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Gov. Gray Davis can instantly trim the state deficit by hundreds of millions of dollars with a few strokes of his ballpoint. All he has to do is commute every death sentence in California. Think of the savings in court costs and legal fees — not to mention the $200 million Davis is proposing to expand Death Row at San Quentin. Oh, and here’s an added bonus: It would be the just thing to do as well. Granted, justice on this issue seems a fantasy in California. Even in the week following Illinois Gov. George Ryan’s blanket commutation of death sentences in his state, top officials haven’t voiced a dollop of doubt about capital punishment in California. In fact, they’ve crowed about how the problems in Illinois couldn’t possibly happen here. California’s system, they argue, is festooned with safeguards that ensure innocent men and women won’t be executed. Really? Consider In Re Roberts, S071835, a sordid little tale of prison murder and inmate deceit, and the outrageous opinion just issued by the state Supreme Court in the case. Prosecutors relied on jailhouse testimony to send prisoner Larry Roberts to Death Row for the murder of a fellow inmate. But in 1999, after allegations of false testimony by the prisoners who fingered Roberts, the high court appointed a referee to determine whether prosecutors had knowingly offered perjured testimony and whether Roberts’ lawyer had bungled the case. The law is clear on how the high court is supposed to react to the referee’s decision: The court isn’t bound by it, but a referee’s word is to be given “great weight” if supported by substantial evidence. In his decision, the referee — a Solano County Superior Court judge — found that the prosecutor didn’t induce the inmates to lie, and Roberts’ lawyer provided effective assistance. Sounds reasonable. But the referee also found that the inmates who identified Roberts as the killer had lied. Without these lies, there is, Justice Joyce Kennard wrote, “reasonable probability the jury would not have convicted petitioner.” Yet a majority — led by Justice Carlos Moreno — seemed to have problems believing that the prisoners were genuine when they recanted their testimony. After all, can you really trust a convicted felon? It’s perfectly acceptable, however, to send a man to his death based upon suspect testimony from the same felons. As Kennard points out in a dissent, who better than the referee to determine factual issues, like the veracity of witness testimony? Citing a 1998 precedent, she writes, “We defer to the referee’s factual findings, especially those requiring resolution of testimonial conflicts and assessment of witnesses’ credibility because the referee had ‘the opportunity to observe the witnesses’ demeanor and manner of testifying.’” According to statistics by anti-death penalty groups, the California Supreme Court affirms more death sentences than its counterpart in Texas, the kingfish of government-funded killing. And given his opinion in Roberts, Moreno — the only Democratic appointee on the high court — seems unlikely to help stem the tide. In fact, only Chief Justice Ronald George joined Kennard in dissent. So it’s up to the governor to deal with the state’s system of capital punishment. While he seems categorically opposed to doing anything about the problems, maybe a crass fiscal appeal will move Davis to action. A moratorium on the death penalty will save a bit of money. And maybe, just maybe, it will spare us from more vile, unjust opinions like Roberts.

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