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The legal community is choosing up sides in the acrimonious debate over a proposed statewide moratorium on the death penalty. A state prosecutors group met last week in Oakland to draft a “white paper” in support of the death penalty, which organizers hope will help counter groups that have convinced leaders across the state to endorse a call for a temporary ban on executions. So far, San Francisco and Marin counties as well as cities such as Oakland, Berkeley, East Palo Alto, Santa Cruz and West Hollywood have passed such resolutions. Los Angeles city leaders voted to study executions but asked a city committee to examine whether the city should endorse a ban. For now, the debate has been academic, since Gov. Gray Davis has said he opposes a moratorium. Plus, the symbolic resolutions don’t bar local prosecutors from seeking death or prevent juries from sending defendants to death row. However, activists say, the local votes will help build political momentum for a ballot measure to halt executions until a study on the death penalty’s “racial, economic and geographic disparities” is complete. Prosecutors say they want to clear up misinformation about the death penalty and said they oppose a moratorium. “There is absolutely no need for a moratorium,” said Larry Brown, executive director of the California District Attorneys’ Association. Kent Schiedegger, executive director of the Criminal Justice Legal Foundation, dismissed the moratorium resolutions as “publicity stunts.” The California District Attorneys’ Association contends the current system has so many safeguards that it typically takes 15 to 20 years after a death verdict before an inmate is executed. There have been only 10 executions since the death penalty was reinstated in 1977, said Brown. Plus, federal appellate courts have issued many reversals and been “openly hostile” to the death penalty. “California has a model system in terms of enforcing the death penalty,” said Brown, adding that California defendants get “super due process.” Alameda County District Attorney Thomas Orloff said standard complaints about the death penalty — that innocent people are executed and that there is a racial disparity among death row inmates — don’t apply in his county. “I challenge those who would say that those are problems in Alameda County,” said the DA. Nevertheless, the Alameda County Board of Supervisors is expected to vote on a moratorium resolution in January. And the debate has already been raging on local op-ed pages. Last month, former Alameda County Public Defender Jay Gaskill wrote an article for the Oakland Tribune saying he now supports the death penalty and arguing that it be expanded to anyone convicted of homicide who already has a prison record. His political switch shocked many former colleagues in the defense bar and prompted current Alameda County PD Diane Bellas to counter with an anti-death penalty article that was published in the same newspaper. Oakland criminal defense lawyer Gary Sirbu is playing a major role in leading efforts to lobby the Alameda County supervisors. Sirbu said that even though Orloff is cautious and judicious in choosing death penalty cases, most county murders are committed by poor people, so most county death row inmates are poor. And, he said, “the risk (that an innocent person could be executed) is statewide, and Alameda County is no exception.” Oakland police routinely interview homicide suspects off-tape, which experts have said may lead to problems like false confessions. There are also systemic problems with bad eyewitness identification and police line-ups, said Sirbu, who has represented a death row inmate for the past 15 years. He and other members of the Metropolitan Greater Oakland Democratic Club spearheaded the moratorium drive, which was eventually backed by a coalition of Democratic clubs and Supervisor Nate Miley. Miley’s office confirmed that he plans to propose the resolution during a Jan. 28 supervisors meeting. Sirbu said that he expects it to pass. “We think that we have the votes now.” Lance Lindsey, of Death Penalty Focus, the group that is organizing the statewide effort, said the resolutions, an ongoing petition drive and a planned poll will help build support for a ballot measure in 2004, 2006 or 2008. Many people who are unsure about the death penalty are willing to stop executions to study whether it is working, he said. Although the moratorium votes are symbolic, there’s no question that when the issue comes up it puts a spotlight on the local DA and his or her death penalty track record. Although Santa Clara District Attorney George Kennedy said he wasn’t motivated by his county’s vote in favor of a moratorium, he recently decided to publicize his office’s death penalty protocol. Among other things, it states that a committee of prosecutors will review such cases; the race of the defendants and victims is not disclosed to the committee; and death is not used as a bargaining chip. Orloff said he and the committee debate whether to seek special circumstances and whether the office will seek the death penalty. The office also seeks input from the defendant’s attorneys, then Orloff makes the ultimate decision. Contra Costa County DA Gary Yancey discusses possible death penalty cases with the chief deputy and homicide supervisor. Sometimes defense attorneys make a written or personal plea on a client’s behalf, but Yancey said he couldn’t remember a time when that changed his mind. “We are not too tough or too lenient,” Yancey said. “We are very consistent.”

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