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The Santa Clara County district attorney has gone public with a written list of procedures for his prosecutors to use when seeking the death penalty — a move that follows growing local criticism of capital punishment and recent snafus by the office involving a trio of criminal cases. The so-called capital case protocol is already standard practice for District Attorney George Kennedy and his deputies, but Kennedy said he wanted it on paper as part of an ongoing move to formalize office policies and minimize inconsistencies. “We are looking at our decision-making in a lot of areas and this is one that when you look at it, I could see it could be formalized a bit more,” Kennedy said. “People have a right to understand how we make these decisions and you can understand it more if it’s in writing.” But defense attorneys are wary of a provision that would allow defense lawyers to present evidence to a panel of prosecutors on why the DA shouldn’t seek death. “If you do that, to some degree or another you are showing your cards in a manner that may be more than what they are entitled to,” said Francis Cavagnaro, Santa Clara County deputy public defender and homicide supervisor. “You have to judge if there is a sufficient chance of affecting their decision to do that.” The protocol also comes amid a growing local and national sentiment that factors other than justice affect death penalty cases. Politicians ranging from the governor of Illinois down to Santa Clara supervisors have expressed doubt about the fairness of the death penalty. In October 2001, the board of supervisors approved a resolution supporting a moratorium on executions in California to examine fairness and effectiveness of the system. Kennedy spoke out against the moratorium, calling it “baloney” and saying that there were no unanswered questions surrounding capital punishment because “they’d been litigated to death by creative zealots.” Kennedy says the board’s vote wasn’t a catalyst: “That wasn’t something that was in my mind when I decided to formalize it,” he said. “It’s more just examining our decision-making in all areas.” The supervisors’ 4-1 vote was largely symbolic and hasn’t stopped Kennedy from seeking the death penalty. By putting the office policy on capital punishment in writing, the DA may also help blunt criticism that his office doesn’t always act reasonably on criminal cases. The DA’s internal policymaking practices were called into question over the summer when in separate sexual assault cases defendants were exonerated after DNA evidence proved they were not the attackers. Kennedy has not released any formal finding in those cases, largely because one of the defendants’ families is suing, but offered the death penalty protocol as proof that his office is not acting arbitrarily. According to the DA’s office, Santa Clara County had 37 criminal defendants with special circumstances from 1997 to 2001. Prosecutors sought death in 10 instances, and juries sentenced five to death. There are currently six pending death-eligible cases, including a decade-old conviction kicked back to trial by the Ninth Circuit U.S. Court of Appeals. The two-page protocol list formalizes the DA’s 11-member death penalty review committee as Kennedy, Chief Assistant Paula Kuty, Supervising Assistant DA Karyn Sinunu, four office supervisors, a community prosecutor, the chief trial deputy and two members of the homicide team. The committee will determine whether a capital conviction is feasible. “If the jury is going to come back with death in Santa Clara County, we do it,” Kennedy said. “If it’s clear that they aren’t, we are not going to waste the taxpayers’ money.” According to the protocol, the DA will make a reasonable effort to consult with the family of the victim about seeking the death penalty. “There is no veto, but of course, I give their views great weight,” Kennedy said. The DA’s committee will not know the race of the defendants while deciding to seek death unless relevant to the case and will allow defense attorneys to present evidence why the death penalty should not be sought. Alameda County prosecutors let the defense make similar presentations, and Contra Costa County DA-elect Bob Kochly said last month he is considering a similar procedure. The policy leaves the DA much latitude, stating that “any quorum requirement will be at the discretion of the members of the committee.” The protocol states that “no attorney may threaten to seek [the death penalty] solely for the purpose of obtaining a more advantageous negotiating position.” And once a decision not to seek death is made, it will be irrevocable unless the defendant escapes from custody, commits a violent crime, or prosecutors discover evidence of a “heinous or serious” crime. Defense counsel will be notified in writing of the DA’s decision to seek death under the protocol. Deputy Public Defender Cavagnaro said the protocol presents no surprises. “We are generally aware of who the major players are in terms of policy decisions,” he said. “This is certainly what one would expect from them — reasonably and appropriately sounding language. It’s always helpful to have something in writing to look at and show to them and say, ‘Hey, this is how you are saying you are doing it.’” Assistant DA David Davies, who supervises the homicide team until he retires at the end of December, agrees the protocol is not a policy change. But he says it’s about ensuring “there isn’t anything arbitrary about the application of the law.” “It’s in line with a lot of things we have done in the last few years of developing and writing policies and procedures. This is a good thing to formalize,” Davies said. “I don’t think we’ve had anyone attacking the process we have set up.”

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