurisdiction," the task force concluded.

Impotent sentence

Even executions that are delayed for years can provide justice, said Kern County Deputy District Attorney John Somers, a capital case veteran. But if the death penalty has any ability to deter crimes, that deterrent value drops or perhaps even vanishes after 15 or 20 years, Somers said.

"A lot of criminals perceive it to be something of a joke," Somers said of the seemingly empty threat of capital punishment.

The delays at the appellate level do not enter into prosecutors' decisions on whether to seek the death penalty in individual cases, Somers said. Nevertheless, lengthy and repeated delays may raise practical barriers to the fair and timely administration of justice.

When there is a reversal late in the process, for example, prosecutors who want to retry the case may have a tough time tracking down witnesses and compiling old evidence.

The whole thing just looks bad, George said. "It's a bad reflection of the system, and public confidence in the system."

In fact, public confidence in capital punishment may be waning.

Media coverage of last year's decision by Illinois Gov. George Ryan, a death penalty supporter, to issue a moratorium on executions in his state may be affecting public opinion. National polls, including a 2001 Gallup poll, found support for capital punishment has dropped to 65 percent, 15 percentage points below 1994 levels. However, support did edge up slightly after Sept. 11.

In announcing the moratorium in January 2000, Gov. Ryan expressed deep concerns about his state's "shameful record of convicting innocent people and putting them on Death Row."

He cited 13 cases in which defendants were wrongfully convicted of capital murder since the death penalty was reinstated in Illinois in 1977.

"I cannot support a system, which, in its administration, has proven to be so fraught with error and has come so close to the ultimate nightmare, the state's taking of innocent life," he said.

Even the rate of executions may be declining as a result of such institutional uncertainty.

The Death Penalty Information Center's 2001 year-end report found a 22 percent decline in the number of executions this year -- 66 nationwide in 2001 compared to 85 in 2000. It's the first time since the death penalty was reinstated in the 1970s that the number of executions has declined for two consecutive years, the report stated.

Even traditional proponents of the death penalty are questioning the integrity of the system.

"After 20 years on (the) high court, I have to acknowledge that serious questions are being raised about whether the death penalty is being fairly administered in this country," U.S. Supreme Court Justice Sandra Day O'Connor said in July. "If statistics are any indication, the system may well be allowing some innocent defendants to be executed."

And in April, Justice Ruth Bader Ginsburg said underqualified attorneys may be the deciding factor in whether murder defendants get death or life in prison.

"I have yet to see a death case among the dozens coming to the Supreme Court ... in which the defendant was well represented at trial," Ginsburg said. "People who are well represented at trial do not get the death penalty."

Such arguments can seem academic and even surreal to family members who sat through murder trials and heard the often gruesome and bloody details of the crimes committed against their loved ones.

For many of them, the unfairness of capital punishment -- at least in California -- is anchored in the state's virtual inability to carry out the sentence.

For victims' families anxious for closure, the delays can exact a terrible toll.

A life sentence of heartache

Mike Jenner / The Californian Ruth McCarty of Swansea, Ill., holds a photo of her daughter, Barbara Levoy, who was kidnapped, raped and murdered in 1981 by Ward Francis Weaver Jr. A Kern County jury sentenced Weaver to death 16 years ago. But the appeals process has put Weaver's execution on hold.

"I don't think it's right that he's breathing ... and my daughter is six feet under," Ruth McCarty, Barbara Levoy's mother, said of her daughter's convicted killer.

"I couldn't even put on her tombstone what day she died."

It was Feb. 5, 1981, when long-distance truck driver Ward Francis Weaver Jr. came across a broken-down car on Highway 58, about one mile east of Tehachapi.

According to court records, Barbara Levoy and her boyfriend, 18-year-old Air Force cadet Robert Don Radford, were headed for Colorado after visiting Radford's grandmother at her home near Fresno.

When their car broke down and a truck driver stopped, they may have thought a good Samaritan had come to their rescue.

Weaver had other ideas.

He later admitted to bashing the young cadet in the head with a metal bar because he wanted to have sex with Levoy. An autopsy revealed 11 wounds to Radford's skull.

Weaver then threatened Levoy with a knife and forced her to accompany him in his truck. He raped her several times before finally strangling her and burying her body in the back yard of his Oroville home.

It's a horror story that has left an entire family wounded and broken.

As McCarty showed off an aging photograph of a pretty young woman smiling into the camera, she recalled details only a mother would know, including Levoy's birth weight (4 pounds, 15 ounces) and her daughter's youthful and independent spirit.

"This is the way she looked when she was murdered," McCarty said, her voice breaking.

"I think of her as my little angel. When I drive, I feel like my angel is right beside me."

Today, the Illinois resident thinks of her daughter often but only occasionally thinks about Weaver. She sometimes has nightmares about him, although the bad dreams have become fewer with passing years.

During monthly trips to Levoy's grave, McCarty is sometimes struck by the fact that Weaver is still alive 20 years after the murder. She does not understand why.

"It will never come to an end until they do something to him," McCarty said.

At the time of his trial, some investigators said Weaver may be responsible for as many as two dozen hitchhiker homicides.

A killer's odyssey

Weaver is now on his fourth appellate lawyer, a scenario that likely contributed to the apparent snail's pace of his state appeal, said state Deputy Attorney General Jane Kirkland. Weaver's first appellate attorney was appointed in June 1985, and yet the full case wasn't submitted to the California Supreme Court until May 31 of this year.

His massive petition includes claims of poor representation by his lawyers at trial, a common appellate issue, Kirkland said. But one of Weaver's trial attorneys died about three years ago, making it difficult for Kirkland to investigate the claim.

"It's just an example of what delay can do," Kirkland said.

The first defense brief -- a written statement of the main points of Weaver's appeal -- was not filed by his lawyers until 1996, after at least 18 postponements in the filing deadline, court records show. The justices indicated at least three times they expected to allow no other extensions, only to relent later.

The court finally removed Weaver attorney Richard E. Ross of Santa Monica in October 1990 after starting contempt proceedings against him.

Ross blamed the delays on a series of problems, including a long murder trial on which he was working, the theft of Weaver-related information during an office break-in and an arm injury the attorney suffered in a car accident.

Later, San Francisco attorney Marvin Rous took the case -- and also suffered an arm injury that slowed progress.

Rous recovered and remained on the case, representing Weaver when the court finally held the first hearing on the appeal in May. A few weeks later, and more than 16 years after the original trial, the state Supreme Court upheld Weaver's conviction and his death sentence.

But that's not the end of it. Not even close. Weaver still has state habeas corpus proceedings and two federal appeals courts standing between him and his death sentence.

"How many chances does he get?" McCarty said, the years of frustration boiling over in bitterness and anger.

"I don't want to see his face unless I know he is going to die," she added. "Then I wouldn't mind looking at his dirty, ugly face."

But not all family members of murder victims are in favor of capital punishment.

Naomi White and Derrel Myers, a San Francisco couple whose 23-year-old son, Joshua "JoJo" White, was shot to death by a stranger in 1996, said they have no wish to see the gunman executed.

Coretta Scott King, widow of Martin Luther King Jr., also opposed the death penalty in retaliation for the assassination of her husband.

"An evil deed is not redeemed by an evil deed of retaliation," King was quoted as saying. "Justice is never advanced in the taking of a human life."

Death penalty opponents argue that every time a case is appealed, or an execution date set, the victim's family will have to deal with memories of the murder all over again. This long process, some claim, can prevent the victim's family from grieving and reaching closure.

But the brother of murder victim Barbara Levoy sees it otherwise. It's the incomprehensible length of the appeals process and the care taken by the state to be fair to convicted murderers that prevents him from finding comfort and closure, Bob Levoy argues.

Life in prison for his sister's killer just isn't enough to make up for a young woman's funeral, the cemetery plot and headstone, the empty chair at holidays, the grandchildren who will never be born ...

To put it simply: Barbara Levoy is long dead. Ward Weaver is still alive, Levoy says. And that's wrong.

"I keep this book; I keep up with every case," he said. "The day I can cross off his name will be the happiest day I'll ever have."