Thursday, December 29, 2005

Oregon's Death Penalty

OpEd in The Oregonian, Thursday, December 29, 2005

Many people have read columnist Steve Duin's five-part saga of the murder of Rod and Lois Houser and the thus-far 17-year voyage of their killer, Randy Guzek, through the legal system.

The Oregonian's editorial board expressed its own frustration over the irony that Guzek survives and is likely to for at least another decade or two. I have strong feelings on the case, having twice argued the death penalty for Guzek to Deschutes County jurors and want to respond to some of the letters and one commentary by William Long ("Facing the failings of our death penalty law," Dec. 16) on the case.

Long argues that life without parole should replace the death penalty as the ultimate sanction. But what would happen if we substituted "life" for "death"? If the past is any indication, we should expect more innocents to die. People will die at the hands of killers serving "life" whether they did their time and were released (Richard Marquette of Salem) or escaped (Carl Cletus Bowles of Eugene). I have no doubt that without the specter of death for some of the worst killers (like Edward Morris, who slaughtered his family in rural Tillamook County, and child-killer Ward Weaver) they would never have agreed to forgo a trial in return for a sentence of life without parole.

The resources and time invested in aggravated murder cases in which death was not a possibility is almost as great as capital cases. Oregon provides a very high level of defense for those indigents accused of murder, as it should. But to claim, as one letter writer did, that "if Guzek were a rich celebrity [he] would be a free man" is ridiculous. Guzek's guilt has never been questioned since a jury convicted him in 1988. He may not be a celebrity, but he has had and continues to receive the defense of a very rich man.

Another series of letters, some by sincerely dedicated foes of Oregon's death penalty, claim that capital punishment is neither a deterrent nor justice. Honest people can differ on the morality of the state-sanctioned taking of a killer's life, but recent studies from Emory University, the University of Colorado and several other academic institutions show that for every death penalty that is carried out, approximately 17 murders are deterred.

The research is so compelling that it has led progressive legal scholar Cass Sunstein of the University of Chicago to publish a provocative paper titled "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs." Sunstein argues that if we know with certainty that using capital punishment saves roughly 18 lives by preventing that many murders for each execution, how can we justify not employing the death penalty? The studies he relies on are conducted mostly by nonideological economists, one of whom even made a point of expressing his own dislike for capital punishment, believing it was racist.

No one has been released from Oregon's Death Row because anyone argued he was factually innocent. The racial composition of Oregon's Death Row mirrors the overwhelmingly white population of the state, while several of the victims of those on Death Row were people of color.

Oregon's prosecutors continue to be appropriately sparing in the number of times they seek the death penalty. Oregon juries are even more discriminating in when they impose it. It seems the one thing we can all agree on is that waiting 20 to 30 years for a killer to be punished is absurd.

Friday, December 23, 2005

Why Criminal Defense Attorneys Hate Josh, Part III

"Dealing with Jurors' Expertise"
Leonard Post
The National Law Journal [click link for printer friendly version]
December 23, 2005

As blanket occupational exemptions for jury duty become a relic, litigators are split on whether there's a need for specific jury instructions to keep jurors from relying on their expertise in evidentiary matters.

One court system -- New York's -- instructs professionals to keep their expertise outside jury rooms. No other court currently singles out professional jury-deliberation conduct in jury instructions.

The issue is pressing enough that jury researchers are completing a research project that will recommend several jury instructions to let jurors know how they can use and not abuse juror expertise, rather than simply admonish them to pretend they are blank slates.

Automatic exemptions from jury service for certain professionals have been removed from most state and federal courts over the last several years as a way to ensure that juries are drawn from more representative cross-sections of communities. Courts have found that it increases the number of people available for jury service and spreads out both the educational value and the burdens of jury service, which may include time, expense and lost income.


Litigators disagree on the latitude professionals should be given.

Roger Crane, a litigator in Nixon Peabody's New York office, said the instruction gives New York jurors permission to police violators.

"If a juror has applicable professional expertise and uses that expertise to make a new point in deliberations -- which may be wrong -- there is no ability by either side to respond to it," Crane said. "The result is that you have a verdict based on one juror's conclusion -- not 12."

He noted that New York's jury instruction "warns the other jurors to guard against somebody making an argument in support of a position based on their own particular expertise.

"As a practical matter, the jury instruction is the weapon the judge is giving the other jurors to blunt such arguments: 'The judge has said you're not supposed to do that. if you keep doing it we'll report you.' That's a powerful tool," Crane said.

But Alan Klein, a litigator at Philadelphia's Duane Morris whose practice is now mainly products liability defense, does not want jurors with occupational expertise to be singled out in a jury instruction.

"The general instruction about being fair and impartial and weighing the evidence against their life experiences is enough. I like having an intelligent jury. I've never attributed a verdict -- win or lose -- to a juror going over appropriate bounds."


Ira Raphaelson, a litigator in the Washington office of O'Melveny & Myers, said that "[w]e need to struggle to find a societal balance between the interests of having professionals serve on juries and the dangers that ... [they] may hijack the jury process with misinformation.

"Hopefully, judges can instruct jurors in a meaningful way that just because a doctor is sitting on a malpractice case doesn't mean that the doctor's evaluation of the facts should be given more deference than any other jurors, while at the same time not giving the doctor's view of the facts less deference than any other juror," Raphaelson said.

Few appeals courts have attempted to draw a line that defines the limits of experience jurors are allowed to bring to deliberations.

In 2000, New York's highest court overturned a conviction for criminally negligent homicide because two nurses on the jury shared their professional opinions about the effects of blood loss, a disputed material fact that had been the subject of expert testimony.

The New York Court of Appeals, in finding juror misconduct, said that "Other jurors are likely to defer to the ... expertise and evaluations by professional jurors, over and above their own everyday experiences, judgment and the adduced proofs at trial."

The court acknowledged the conundrum faced by professionals: separating life experience from expertise, and that "the personal mental processes" of jurors would not be subject to impeachment. However, it held that "the substitution of [jurors'] own professional opinions becomes fatal when shared with other jurors." People v. Maragh, 94 N.Y.2d 569.

At the behest of the Maragh court, both the New York state civil and criminal jury commissions drafted instructions that differentiated between ordinary and professional opinions.

Civil: "[Y]ou may not communicate any personal professional expertise."

Criminal: "[I]t would be wrong for you to rely on that special expertise to inject ... a fact not in evidence, or an opinion that could not be drawn ... without that special expertise."

Judge Leonard B. Austin of the Nassau County, N.Y., Supreme Court commercial division who is a member of the state civil jury commission, presided over a business dissolution case in which the lawyers allowed an accountant to sit on the jury.

"Why they left the accountant on I'll never know, but the lawyers were quite satisfied," Austin said. He added that if he were a juror, he'd try, but he's not sure if he could separate his professional knowledge from evidence he had heard in a business case.


Most jurors would find the New York mandate to separate professional from other experience impossible, said Shari Seidman Diamond, a professor at Northwestern University School of Law who is a specialist in juror conduct.

Diamond, a senior research fellow at the American Bar Foundation who is conducting a study on the role of professionals in jury rooms, has been the lead researcher in several studies that have mined data from videotapes of 50 real voir dires, civil jury trials and deliberations in Pima County, Ariz., from 1998 to 2001, as well as questionnaires given jurors and judges after the trials.

Diamond is currently looking at the tapes to observe the interplay of occupational and work expertise on those deliberations, and has found that 22 percent of the jurors had occupational or work experience backgrounds that related to evidence in their trials.

"Jurors are told they're supposed to use their experience and common sense -- that may include their professional training," said Diamond.

"Even if we say 'Forget your professional knowledge,' jurors couldn't do it and I don't think it's desirable," Diamond added. "The question is where the boundaries are. We can't ask them to do things that are psychologically impossible -- we ask them to do enough mental gymnastics.

"I think we can do better than we do now [in most state and federal courts], which is not to tell them anything," said Diamond, who expects that at the study's conclusion she will recommend an alternative approach: instructing jurors how to deal more realistically with juror expertise and experience.


California's high court saw its first occupational juror misconduct case in 1990, but found the error harmless.

In a capital case, a law enforcement officer told his fellow jurors that just because there was no evidence presented in the trial's penalty phase that the defendant had a juvenile record didn't mean he didn't have one, because juvenile records are sealed.

In fact, the court said, as a matter of law, juvenile records are not sealed for penalty-phase purposes. People v. Marshall, 50 Cal. 3d 907.

In California, juror expertise is covered in a general instruction, but with far less emphasis than New York's.

Wisconsin Circuit Court Judge Gary Carlson said jurors are told that they "may take into account their experiences in the affairs of life." He takes that to include anything they might know, including any particular expertise.

"Lawyers who allow a juror with professional expertise on a jury in a case that involves that expertise ought to have to live with the results," said Carlson.

"I would not give a special jury instruction because I would not want to single out a juror. 'Juror X, you may know things, but forget about them.' You'd be highlighting the issue," he said. "That juror may now feel compelled to bend over backwards one way or another.

"We don't want idiots ... . We want intelligent jurors who deduce facts and come to conclusions from everything they've come to know in life: background, knowledge, experience. I don't think we expect professional people to do any less. Why would we?"

Carlson differentiates between weighing the credibility of testimony they've heard and giving testimony.

"The trajectory of a bullet, for example, bouncing off this organ and that. 'You're a doctor,' a juror might say to another. 'Is that the way it works?' 'No,' the doctor says. 'The spleen's on this side, not that side. It couldn't happen that way.' That's a credibility issue," Carlson said by way of example.

In post-verdict discussions in a medical malpractice case, a juror who was an emergency medical technician volunteered to other researchers that he knew from his medical experience that the defendant doctor had caused a permanent limp by his improper treatment of a fracture.

"But what if his knowledge had come from a personal experience, say that his brother had had?" asked Tom Munsterman, the director of the Center for Jury Studies of the National Center for State Courts. "Could he have used his experience in that circumstance?"

Munsterman suggested that the fix might lie in allowing jurors to ask questions, which more and more courts allow.

"The EMT could have asked the expert why the doctor had chosen that course of treatment," he said.

In addition, Munsterman said, research has shown that juries are "very good at self-policing," deciding whether a particular discussion is allowed.


Oregon has never had occupational exemptions, said Clatsop County District Attorney Joshua Marquis, who co-chairs the capital litigation committee of the National District Attorneys Association and is the association's vice president. That's fine with him.

"We want representatives of the community, not just retirees, government employees and people who work for huge corporations. We pay such crap," he said. He likes doctors, EMTs and nurses in particular.

"They tend to be practical people who know bullshit when they see it," said Marquis.

But he eschews lawyers who "cannot resist the temptation to insert themselves as litigators, especially if they weren't litigators."

He noted that the only murder case he'd ever lost had a lawyer on the jury.

"They're terrible jurors -- I should hit myself in the face with a stick if I ever let a lawyer on a jury again."

Marquis said he doesn't see how a jury instruction on the use of expertise would effect a cure.

further reading:
Part I
Part II
Part IV

Tidings of Comfort and Joy

In my line of work we see people at the very worst times of their lives.

Most of the time they never want to remember the terrible days they spent being interviewed and then cross-examined in court. At best we bring a little justice into their lives, but never “closure.”

My office has 17 employees -- five deputy district attorneys and twelve legal assistants and victim assistants who handle literally dozens of cases each day. People who visit the office are usually astounded at the sheer ferocity of the work as we are pushed at one end by the criminals and the cops who arrest them, and at the other by the court system setting cases every 20 minutes.

A few years ago I decided to gift a polo shirt to each new employee. They are dark blue with the gold seal of the Office of the District Attorney embroidered over the heart. Like many businesses we observe “casual Fridays” for those who don’t have to appear in court, and it drives the defense lawyers crazy to see a dozen staffers decked out in the blue and gold colors of the State of Oregon.

the Badge
This year I shared with my staff a letter I received a few years ago from a woman I admit to having long forgotten. They are the worker bees who do the daily work that makes a difference in so many ways great and deceptively minor.

The letter is from a victim of serious domestic violence who wrote that she “was a forgiving victim and did my best to convince you not to pursue the case.” I had insisted on going ahead with the prosecution, as a prosecutor often must in domestic violence cases.

She went on to say, “I want to let you know that you did me an enormous favor. . . . I’ll never forget what you said. . .and how one day he would kill me if he was not stopped.” She wrote that she had gotten a restraining order, a divorce, and had a rewarding career as a legal assistant with an attorney, and “was happier than ever.” She ended by saying that “People who know how horrible things were before ask me what made me finally get out, and I think it began with you. Thank you for caring. I just wanted to let you know that you made a difference.”

I know my staff often feels like Sisyphus eternally rolling the rock up the hill. So, it may be corny but I often remind myself and others of the story of the two kids walking down a beach after a very high tide that has washed thousands of starfish onto the beach. Every few feet one kid reaches down, picks up a squirming starfish and throws it back into the ocean.

His friend says “Why are you wasting your time? There are so many. You can’t make a difference.”

The first kid reaches down, picks up a starfish, throws it back into the water and says :

“It matters to this one.”

In this season, please extend a wish to the many unsung men and women working in thousands of prosecutors' offices across America “And with true love and brotherhood each other now embrace.”

And to SSgt Joshua Marquis (no relation), stationed in Baghdad defending the Iraqis' right to try Saddam Hussein for crimes against humanity, write him and send him a prayer: "For Peace on Earth, good will towards men.”

So, in ways large and small: Tidings of Comfort and Joy in a sometimes cruel world.

(NOTE: Check back after Christmas for a major rant on the criminal defense lovefest called “Injustice” that starts as a mid-season replacement on ABC-TV. The press release tells us these lawyers “Focus on cases where justice runs amok, cases in which an innocent person has been wrongly convicted of a crime.” Never mind that defense lawyers who represent only innocent clients would starve in about a week.)

Monday, December 19, 2005

Vanity Fair Goes Over the Top

While I'll never be able to afford 95% of what is advertised in what can only be called the "National Enquirer for the Upper Class," I always enjoy reading the remarkable writings of Christoper Hitchens, Dominick Dunne, and Buzz Bissinger in Vanity Fair.

But in the January 2006 issue of VF (whose cover features Naomi Watts as a Vargas Girl) there is a "Postscript" on page 44 that is an ode to former Gozno journalist Hunter Thompson, who took his own life in February of 2005. In an article at times rambling and incoherent entitled "The Prisoner of Denver," published in 2004 in VF, Thompson took on the cause of Lisl Auman, Lisl Auman
another pretty white person convicted of a serious crime. Auman was doing life for being an accomplice to the 1997 murder of Denver police officer Bruce VanderJagt.

Thompson, who was the poet laureate (I'm not making that up) of the National Association of Criminal Defense Attorneys, worked himself into his usual frenzy:
The NACDL brings a heavyweight presence to this case that will quickly level the playing field. Nobody needs a public fight with a team of Elite warriors from the NACDL. It will be like having to fight Joe Frazier every day for six months. There will be injuries, and there will be more than one trip to the Emergency Room this time. No more easy wins for the black hats. The worm is about to turn. That is also a good early bet. Take my word for it.
Although VF makes much of the fact that such legal luminaries as Sean Penn, Benicio Del Toro and Johnny Depp joined Thompson in his quest to free Auman, the actual facts are -- as always -- a little more nuanced than the Hollywood version. In as short a form as possible, here they are:

In 1997, Auman was 21-years old and recruited skinhead and major criminal Mark Jaehnig to burglarize the home of an ex-boyfriend. The burglary went bad and Auman and Jaehnig fled in a car chase complete with a gun battle with police that topped 100 mph. At some point the car stopped. Auman was arrested, refused to help police and shortly thereafter Jaehnig shot Officer VanderJagt before killing himself.

Much is made of the fact that Auman was in police custody when the actual murder took place. Still unanswered is what exactly Auman was doing while Jaehnig organized his arsenal of weapons and fired on police.

A lot of ink and bandwith and has been used to blast what critics have called the medieval law of "felony murder," where a person knowingly involved in a serious felony that results in the death of another is guilty of murder. Far from being some weird anachronism, the felony murder statute is part of most states' criminal codes -- and for good reason. The getaway driver who speeds the bank robber from the scene where a bank guard is shot dead is guilty of the crime, if not exactly to the same degree.

It may well have been that the life without parole sentence Auman received was too harsh. But when the Colorado Supreme Court overturned her conviction and sent it back for retrial it was not because of any defect in the felony murder law. Like so many other reversals heralded by defense lawyers and their supporters, it was on a jury instruction issue.

The name that never appears in VF's postscript is that of Bruce VanderJagt, the 47-year-old father who was also a psychologist. Instead would have its readers believe that Auman’s "unjust conviction" has now been overturned and that she will soon be "completely free from incarceration."

Like so many of those heralded by the glitterati as "exonerated", what Auman actually did was take an offer to plead guilty to Accessory to Murder and Burglary which resulted in her prison sentence being slashed. She was released to a halfway house in October of 2005. Officer VanderJagt's widow supported the deal since Auman finally has accepted some responsibility for the officer's death.

While Auman will walk free soon, a heroine to the NACDL, she will never be able to leave behind both her legal and moral responsibility for the death of a good man, Bruce VanderJagt.Bruce VanderJagt

Monday, December 12, 2005

For select few, death is just

For select few, death is just
Many newspapers have noted that we recently passed a milestone: the 1,000th execution of a murderer since the Supreme Court reauthorized the death penalty in 1976. What is not noted, and certainly not named, are the nearly 500,000 victims of murder since that same year. (Related: Our view)
Capital punishment is an extreme sanction that is properly reserved for the worst of the worst: the Ted Bundys, the John Wayne Gacys, the Timothy McVeighs. Yet few people can recall the name of a single murder victim. The fact that one in 500 murderers receives the death penalty underlines the appropriate rarity with which it is used.
Over the past decade, the violent crime rate — and, more significant, the rate of murder — has dropped dramatically. Several recent academic studies show a clear deterrent effect from judicious use of this extreme sanction. The goal should not be abolition but greater discrimination in its use.
A consistent majority of Americans, from blue states and red, Democrats and Republicans, support the availability of capital punishment. While there is a valid moral argument against it, claims that it is racist and that killers get lousy lawyers are largely urban myths. While a black man is seven times more likely to be murdered than a white man, almost twice as many whites are executed. Many states, such as Oregon, spend hundreds of thousands of dollars defending each killer charged with capital murder.
Some claim life without parole is an adequate substitute. What they fail to note are the people, both inside and outside prison, who die at the hands of convicted murderers. Nor do they seem to comprehend that the only reason many terrible murders are resolved with a plea to a "true life sentence" is the specter of a possible death sentence.
Opponents claim the death penalty is arbitrary. So is homicide. Thus, each case must be examined individually, first by a prosecutor, then by a jury in two phases, then by more than a decade (on average) of appeals.
We all agree: 10 guilty men should go free to prevent one innocent from being wrongly convicted. But how about 10,000 guilty, or 100,000, going free? How many victims become too many? What do we say to the victims of killers like Kenneth McDuff, Robert Massie or Carl Cletus Bowles, all murderers doing life who got out and killed again?

At the Supreme Court

Mrs. Van Rysselberghe, me, Judge Pierre Van Rysselberghe (the judge who presided over Guzek 3), outside the courtroom at the Supreme Court.

Saturday, December 10, 2005

Supreme Court report

from The Daily Astorian
Friday, December 9, 2005

Supreme Court visit has local prosecutor in awe of the law
High court hears appeal in Oregon death penalty case

For The Daily Astorian

On Wednesday, Clatsop County District Attorney Joshua Marquis was admitted to the Bar of the U.S. Supreme Court. Here is his report from the nation’s capital.

WASHINGTON — Wednesday morning was not my first time in the nation’s capital, nor in the Supreme Court building. Until that day, however, I had never gone farther than the gift shop and down to the basement to pick up an application for admission to the Bar of the Supreme Court.

When I entered the chamber of the Supreme Court of the United States, I was immediately struck by its surprising intimacy.

Make no mistake, the architectural grandeur of the 70-year-old building broadcasts the message that this is the high temple of American justice. I could not help but be awed when a bell sounded after the courtroom was packed with lawyers, guests and spectators, and the Marshal of the Court called out: “Oyez! Oyez! The honorable Justices of the Supreme Court are now in session. Draw near and you shall be heard.”

Dark red curtains parted, and all nine justices emerged simultaneously.

I was in the courtroom for two reasons. I would be admitted to the Bar of the Supreme Court, and I was there to hear arguments concerning a case I had prosecuted decades ago.

My brief moment was right after court opened. Oregon Attorney General Hardy Myers approached the podium and asked, using carefully scripted words, to consider “Joshua Kai Marquis of the Bar of Oregon for admission to this Court.” I was then directed to stand, and the Chief Justice of the United States looked directly at me, smiled and said, “Mr. Marquis, you are admitted.”

It was a heady moment and truly an honor, as it is unlikely I will ever personally argue a case before the Supreme Court.

The Guzek case – again
The case that brought me to the American temple of justice has deep roots.

In 1987, Randy Guzek murdered Rod and Lois Houser in their remote home in Central Oregon. In 1988, Guzek was found guilty and sentenced to death. In 1990, the Oregon Supreme Court threw out all then-existing Oregon death sentences, and in 1991 I was the trial prosecutor for what became known in the odd idiom of law as “Guzek 2.”

The jury again sentenced Guzek to death and a few years later the Oregon Supreme Court reversed the death sentence, on the sole ground that the trial judge should not have permitted the victims’ family from briefly telling the jury what the Housers were like.

In 1997, at the request of the victims’ family, I returned to Bend for two months as a special prosecutor. A jury sentenced Guzek to death again, this time after deliberating less than two hours. A couple of years later, the Oregon Supreme Court overturned “Guzek 3,” primarily on the grounds that he should have been considered for life without parole, a sentence that did not exist when he committed his crimes.

The Oregon Attorney General’s Office filed for a writ of certiorari which was granted and set for oral arguments in Washington, D.C., on Pearl Harbor Day.

Singular attention
Of the thousands of appeals to the Supreme Court each year, less than 100 are granted review (known as certiorari), and of those only a handful are scheduled for oral arguments, earning their lawyers a trip to the most important courtroom in America. In those few cases, each side gets exactly 30 minutes.

On either side of a podium, there are three chairs for each side. On the desk in front of each chair is a goose quill pen waiting for ink wells that have been gone for more than a century. In the Guzek case, one of the prosecution’s chairs was taken up by a deputy solicitor general of the U.S. Justice Department, who wore a formal tailcoat.

There are two lights on the podium from which the lawyers address the court. The white one is lit when time is almost up. When the red light comes on, attorneys are expected to stop – in mid-sentence if necessary. Unlike on television, the criminal defendants are not present.

I am a trial lawyer, not an appellate litigator, so it takes a special restraint to sit 20 feet away as appellate counsel and the nine Justices discuss a case into which I’ve poured my heart and soul for a decade. Yet, as Oregon Solicitor General Mary Williams was interrupted almost immediately into her argument, I was instantly grateful that my role was limited to that of observer.

I was concerned that Williams was being peppered with questions that seemed to ask “What are we doing here?” but she had deft responses to all of the justices’ pointed questions.

Then the chief appeals lawyer for Guzek, Richard Wolf, stood to defend the decision of the Oregon Supreme Court. Any worry I had quickly vanished as one justice after another besieged Wolf with even tougher questions. One national reporter described Chief Justice John Roberts as “incredulous.” Justice Steve Bryer, a member of the court’s four-person liberal block and known as a critic of the death penalty, pounced on Wolf with demands about what would happen at “Guzek 4” if the high court agreed with him.

“I want a ‘yes’ or ‘no’ answer,” Breyer finally demanded.

I actually felt sorry for Wolf, particularly after a seasoned Supreme Court reporter for a national newspaper told me he had rarely seen counsel take such a beating.

Of course, the justices could still vote his way. They meet in secret to decide cases but, unlike other appeals courts, they always return with a decision within the term they hear the case.

Earnest respect
For the hour we were in court all traces of rancor that often exist in the trial court were gone, replaced by an earnest respect for the law. And, as solemn as the subject and serious the proceedings, the judges don’t hesitate to laugh. It was surprising to see arch-conservative Justice Clarence Thomas chatting up his neighbor, Justice Breyer.

And there is the solid reminder of my own oath of office, chiseled in marble : “A Nation of laws, not men.” It should not matter who wears the robe or sits as district attorney, the law should be equally applied to all, without fear or favor, or promise of reward.

I’ve tried hundreds of cases, from shoplifting to aggravated murder, and I cannot but be moved by the dignity and civility of this elaborate ballet of American justice.

Sunday, December 4, 2005

Karma Comes Around For Tookie

UPDATE: Oregonian columnist Steve Duin begins a five-part series today on the story behind the cold-blooded murders of Terrebonne residents Rod and Lois Hauser, in 1987, by Randy Guzek. Guzek has been sentenced to death by threer separate juries, for the last two of which I served as prosecutor. Guzek's latest appeal has made it to the Supreme Court. On Wednesday the Supremes will consider whether alibi testimony which Guzek has never previously submitted could have been admitted during the sentencing phase. Remember, this is three trials -- 36 jurors -- later that Guzek's trying to say he wasn't there. I'm very honored to be able to be admitted to the Supreme Court Bar on Wednesday and to be in court during the brief, and to be there bearing witness for Rod and Lois Houser.

Here's my OpEd in today's LA Times. The editors chose the title, which makes it seem as if I think all murders should be executed. I don't. ::::::::

He's A Murderer. He Should Die.
By Joshua Marquis
district attorney of Clatsop County, Ore., is vice president of the National District Attorneys Assn. and coauthor of "Debating the Death Penalty."

There are heartfelt moral and religious reasons to oppose capital punishment, but holding up Stanley Tookie Williams as a symbol of redemption is absurd and obscene.

It is especially offensive to his victims' families, whose names the celebrities championing his cause probably don't know. News coverage rarely mentions Albert Owens or the Yang family, all gunned down by Williams in a series of crimes in 1979. The Crips' reputed co-founder also bears moral responsibility for the deaths of countless young black men.

Williams told the BBC in a 2003 interview that his imprisonment is the result of "bad karma." He is more right than he probably intended. Karma is the consequence of choices freely made. Williams chose death for a lot of people, without justice, without appeal, without consideration of anything other than his totalitarian goals.

Stripped of his celebrity, Williams isn't much different from the more than 600 men on California's death row. He killed multiple victims, he has never taken responsibility for his crimes, and he has had decades to fight his death sentence.

Not only did he brag to his brother about the dying anguish of Owens, but after slaughtering the Yang family, he boasted to fellow gang members he had killed "some buddhaheads." His true distinction comes only in his possibly being the second African American among the 12 people the state of California has executed in the last 35 years.

According to a Gallup poll in May, nearly 75% of Americans support capital punishment for murderers. There are some murderers so heinous and so evil that removing them is the measure of the severity of their violation of the social contract. Williams qualifies.

Religious, artistic and academic elites that most vociferously oppose capital punishment are the least affected by violent crime. They invariably avoid discussion of the toll homicide takes on victims, their survivors and the communities hardest hit by murder — people of color and the poor. A black man in the United States is seven times more likely to be a victim of homicide than a white man.

So what makes Williams deserving of the extraordinary benefit of commutation? We are asked to believe that because he has coauthored some children's books he has "reformed." Yet he refuses to do what we morally and legally expect even from shoplifters: to express remorse for his actions. His true legacy may lie with his children. His namesake, Stanley Williams Jr., is doing time in another California prison for second-degree murder.

Williams claims he discourages kids from getting involved in gang life, yet a San Quentin official recently suggested that he still orchestrates gang activity outside the prison, according to an Associated Press story.

In his 2004 memoir, he refused to back off the code against "snitching," in which identifying a drive-by shooter is considered a worse sin than shooting a 4-year-old in the head with a Tech-9.

The clamor for Williams' clemency may persuade Gov. Arnold Schwarzenegger to dispense mercy to him, something Williams never gave Owens, the Yangs or any of the thousands of people the Crips have killed, maimed or terrorized.

But clemency for Williams will not advance serious discussion of the merits of capital punishment. Nor will it succeed in silencing the distant voices of the victims who never make the headlines except as a footnote to the saga of a gang lord adopted by the glitterati.

Williams' case recalls that of Norman Mailer and his friends, who "adopted" killer/writer Jack Henry Abbott. After Mailer and others secured his release from prison, Abbott stabbed and killed a young aspiring actor.

If his sentence is commuted, Williams will be an even shinier icon to the thugs who follow his example into violence and incarceration. He will roam in the general prison population, while his disciples stalk California's streets and malls.