Law Practice
Apr. 21, 2004
Attorney Battles to Right Capital System
SANTA BARBARA - Robert M. Sanger threw Santa Barbara courts into disarray last year when he convinced a judge that the county's way of assembling jury pools was racist.
But the uproar was nothing new for Sanger, a criminal defense and civil litigator with a history of mounting crusades that upset the status quo.
Sanger spent hundreds of hours during the past year and a half comparing California's death-penalty system to that of Illinois, where 17 innocent people were found to be waiting on death row for execution.
Sanger's conclusion: California shares the same shortcomings that led an Illinois commission to declare the system broken, including lax standards for judges and lawyers who try capital cases.
"The same sort of thing exists here, or don't exist here, that were problems in Illinois," Sanger said.
"We're talking about life or death, and you can have a judge who is basically a novice at criminal law and basically a novice at jury trials." Sanger said.
Tonight, Sanger will be honored for his death-penalty work at a Beverly Hills gala put on by the anti-capital punishment group Death Penalty Focus. Former First Lady Rosalyn Carter also is set for an award.
Sanger, 55, grew up in Oxnard, where, he said, he never knew any lawyers.
The son of a mailman and a homemaker, he decided he wanted to be a criminal defense attorney after taking a high-school field trip to a justice court in Port Hueneme.
"The DA was wearing a three-piece banker's striped suit and was clearly in control of the courtroom [and] had the judge's respect. The defense lawyer was sort of a depressed-looking guy. His hair was a mess. He was wearing an orangeish-brown plaid coat, and the lining was coming out on the bottom of the right side [and] hanging down.
"His client was Latino, and [the lawyer] had no connection with him. He didn't seem to know what he was doing. I sat there for a while, and it just struck me that this whole picture was wrong."
It was a wrong that Sanger decided to do his part to rectify.
Speaking to a reporter in January, Sanger, dressed in a sharply tailored gray suit, was silhouetted against expensive furniture in his office, just steps off historic lower State Street.
Sanger has an aesthetic - and a confidence - that rivals (some say eclipses) any of the government-salaried deputy district attorneys he regularly battles in court, colleagues say.
"I really believe that, being a criminal defense lawyer, we're there to even the odds one case at a time," Sanger said. "I tell new lawyers, our job is to stand up for the dignity of our client and to demand that the system give our individual clients respect."
Sanger's zeal was at work when he persuaded Superior Court Judge Frank Ochoa in November that the jury system in Santa Barbara discriminated against Latinos and needed fixing.
The county's practice was to purge jury pools of those who didn't answer summons. Sanger contended, and Ochoa agreed, that the policy disproportionately excluded Latinos, who often have limited English proficiency or work as migratory laborers and, therefore, do not answer mail. Sanger objected on behalf of one of his clients, and Ochoa found the Santa Barbara jury pool had historically discriminated against Latinos.
"Clearly, in terms of a statistical review, Hispanics are not represented in a fair and reasonable fashion in jury pools in relation to the number of Hispanic persons eligible to serve on a jury in the community," Ochoa said in his ruling.
Since then, the court has required all defendants to sign waivers informing them of the decision with the district attorney's office and their own counsel if they wish to go to trial. The situation is unlikely to change while the case, People v. Benjamin Ballesteros, is pending before the 2nd District Court of Appeal. Should Ballesteros win his appeal, he will be granted a trial from a new jury pool.
"Now, it's controlled chaos," said David L. Nye of San Barbara's Nye Peabody & Stirling of the current jury system. Nye represents the court.
Sanger said he started his death-penalty study after hearing California law enforcement officials dismiss as irrelevant the 2002 independent commission report on the Illinois system.
"I started to read it and thought, 'We don't comply with any of this stuff,'" recalled Sanger, who tried his first death-penalty case a quarter-century ago.
Sanger's study was released in April 2003 during a state Senate committee hearing on the death penalty at which former Illinois Gov. George H. Ryan testified. Ryan suspended executions in Illinois in 2000 and eventually cleared out that state's death row after officials there uncovered the presence of innocent people.
An extended version of Sanger's study was published in the current issue of the Santa Clara Law Review, www.scu.edu/lawreview.
California's death row is three times as large as Illinois', so the impact of any flaws is magnified, Sanger concluded.
He also recommended that judges and lawyers be required to have a deeper level of criminal law experience before taking a death-penalty case. And, police should curb their use of jailhouse snitches and have officers not assigned to the case handle witnesses during lineups, he contended.
"The innocent people who ended up on death row in Illinois were there largely because the officers in good faith felt they were doing the right thing pursuing these people," Sanger said.
Since it was published, Sanger's report has become the talk of lawyers who do death-penalty cases in California. He hopes his work will gain even wider notice.
"I can't say while I was writing it [that] I was sitting there saying, 'Boy, somebody's going to read this and do something,'" Sanger said. "But now that it's done, I'm really hoping that somebody will take a look at it in the governor's office, the attorney general's office ... and say, 'Wait a second, maybe we should take a step back.'"
Vincent Sollito, spokesman for Gov. Arnold Schwarzenegger, said he does not know if the governor has read Sanger's article.
But Sollito said, "Governor Schwarzenegger is very interested in taking a thoughtful and collaborative view of how government serves its customers, and youth and adult correction issues are a part of that."
Schwarzenegger's actions, so far, do not bode well for Sanger. In January, the governor refused the first clemency request that crossed his desk, that of Kevin Cooper, who was scheduled to die for the brutal slayings of four people in Chino Hills in 1983.
The governor said he found no reason to commute Cooper's sentence. The 9th U.S. Circuit Court of Appeals eventually stepped in and issued a temporary stay of Cooper's execution.
Dane R. Gillette, head of Attorney General Bill Lockyer's death-penalty unit, called Sanger's report "absurd."
"Comparing California to what happened in Illinois doesn't fly," Gillette said.
Notwithstanding his controversial stands on the Santa Barbara jury system and on death row, Sanger insists he is not "polemical." He believes the possible execution of innocent people is too dire a problem to ignore.
"Illinois, after all, studied this because they had 13 people who were innocent, who were sitting there on death row waiting to be killed," Sanger said. "It turns out they found four more. So they ended up with 17. And we have exactly the same problem."
"Polemical" is just how Alameda County Deputy District Attorney James H. Anderson would describe Sanger.
The chair of the California District Attorney's Association's death-penalty committee, Anderson on Jan. 22, after reading Sanger's law review article, fired off a three-page letter of "disgust and dissatisfaction" to Donald J. Polden, dean of the Santa Clara University School of Law.
He called Sanger a "crusader" and a a "zealot" and declared his law review article "without merit and demeaning to the judiciary of this state and their voluminous rulings on the issue."
"I would like to know who anointed 'your' author as the constitutional authority on this issue," Anderson demanded. "Does he have more knowledge, and does he speak with more authority than, say, Justice Janice [Rogers] Brown? Justice Marvin [R.] Baxter? Or Chief Justice [Ronald M.] George?"
Anderson took particular issue with Sanger's recommendation that the 20 aggravating factors that qualify a California defendant for the death penalty be whittled down to five.
Anderson called that idea "a blatant attack to the public safety of California as I have ever encountered!"
If Sanger had his way, Richard Allen Davis, who raped and killed 10-year-old Polly Klass, and David Westerfield, who raped and killed 7-year-old Danielle van Dam, would have been ineligible for the death penalty, Anderson contends.
"I'm sure most sane Californians would not be pleased if that were the state of our laws," Anderson wrote.
Anderson also was upset that Sanger wrote in his article that "serious racial disparities permeate California's death penalty system."
Anderson called that a "racially charged, racially divisive comment" that is not backed up by the facts.
"This is erroneous, misleading and racial spin-doctoring at its worst!" Anderson wrote.
Sanger acknowledged he has not studied the way race plays into the California death penalty. But he points to an upcoming report by University of Colorado professor Michael L. Radelet and Northeastern University professor Glenn Pierce, who found that the killer of a white person is more likely to be executed than one who murdered a nonwhite victim.
Sanger does not deny that his recommendations would spare the lives of some of California's most notorious killers. After all, he is fiercely opposed to the death penalty and would like it if no one was executed.
But he said Anderson's remarks are "an emotional reaction to what was intended to be an intellectual article."
"I have not received, to date, any criticism on the merits of what I wrote," Sanger said. "No one has come forward to say it is inaccurate or that I misquoted the law.
"So, despite the emotional response of Mr. Anderson, who wants to kill people, our system is severely flawed. That is documented in my article. And I don't think that Mr. Anderson saying [that the report's recommendations] would prevent certain prisoners from being killed addresses the merits. And the merits are [that] we just fail to meet the standards that Illinois set up and that have been imposed elsewhere."
David Houston
david_houston@dailyjournal.com
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com