Nov. 21, 2005
Gov. Arnold Schwarzenegger
State of California
Re Stanley Tookie Williams case
Dear Governor,
As the execution date is drawing near, once again I suggest that you convene a discussion between the contending parties to help you reach a decision. As your legal affairs secretary has written, "clemency decisions are never easy," and "only after serious consideration and careful deliberation of this matter will the Governor make his decision."
Participants in a deliberative process must approach the issues in a non-dogmatic way. For example, if one party favors the total abolition of the death penalty, they must be able to defend clemency for Stanley Tookie Williams on additional grounds, i.e., that he has experienced a rehabilitation consistent with your stated philosophy as Governor and with accepted standards described in public policy. I believe that opponents of the Dec. 13th execution have put aside their philosophical feelings about the death penalty and set forth a rational and persuasive case that Stanley Tookie Williams deserves clemency for his thirteen years as an effective peacemaker.
In contrast, the prosecution has never shown a similar responsibility in their approach. The Times' coverage describes their approach as "unusually fierce." Their statements and briefs make no mention of Stanley Tookie Williams' thirteen years as a rehabilitated prisoner. If anything, they wish to deny this chapter of the Tookie Williams' story, regarding it as all a fabrication. In their view, he cannot be "rehabilitated" unless he acknowledges guilt for crimes he denies committing, and if he "de-briefs" [snitches] on other inmates who may be gang members. Even then, in the prosecution view, he should die on Dec. 13th [a better person, apparently, for having confessed his sins].
The prosecution declares in its recent filing that Stanley Tookie Williams has "left his mark forever on our society by co-founding one of the most vicious, brutal gangs in existence, the Crips." Forever : this is the language of prosecutors who no longer represent "the People" but have turned into fundamentalist mullahs in pursuit of a symbolic victory over an enemy that their thirty-year "war on gangs" has failed to defeat.
This fundamentalism disqualifies the prosecution as a party to the "careful deliberation" you have promised in this case. The prosecutors do not believe in weighing the past against the present. The past is everything. The prisoner's sins cannot be forgiven. His apologies cannot be accepted. Even thirteen more years of promoting peaceful alternatives to gang violence would not be enough. Spending the rest of his life as a peacemaker behind bars would not be enough. According to this lethal logic, not even death on Dec. 13th can compensate for damage that has been inflicted "forever."
You should ask the prosecution if I am wrong in calling them fundamentalists in this matter. What "careful deliberation" have they gone through to conclude that the past must control the present and future? How do they weigh the value to "the People" of his death on December 13th versus the value of spending the rest of his life behind bars as an advocate against gangs and violence? You will see that there has been no "careful deliberation" whatsoever, simply an unbalanced, even fanatical, campaign to kill Tookie Williams as a trophy in the war on gangs.
The prosecution boasts of the "overwhelming nature of the evidence against him...[and] non-existence of any credible defense," a claim expressed in a private communication to me from the Attorney General's office in 2004:
"Thanks, Tom, and I wish this was a matter on which we agreed. This is a case, however, that we in the Lockyer family have been monitoring for a long while, and we're well aware of the PR blitz that's building on this one. We are convinced the People got the facts and the law right in this case, and that the jury reached a proper verdict on guilt and penalty. The job that's given to the Attorney General's office is to defend the jury verdict and uphold the law..."
I once wondered aloud if Bill Lockyer would become more "attorney" or more "general" once elected as the state's chief law enforcement officer. When I first met him years before, Lockyer encouraged me to join him in the Legislature as "another lefty." But I watched him evolve to become an agent of the forces he once opposed. The very notion that his role is "to defend the jury verdict" as a matter of principle represents the slide into fundamentalism I have warned against.
For example, nine federal judges on the U.S. Ninth Circuit dissented strongly on Feb. 2, 2005 concerning the original jury verdict. The nine did not prevail, but their findings cannot be dismissed as irrelevant when carefully deliberating over clemency. But the Attorney General would have you ignore the words of Judge Rawlinson, writing for her colleagues, judges Pregerson, Reinhardt, Thomas, Wardlaw, Fletcher, Fisher, Paez, and Berzon, that Williams' deserved a new evidentiary hearing into the purging of three African-Americans from his jury panel. This blatant whitening of the jury panel occurred, the nine dissenters agreed, because of the "inexplicable" and "ineffective" behavior of Williams' appointed counsel, who should have objected to the all-white jury. The counsel's failure to object constituted "ineffective assistance of counsel, and we should not hesitate to say so." [Williams v. Woodford, p. 1338] The nine justices concluded that the Williams case "sends an unmistakable message" that trials may proceed "in the face of blatant, race-based jury selection practices." [1339].
Admittedly, these nine federal judges failed to persuade fifteen other colleagues. But for purposes of a clemency hearing, their ringing dissent should contribute to reasonable doubt as to whether execution is the recommended consensus of impartial experts on the case. It should be remembered as well that a majority of the Ninth Circuit recommended Stanley Tookie Williams as a worthy candidate for clemency.
In response to the all-white jury controversy, Attorney General Lockyer sent out a public relations spokesman, Nathan Barankan, to offer the opinion that the three blacks were purged for "other reasons," ignoring the nine-judge opinion that the Attorney General's argument "cleared the way for attorneys 'who are of a mind to discriminate' by exercising their peremptory challenges to excise prospective African-American jurors from the jury box." [1316] By Barankan's "reasoning," a violation would require that the prosecutor openly state a racist intention, not give "other reasons" for expelling blacks from the jury pool. Obviously no prosecutor would act so openly, but the fact of the matter is that this particular prosecutor was twice censured by the California Supreme Court for "invidious discrimination" by expelling black jurors in two other cases!
The Ninth Circuit as a whole additionally declared in 2002 that the Williams prosecution was based on "circumstantial evidence and the testimony of witnesses with less-than-clean backgrounds and incentives to lie in order to obtain leniency from the state in either charging or sentencing." [13651] "Less than clean" is an understatement here, as we shall see.
The opinion of these judges should be central to any decision regarding clemency, where moral and factual doubt should come into play. More than one hundred people on Death Row have been exonerated already based on DNA and other evidence. "Innocent individuals are sentenced to death, and undoubtedly executed, much more often than previously understood," according to Judge Mark Wolf of the federal district court in Boston. To decide to execute where there is reasonable doubt would leave an unretrievable stain on your legacy and that of the California justice system.
In years to come, books and films will uncover the extraordinary and unethical lengths to which prosecutors and police have gone to snare, drug, convict and execute this "Bengal tiger," as the prosecutor called him during the original trial. The script will be like that of another L.A. Confidential. If it appears that I exaggerate, take the story of simply one key witness against Tookie Williams, Alfred Coward, from the transcripts.
Mr. Coward was provided immunity for his claimed role beside Tookie Williams in the 7-11 murder case. The prosecutors failed to disclose at the time that Coward was an illegal alien from Canada who would face deportation because of his [also undisclosed] career of armed robberies. One of his several armed robberies occurred at 104th and Vermont, the location of the motel where the Yang family later would be murdered. Just a coincidence? Coward came off probation on Feb. 5, 1979, three weeks before the 7-11 murder of Albert Owens. In 1984, four years after the 7-11 case, where he admitted an accessory role in exchange for immunity, Coward was convicted of a conspiracy to steal checks; he received five years probation. In 1989, he was twice arrested for narcotics and burglary; the District Attorney declined to file charges against him. In 1990, he was arrested again; charges were declined. Again in 1990, he pled guilty to burglary, but was placed on probation with concurrence of the DA. In other words, the Coward character in this story led a charmed life of crime in the years after his testimony against Tookie Williams. His luck ran out in 1999, when he robbed and killed someone in Canada. He currently is serving a seven-year sentence in Ontario.
The lesson of reliance on "less than clean" informants is that zealous prosecutors may convict their target, in this case Tookie Williams, on testimony from criminal individuals whose credibility they would never trust otherwise, while protecting those same informants while they continue criminal careers that threaten the lives of others. The irony is that the same prosecutors who refuse to believe in rehabilitation ask us to believe that informants are reliable witnesses.
Consistent with the use of snitches as witnesses, the prosecution would require that Tookie Williams now snitch on other inmates or persons suspected of gang affiliation. But exorcising of the devil has not been required for rehabilitation since the Inquisition. There are two problems in "de-briefing": first, any information obtained through coercion or rewards is inherently suspect and, second, the perception that an inmate has "snitched" has dire consequences for that inmate's safety. Conversely, the fact that Tookie hasn't "snitched" may be a sign of integrity and honor, not proof that he is possessed by the Devil. It should be enough that he has expressed remorse and apologies for his past involvements without requiring that he become an informant for the state that seeks to execute him.
The prosecution asks you to ignore or disallow any evidence that Tookie Williams has participated for thirteen years in efforts to end self-destructive violence, develop protocols for gang truces, taken stands against gangs which could threaten his life, or counseled thousands of kids to avoid gangs, guns and violence. In asking you to ignore this evidence, the prosecutors defy not only your own goal of rehabilitation but state policies and judicial rulings which affirm rehabilitation as a cornerstone of the correctional system.
In closing, let me cite a historic example of why it is unreasonable to hold someone responsible "forever" for the crimes of a street gang they joined in their youth. It is the story of Richard Daley, the former mayor of Chicago, who was a seventeen-year-old member of an Irish gang known as the Hamburgs when the 1919 race riots broke out. Thirty-eight persons died in those riots, which set in motion Chicago's first black gangs in self-defense. Daley was president of the Hamburgs for fifteen years, according to professor John Hagedorn, "and never commented on what he did during the 1919 race riots." Fast forward to the mid-century when Daley was mayor, and was asked about handing out jobs and contracts to what the FBI called "the hoodlum element." Daley's answer was that "I've been criticized for doing this, but I'll make no apologies. I'll always stand alongside the man with a criminal record when I think he deserves another chance."
Stanley Tookie Williams is asking for clemency, not for a government contract. He deserves your clemency and your instruction that he continue to promote the end of violence until the end of his days.
Sincerely,
TOM HAYDEN