When all the winter leaves turned brown and the skies gray, California dreamin' turned into a homicidal nightmare in January .
On Jan. 30, Tulare County Sheriff Mike Boudreaux held a press conference to announce there are "many twists and turns" in the investigation into the Jan. 16 "cartel-style executions" of four adults, a 16-year-old, and her 10-month-old child. According to Boudreaux, the "Goshen Massacre" victims have "very high ... connections with gangs." Sheriff Boudreaux took no questions from reporters. From what he has disclosed we can infer one or more of the victims may have stepped on the wrong toes. Retaliation in the form of execution may be the cost of doing so. No witnesses left behind.
The silence is deafening.
Frustration seems to be at an all-time high for law enforcement officials. They've been taxed beyond anything experienced in the past. While in the background the notorious George Floyd and Tyre Nichols abuse-of-authority cases call for national police reform, in the foreground California has seen 11 people in Monterey Park gunned down, seven more in Half Moon Bay, three in Beverly Crest, six in Goshen, and a police officer slain in Selma. Nearly 30 people have died at the hands of gun violence in less than two weeks.
But to my mind Sheriff Boudreaux's call for Gov. Gavin Newsom to "lift the moratorium on the death penalty where small children are murdered" reflects his exasperation with an incomplete investigation in the Goshen case. He offers nothing new to justify lifting the moratorium on executions. Newsom's response was swift and pointed. The moratorium is not the issue: "I think we should find the perpetrators."
In point of fact, Sheriff Boudreaux has misconceived the moratorium. Local district attorneys are free to exercise discretion in "special circumstance" (e.g., multiple victims) murder cases to ask jurors to return death sentences. Newsom's 2019 declaration of a moratorium places a hiatus on executions, but it does not preclude the prosecution of death-eligible murders. If another governor is elected in 2024, executions could start up. Someone like Donald Trump, for example, ignored the de facto moratorium on executions by the Clinton, Bush and Obama administrations. He ordered lethal injections for 17 condemned federal inmates during his last three months in office. The blood bath is tribute to his tawdry legacy as chief executive; no other country in the free world has executed anyone for half a century.
Moreover, District Attorney Tim Ward has continued to seek the death penalty in prosecuting special-circumstance murder cases despite the moratorium on executions. Following in the footsteps of Tulare County District Attorneys Gerald Sevier and Phil Cline, Ward has carried on the tradition of seeking the death penalty that per capita outpaces virtually every other county in California. Ironically, he also signed off on the deal arranged in Sacramento that sent former Exeter police officer, Joseph DeAngelo, the Visalia Ransacker aka Golden State Killer, to prison for the remainder of his dreadful life. The lesson? Charging decisions rest in the hands of prosecutors, not sheriffs or police chiefs.
Similarly, Fresno County District Attorney Lisa Smittcamp has sought the death penalty in three murder cases since the moratorium on executions was imposed. There's little doubt in my mind that she'll do so again following the murder of Selma Police Officer Gonzalo Carrasco, Jr. on Jan. 31. Offenders who kill police officers, children, or the elderly, are targeted more often than others for capital murder prosecutions, while minority victims seem to be less "attractive," which leads many jurists to conclude that the death penalty continues to be imposed in a discriminatory, arbitrary and capricious manner.
In a fit of her own frustration, DA Smittcamp lashed out at Newsom and "every legislator in the state of California who supports this over-reaching phenomenon they try to disguise as legitimate criminal justice reform, [and they have] the blood of this officer on their hands." Newsom's reply was equally prompt and curt, "She has the prosecutorial discretion. Ask her what she did in terms of prosecuting" Nathaniel Michael Dixon, Carrasco's killer, in his prior robbery case in 2021. He suggested she "look in the mirror" to explain why Dixon was back on the streets because of her office's decisions on plea negotiations with Dixon.
Moratoriums on executions have been declared in a number of states over the years, often as prelude to abolition. California's slim margin in the last two electoral cycles (51-49) supporting capital punishment is at an all-time low. (For what it's worth, all condemned inmates have been moved off of San Quentin's Death Row and into high-security prisons to join those sentenced to the alternative to death, life imprisonment without possibility of parole.)
When faced with the tragedy that unfolded in Half Moon Bay, we didn't hear San Mateo County Sheriff Christina Corpus complain about the moratorium on executions. She expressed the "devastation" felt by all and was joined by measured comments from county supervisors calling for gun reform in America. District Attorney Steve Wagstaffe seemed as stunned by the scope of the violence as anyone, "We've never seen anything [seven victims] like this." DA Wagstaffe will have to weigh the cost of pursuing death penalty litigation against a sixty-six-year-old Chinese citizen with all other appropriate factors, the same process DA Ward will follow once the perpetrators of the Goshen Massacre have been identified and arrested.
The decision to seek the death penalty is not for sheriffs or police chiefs; they are our lead investigators in the field and their work is dangerous and critical to public safety and affirming the rule of law. If voters don't like the charging decisions their local prosecutor makes, it is up to the citizenry to decide whether to retain her or him when elections roll around. In the meantime, executions have never provided solutions; they simply fuel the cycle of violence.
Boudreaux's advocacy has put pressure on Ward. This is not to say that he isn't entitled to his opinion, or that heavy punishment isn't awaiting those who are apprehended and convicted of the heinous murders in Goshen, but in my view, Boudreaux overstepped his professional bounds. His news conference - like that of DA Smittcamp - is the kind of pretrial poison that infects jury pools and makes a fair trial problematical in the community where the crime occurred; change of venue is an enormous expense borne by local taxpayers.
The war of words in the law enforcement community distracts from the real problem of gun violence in California and across the nation. This week State Senator Anthony Portantino proposed legislation on concealed firearms, a step in the right direction, but a far cry from changing the culture of violence. Congress can't seem to find a way to stand up to gun lobbyists, and the Supreme Court continues to coddle 2nd Amendment "originalists" with 18th Century philosophy, failing to confront modern reality.
My hope is that leaders in law enforcement will refrain from nasty rhetoric and come together to help find solutions to gun violence in our communities. If not for us, then for the benefit of our children and grandchildren.
Phillip H. Cherney is a lawyer who has represented the infamous Oakland drug czar, Felix Mitchell, Richard Allen Davis in the Polly Klaas kidnap/murder case, and Joel Radovcich, whom Dana Ewell hired to kill his sister and parents in Fresno in 1992. He is Adjunct Professor of Criminal Law at San Joaquin College of Law.
This article originally appeared on Visalia Times-Delta: Opinion: The decision to seek death penalty is not for sheriffs or police chiefs