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February 14, 2007

Another view of viewing an execution

As detailed here and here and here, some weeks ago the aesthetics of the death penalty in general and the swiftness of the Saddam execution in particular generated a lot of interesting debate.  Against that backdrop, folks interested in execution procedures in particular and the death penalty in general ought to check out this article now available on-line from the California Lawyer. 

The article is entitled simply, "Witness to an Execution," and is authored by James Ardaiz, who is now the administrative presiding justice of the Fifth District Court of Appeal in Fresno.  Judge Ardaiz describes his experience attending the 2006 execution of Clarence Ray Allen, whom Ardaiz prosecuted back in 1977.  Here is one of many moving passages:

Allen's appeal and writ process had taken more years than the life spans of all but one of his victims. He had outlived the parents of some of the victims.  What of the surviving parents who were too infirm to witness his punishment?  What was the toll of their suffering through their long years of waiting?  Much of the publicity in the last few weeks had been about public and legal reaction concerning executing such an aged inmate.  I thought about the fact that, in the end, Allen's health was better than that of the parents of the victims. Where was the outrage at that?

As I looked at the people walking out of the witness room behind me, I saw that Allen had left a long trail of victims behind, and many of them were here walking along silently.  For most of them I don't think it was over.  I don't think it will ever be over.  But there is one thing I know for sure: The length of time that all of this took added a layer of pain to what these people endured.  And that was wrong.

February 14, 2007 at 06:09 PM | Permalink


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This brings home why judges who dislike the death penalty and who illegitimately thwart it are completely beneath contempt. Completely.

Posted by: | Feb 14, 2007 8:11:38 PM

I sat next to Justice Ardaiz as a witness to the execution of Clarence Ray Allen. He accurately depicts the mood and solemnity of that event ["Witness to an Execution," November]. Allen was serving a life sentence for murdering Mary Sue Kitts when he ordered the deaths of witnesses who had testified against him, and he did not care who got in the way. Josephine Rocha and Douglas White got in the way at Fran's Market when Allen's hired murderer arrived to kill Bryon Schletewitz.
As the Ninth Circuit Court of Appeals explained, "If the death penalty is to serve any purpose at all, it is to prevent the very sort of murderous conduct for which Allen was convicted."
One of Allen's intended victims was Fran's Market owner Ray Schletewitz. He and his wife, Fran, worked tirelessly to reform the system. When I told Ray that Allen's case was almost over, he expressed relief and his desire to see it through to the end by witnessing the execution of the man who murdered his son. Just two days later Ray suffered a fatal accident, and I felt a taste of his frustration. It remains to be seen whether our state, including our legal community, will carry on Ray's work by reconciling the demands of a fair process with timely justice.
Any feelings of pity I had that night were allayed by the memory of Allen's crimes and his victims. I thought of the terrifying final moments of Bryon Schletewitz, Josephine Rocha, Douglas White, and Mary Sue Kitts. I remembered what Shakespeare said about dying, and I hoped for their sakes that he was right: "The rest is silence."

Posted by: ward | Feb 15, 2007 12:43:49 AM

The first comment can’t be taken seriously, since it doesn’t define “legitimately.” Unless a judge does something that is actually illegal his actions are “legitimate.” For better or worse, judges are entrusted with interpreting our laws, which include a constitution which has several difficult parts, which call into question the legal and practical procedures of state-sponsored killing. (That last phrase isn’t meant to be political, but it is 1) sponsored by the state; and 2) someone is dying. I am not saying that execution is necessarily “murder.”) We could change the constitution to make it easier to execute people. But we don’t. The major constitutional priorities in the past few years have involved prohibiting gay marriage. So, to some extent, it can be said that people like our method of killing people the way it is.

As to this individual case, if this guy had stayed in jail for life, then the family would have known that this was the end. On the other hand, does democracy really owe people the satisfaction of watching an execution, like an investor gets to watch a private screening of a movie?

Next, I am not sure whether it really is proper for a sitting judge to be viewing an execution that he participated in securing. For that matter, it seems odd that prosecutors would get to watch their own “handiwork” while at the same time resisting all attempts at media scrutiny of the death penalty. This seems a tad barbaric, and indicates that they have something to hide from the electorate.

But, I guess, one could argue that the whole death penalty is.

The only way that Democracy will ever be able to resolve death penalty questions is if the media is able to cover every moment of the execution, and the resulting reportage is available to all. This means kids, adults, and everyone. That way we can make truly informed decisions about it, rather than relying on biased judges (as this guy seems to be), so-called “victims” or people that hate the death penalty on general principle.

Posted by: S.cotus | Feb 15, 2007 6:41:38 AM

Any discussion of the impact of executions is incomplete without looking at the impact on everyone in the process. Murder Victims Families for Human Rights has issued a report on the impact executions have on the inmates' families, and it can be found here - http://tinyurl.com/yq7nxf. Murder Victims Families for Reconciliation has also also issued a report of how families who oppose execution are "silenced, marginalized, and abandoned" by the death penalty process. That report can be found here - http://tinyurl.com/2xz3b6.

Posted by: Will | Feb 15, 2007 10:41:32 AM

A few things about this individual case should be clarified:
Justice Ardaiz was not a sitting judge who participated in securing a death penalty in this case. He was the original prosecutor in the case in which Allen was convicted of murdering Mary Sue Kitts. When Allen was convicted in 1977, he was sentenced to life in prison (there was no sentence of life without the possibility of parole available since Allen murdered Kitts in 1974). It was while Allen was serving this life sentence for the Kitts murder, he conspired with an inmate who was being released to murder witnesses who testified against him in the Kitts murder trial. This resulted in the murder of Bryon Schletewitz in 1980 along with the murders of the two other young people who were present at the time, Douglas Scott and Josephine Rocha. Shortly afterwards, Ardaiz was appointed a judge. In any event, due to a conflict of interest, the California Attorney General's office prosecuted Allen for the Schletewitz murder. Ardaiz never had anything to do with that case--but, of course, retained an interest because of the Kitts murder.

As for the comment "if this guy had stayed in jail for life, then the family would have known that this was the end"--well, the best that can be said is that the commentator did not understand the case--Allen was already serving a life sentence for murder when he orchaestrated the murder of Bryon Schletewitz. Indeed, he was convicted of conspiring to murder 7 witnesses. So, to the contrary, even if Allen had "stayed in jail for life" none of his potential victims "would have known that this was the end." Life in prison had not in any way reduced Allen's danger on the outside.

Posted by: ward | Feb 15, 2007 10:53:44 AM

Ward, I understood the situation. I don’t think it is proper for any judge to witness an execution, unless, somehow it was a part of his official duties. Likewise, I find it odd that a prosecutor (and, in this case a former prosecutor with no connection to the case) thinks that it is ethical to gleefully gaze upon this man as he is killed until he is dead. Then, while telling the world how wonderful (and seemingly beautiful) it is to watch a man die, they resist all calls to open it to press or public scrutiny so that the “people” can really make an informed decision. Further, when the courts postpone an execution to conduct the more searching (and time-consuming) 8th amendment analysis required by the constitution, these same prosecutors scream that the “will” of the people is being violated.

Yes, this guy was committed of a crime after having been sentenced to life. But so what? Society determined that this person should be put in jail for life, and essentially gave up on integrating him back into society. We do this all the time. Not surprisingly he bore a grudge against the people that participated in this function, and committed a crime against them. This crime had several accomplices who, it seems, had (prior to the second crimes) not been assessed as a total loss by our criminal justice system. So, we decided that the only way to make the world just would be to kill the person that ordered the first hit, just so, it seems he wouldn’t order further hits.

But, to me, there is something sicker about this. Whenever someone is sentenced for solicitation of murder, we are admitting that we, as a society, produce people that are so unable to resist entreaties to commit crimes that we must punish the person who does ths soliciting. In this case by killing him. The families of the victims think that somehow this will be the end. Will it? Who knows? Maybe he has other people under his hypnotic spell. Who knows? Whatever the case, legislatures like to convince people that executing a few people will result in some form of justice.

Posted by: S.cotus | Feb 15, 2007 11:33:55 AM

S.cotus, if you can write with a straight face that the Ninth Circuit has been scrupulously fair with death cases, then I'll concede your point.

Posted by: federalist | Feb 15, 2007 11:38:02 AM

Since you don’t provide specifics it is difficult to agree or disagree with you. As a matter of course, if you want to claim that a court made a legal error, you must provide a citation, complete with pin-cites. If you want to seem credible, you should provide the text which includes the relevant legal error. You are completely incapable of doing this. The best you have ever done on here is provide a URL, which I didn’t prove your point (and you refused to provide any other details, so it was impossible to even tell for certain what supposed error you were talking about.) Perhaps this failure to provide specifics is why your arguments fail so many times in court. It isn’t because the judges are biased. Other people just provide specifics, whereas you provide vague insults. So, you blame the courts for failing to agree with you, when nobody really sees your argument.

So, to restate, you do not have an argument unless you 1) cite the 9th’s opinion with specificity (including pincite and text); 2) cite the Supreme Court’s opinion (or other authority) that contradicts it (again with pincites or text); and 3) show why #1 is an unreasonably interpretation of #2. If you don't do this, you don't get out of the starting gate.

But, just because a court makes an error of law doesn’t mean that it is being “unfair.” For one, you need to really explain what “fair” means in the context of a criminal appeal. Does it mean procedural fairness? Substantive fairness? Or are you arguing that fairness is defined solely by the legal correctness of a tribunal’s decision. If so, you can never argue that a decision is unfair unless you can objectively show that the tribunal was incorrect. In a common law system this is quite difficult, because it requires recourse to a court of appeal, which, in many cases, might not pass on the issue that you complain about.

Maybe you are claiming that the 9th has not “fairly” engaged in “distributive justice.” This is sort of an interesting argument, because I think that distributive justice is more of a lofty goal than constitutionally required.

Finally, and perhaps most fatal to your arguments is the question of – who – the 9th has been “unfair” to. States? I doubt it. States are large bodies of people that exercise sovereign power, yet are subject to some constraints. Since the decision to begin the process of killing someone is entirely within the discretion of the states, the state isn’t losing anything by losing on habeas? Victims of crime do not have a substantive right to see the perpetrator criminally punished, so such arguments fail.

Posted by: S.cotus | Feb 15, 2007 12:16:13 PM

Scotus--For the record, Justice Ardaiz witnessed the execution as one of the 12 reputable witnesses which the warden is required to have present as a matter of state law. I don't see where you find any "gleefulness" in his description of his feelings or the events. There was certainly no glee on display that night. My recollection is that there were at least 12 reporters present to view the entire process before the witnesses even entered the viewing area.

There were ample newspaper accounts and descriptions of the process. I don't see any criticism of that in Justice Ardaiz's article. In fact, the entire viewing area was quite full. In my experience, the understandable concern about publicity for the process has always related to the security and anonymity of the actual participants in the execution.

For the record, the hitman hired by Allen was also sentenced to death and his habeas is still pending. The other two accomplices, including Allen's son, were sentenced to life without the possibility of parole.

The crimes are described in both the California Supreme Court opinion (42 Cal.3d 1222) affirming the judgment and the subsequent Ninth Circuit opinion (395 F.3d 979). The latter closed with the following:

"Given the nature of his crimes, sentencing him to another life term would achieve none of the traditional purposes underlying punishment. Allen continues to pose a threat to society, indeed to those very persons who testified against him in the Fran's Market triple-murder trial here at issue, and has proven that he is beyond rehabilitation. He has shown himself more than capable of arranging murders from behind bars. If the death penalty is to serve any purpose at all, it is to prevent the very sort of murderous conduct for which Allen was convicted."

What you call "handiwork", I think, is what the survivors and potential victims call "justice".

Posted by: ward | Feb 15, 2007 12:18:20 PM

Ward, I am not saying he or the warden did anything illegal. But having the lawyer that brought about the execution seems like a display of glee. Most of the time lawyers that participated in other legal projects might, for example, attend the opening of a building that they worked on the finance of, or visit with an exonerated felon. Barry Sheck went to a wedding.

This guy, after quitting his job as a prosecutor decides that he needs to watch the killing of a man in which he played an integral part of the formalities.

Survivors call all sorts of things “justice” or “injustice.” But, for good reason, survivors and victims play a limited role in our system of criminal justice. Their views on whether defendants should be forgiven are, thankfully irrelevant. Most of the time, they can’t even decide whether or not they want to testify. Frequently they are put in jail for not cooperating with prosecutors. Only when the right combination of cooperativeness, facts, and politics appears, do people call it “justice.”

Posted by: S.cotus | Feb 15, 2007 12:48:33 PM

S.cotus, given the Ninth's history of reversals in habeas cases, many unanimous and many of the summary variety, history which is common knowledge, I think it safe to say that the states in habeas cases have not been treated neutrally by the Ninth, which is its absolute right as a litigant. Good faith mistakes are fine. Bad faith ones are not.

Posted by: federalist | Feb 15, 2007 12:52:58 PM

Scotus-we may have to agree to disagree. My experience is that prosecutors who attend believe that if they are going to seek death judgments, they should be ready to view the result of that decision. Thus, it is more akin to the performance of a duty, than a celebration. In fact, it is a pretty grim duty.

Your observations about the role of survivors and victims in the criminal justice system are puzzling ones. The criminal justice system, of course, stands in for the natural retributive impulses of victims and their survivors. Gregg v. Georgia discusses this at length. If victims and their survivors do not believe the criminal justice system is doing its job, that system will lose its legitimacy. In fact, the death penalty in California is not the product of the legislature, but of the People of California themselves who enacted it by the initiative process and retain the sole power to amend it by the voting process.

In this case, of course, the victims were people who were targeted because they actually did their duty as citizens as witnesses in a criminal prosecution. Bryon Schletewitz's sister told me that her brother was killed because he did the "right thing". I know she will never get over the murder of her brother, I also know she believes that Allen's execution was the just result.

Posted by: ward | Feb 15, 2007 1:07:54 PM

Again, without specifics you don’t have much of an argument. In fact, I think you base your views on what is found in the media, which is not really acceptable for a lawyer.

It may well be that a reversal is based on a change in the law, or a resolution of an ambiguous question. Since review is discretionary, it is questionable as to just how “wrong” a decision a decision was.

Along that lines, I wonder why nobody condemns the 4th for its Hamdi decision, which resulted in a 100% habeas reversal rate. Or, why not factor in all the unanimous Booker GVRs.

Posted by: S.cotus | Feb 15, 2007 1:11:10 PM


The date of the witness murders -- 25 years before Mr. Allen's execution at age 76 -- has me wondering. Had Mr. Allen ordered any murders since 1980? If not, is that attributable to his being placed in higher security after the murders of the witnesses? Was security too lax in 1980?

I'm sympathetic to your point, really, it's just that
you advocate a death sentence for killers whom the State knew were dangerous. That may be legit (for the sake of argument), but it seems the State has to provide effective, indeed excellent, security if it wants to make that argument. For example, doesn't the State record the phone conversations of such known killers?

I don't mean to say that Mr. Allen doesn't bear complete responsibility for the crime. He does, obviously. It just seems the State can't use these circumstances to justify an execution without unclean hands unless they actually try to prevent them. Mr. Allen was a known killer, after all.

Posted by: rothmatisseko | Feb 15, 2007 1:54:38 PM

well s.cotus, here's an AEDPA case in which the Supreme Court had to summarily reverse the Ninth . . . .

this is one of quite a few:


Posted by: federalist | Feb 15, 2007 4:08:52 PM

Scotus--Allen's own expert finally conceded during his deposition that there is no way the State could guarantee that Allen would not be able to communicate with the outside.

Posted by: ward | Feb 15, 2007 4:24:28 PM

Perhaps the article's author, the trial prosecutor, wrote the piece for free. But I kind of doubt it. Anyone have a problem with a prosecutor making money off his being witness to an execution he helped orchestrate? If prosecutors can get paid each time they help send a guy to death, don't they have a conflict of interest?

Posted by: A | Feb 15, 2007 5:21:47 PM

Ward, was that a response to my question? I don't see a s.cotus post it's responsive to.

Actually, I don't think it's responsive to my question. Of course a prisoner would be able to communicate with the outside. My question related to monitoring those communications and what's happened since 1980.

I'm asking whether it's necessary to kill him, not whether he can communicate. He hadn't ordered a hit in the last 25 years of his life, and according to the State he would do just that if not killed. An execution just doesn't seem necessary.

Posted by: rothmatisseko | Feb 15, 2007 6:14:38 PM

Clearly, executions are not necessary. So what? Isn't enough that the people have adopted this clearly constitutional punishment and that it was given to Allen. At some point, if you're going to have the death penalty, it should be enforced.

The really galling thing is that the Supreme Court, in its infinite wisdom, has eliminated mandatory death sentences for just these types of crimes, a fundamentally illegitimate and arrogant abuse of judicial power.

Posted by: federalist | Feb 15, 2007 7:10:06 PM

federalist says "Clearly, executions are not necessary."

I agree.

"So what?"

So Ward, opposing clemency, wrote Gov. Schwarzenegger that "Mr. Allen has shown that imprisonment is simply no guarantee of public security." Additionally, Gov. S. rejected clemency because

"Allen’s crimes to silence witnesses are the most dangerous sort because they attack the justice system itself. Further, contrary to Allen’s plea for clemency, the death penalty serves the dual purpose of retribution and deterrence in this case. The Ninth Circuit Court of Appeals concluded that 'if the death penalty is to serve any purpose at all, it is to prevent the very sort of murderous conduct for which Allen was convicted.'"

Sounds to me like his dangerousness was highly relevant to whether he needed to be put down.

As for deterrence of others, well, murderers aren't deterred by the death penalty. And in any case making an example of someone is not a legitimate reason to kill them. That's what Clarence Ray Allen did, and for that the State of California killed him, so as to make an example of him to all Californians that killing to make an example of someone is wrong. Wow.

"Isn't enough that the people have adopted this clearly constitutional punishment and that it was given to Allen."


Posted by: rothmatisseko | Feb 15, 2007 7:58:18 PM

How do you know that murderers aren't deterred by the death penalty. And the issue is not that Allen was deterred, but whether some murderers were.

And to equate cold-blooded murder with executions . . . . that's just juvenile. And of course, once again we have the old saw that we are killing people to show that killing is wrong. That trite statement is up there with "War is not healthy for children and other living things."

We execute people for any number of reasons, deterrence, incapacitance, but one of the biggies is that society simply does not have to tolerate the existence of a person who has so transgressed society's morays. By taking a murderer's life, we show just how dear we hold human life.

The world became a better place the instant Allen was removed from it.

Posted by: federalist | Feb 15, 2007 8:39:38 PM

Rothmatisseko-you are right, my last post was meant to be responsive to your point. There were, of course, a number of reasons that made the Allen case an appropriate one for capital punishment including the fact that he was a recidivist, that he had attacked the judicial system, and was a life prisoner when he conspired to take even more lives. There have already been some other comments on that, including the 9th Circuit's opinion. The amount of time it took to carry out the punishment in Allen's case, of course, says more about the nature of our judicial review system than it does about the degree of danger he posed. He had already demonstrated that and there was no reason to give him anymore chances as long as he lived and hoped that someday he might get a chance at a retrial or reduction in sentence.

Of course, the state sets an example with anything it does. By your logic, however, we should not arrest and imprison people for committing the crimes of kidnapping and false imprisonment because that sends the message that it is ok to kidnap and imprison people. Or perhaps we should not fine people or insist on restitution for theft cases because that sends the message that it is OK to forcibly take money or property from people. It is patronizing and condescending to argue that the lawful execution of people for murder sends the message that killing is OK. I think we have to give more credit to the intelligence of people than that. The example the state sets has to do with the consequences of one's actions.

Posted by: ward | Feb 15, 2007 11:03:37 PM

Life is not property and it's not liberty. Death is different.

It's easy to view liberty and property as waivable without viewing the punished as less than human. Not so with executions.

Executions send a message that some people are trash -- as illustrated by this thread. We should give ourselves (and the condemned) more credit than that.

Posted by: rothmatisseko | Feb 18, 2007 9:13:15 PM

Death is different. The crime of murder is different from robbery, kidnapping, and rape.

What is different is that the act of murder renders the victim less than human.

On the other hand, the process of lawful execution based on adjudication (with its procedures and protections) is based on society's recognition that the murderer is human.

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