By Paul Elias
SAN FRANCISCO — Earlier this year, the U.S. Supreme Court rejected Robert Fairbank’s appeal of his death sentence for the 1985 rape and murder of college student Wendy Cheek.
With that rejection, Fairbank joined at least 13 other death row inmates who have completed the decades-long capital punishment appeals process and are eligible for execution.
Nonetheless, none of the 14 death row inmates who have “exhausted” their appeals will receive a lethal injection anytime soon — even though 53 percent of the California electorate reinforced its support of the death penalty with the rejection of Proposition 34 on Nov. 6.
Lawsuits in federal and state courts have halted executions since January 2006 and it will take months, maybe years, to resolve the litigation. Judges have ordered a halt to executions and lawyers with the state’s attorney general’s office have promised not to pursue any executions until the cases are resolved.
Still, a growing number of prosecutors, law enforcement officials and capital punishment proponents are pushing for the quick resumption of execution, citing the defeat of Proposition 34 as a mandate from the voters. They’re calling for an end-run around the legal hang-ups, calling for the scrapping of the three-drug lethal injection at the center of the litigation and replacing it with a single-drug execution.
Six other states already have abandoned the three-drug process and adopted the single-drug execution.
In recent months, Los Angeles County District Attorney Steve Cooley and San Mateo County District Attorney Steve Wagstaffe have formally asked local judges for death warrants for three death row inmates and an order to execute them with a single, lethal dose of pentobarbital, a drug previously used to euthanize animals.
But a Los Angeles judge rejected Cooley’s motion and Wagstaffe is expecting the same treatment in San Mateo Superior Court, conceding his legal maneuver to have Fairbank’s executed soon is more symbolic than realistic.
“I am simply trying to get the system moving,” Wagstaffe said. “I’m trying to shake the tree a little bit to get people to pay attention. He does deserve death for what he did to Wendy Cheek.”
Fairbank has been on death row since 1989, the other 13 inmates eligible for execution have been there longer, including Stevie Fields who arrived in 1979. Fields was convicted that same year of going on a “one-man crime spree” around the USC campus that included the rape and murder of a student librarian two weeks after his parole from prison on a manslaughter conviction.
Others on the list of inmates ready for execution include Michael Morales, who came within hours of his execution for the rape and murder of a teen before a judge blocked it in 2006 because of his lawsuit. Morales alleges the state’s process for administering the three-drug lethal cocktail is so flawed that inmates run the risk of suffering cruel and unusual punishment.
In response to a judge’s order prompted by Morales’ lawsuit, prison officials spent nearly $1 million to construct a sparkling new lethal injection facility that looks and feels like a high-tech hospital room, replacing the dark and decades-old gas chamber that was used in the past. They’ve also trained a new team of guards to carry out executions and revised their protocols. They say the state is now ready to resume executions.
Morales lawyers argue that the state still hasn’t done enough to ensure California’s executions are constitutional. A federal judge plans to hold a hearing on the matter later before making a decision, which could lead to the resumption of executions.
But a growing number of death penalty supporters like the Criminal Justice Legal Foundation in Sacramento say Gov. Jerry Brown and lawmakers can hasten executions if they move quickly to change state’s death penalty to a single drug.
“The state of Washington carried out an execution six months after adoption of the new method,” said Michael Rushford, president of the foundation, “and California can also.”
Rushford also said new laws limiting death penalty appeals and the admittance of more defense attorneys deemed qualified to handle such cases will also speed up the process.
McGregor Scott, a former U.S. attorney in Sacramento and a leader of the campaign against Proposition 34, said death penalty supporters would attempt to put a measure of their own in the 2014 ballot if lawmakers fail to adopt a one-drug injection for California.
“Other states have corrected the same problems, and it is now time for California to do the same,” Scott said in a prepared statement Nov. 7 after Proposition 34 was officially declared a loser. “If the Legislature continues to abandon its responsibility by refusing to implement common-sense reforms then we will put our full support behind a ballot initiative to get the job done in 2014.”
On the other side of the debate, supporters of the ballot measure vowed to continue fighting to end capital punishment in California. They said they would support the pending lawsuits and oppose attempts to restart executions with a single drug while working toward another campaign to end the death penalty, either through the Legislature or the ballot box.
Proposition 34 campaign officials said that support for the death sentences is eroding in California, noting that 71 percent of the electorate voted to reinstate capital punishment in 1978 compared to the 52 percent who voted against Proposition 34 this fall.
“We are going to move forward with the voters,” said Natasha Minsker, an ACLU attorney who managed the Proposition 34 campaign. “Fifty-two percent of the vote is not a mandate.”