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For a death penalty case, People v. Belmontes is surprisingly uncontentious. Some 45 judges have reviewed the case on appeal or habeas corpus, and not one of them disputes that Fernando Belmontes beat Steacy McConnell to death by hitting her in the head 15-20 times with an iron bar during a burglary of the young woman’s home. Nevertheless, 24 years after the murder, the courts are still wrestling with whether Belmontes deserves to be executed. To put the passage of time in perspective, all seven California Supreme Court justices who affirmed Belmontes’ sentence have retired or died. The trial judge who presided over the case retired in 1995, and last year was elected president of the Northern California Golf Association. Belmontes, now 45, has spent more than half his life on death row. The appellate lawyer who has been representing Belmontes for some 20 years, Eric Multhaup of Mill Valley, deserves a medal for his tenacity on the case. McConnell’s parents, meanwhile, deserve extraordinary reward in the afterlife. They’ve resigned themselves to never seeing their daughter’s killer executed in this one � even after the highest court in the land upheld Belmontes’ death sentence just last month. “It’s like a ball game,” Mary Ellen McConnell told the Lodi News-Sentinel. “How long is it going to go back and forth?” Unfortunately, a quarter-century now seems to be the industry standard for processing death row appeals in California. More than 100 death row inmates have been calling San Quentin home for 20 years or longer. Douglas Stankewitz and Lavell Frierson marked their 28th anniversaries earlier this year, according to state records. Syndicated columnist George F. Will recently blamed the delay in Belmontes’ case squarely on Ninth Circuit Judge Stephen Reinhardt, who has twice written opinions blocking his execution. But the excessive delay is about more than one judge, and more than one inmate. Instead, the delay is rooted in the profound ambivalence Californians are feeling about the death penalty. There simply is no longer a consensus in this state � not among its citizens, not among its politicians and, therefore, not among its judges � for killing the likes of Fernando Belmontes. If there were, he’d have been put to death long ago. Compared to most capital litigation, both the crime and the legal issues in People v. Belmontes are simple and straightforward. On March 15, 1981, Belmontes and two friends burglarized the home of an acquaintance, McConnell. When they found her inside, Belmontes savagely beat her to death. He and his friends then stole her stereo, fencing it for $100. Belmontes was sentenced to death the following year. The direct appeal took six years to work its way through the California Supreme Court � lightning speed by today’s standards. But it has become bogged down on federal habeas corpus review � bouncing from a magistrate judge, to a district judge, back to the magistrate, back to the district judge, to a three-judge panel of the Ninth Circuit U.S. Court of Appeals, to an en banc Ninth Circuit (denial of review with published dissent), to the U.S. Supreme Court, back to the three-judge Ninth Circuit panel, to the en banc court again (denial of review with another, new published dissent), and then back to the U.S. Supreme Court. On Nov. 13 the high court reversed the Ninth Circuit on a 5-4 vote and reinstated Belmontes’ death sentence. That means nothing stands between him and execution any longer � except the federal litigation over the constitutionality of lethal injection. And who knows when that will be resolved. Belmontes has raised issues about his trial counsel, about the deal a co-defendant received for testifying, and about the racial makeup of the jury pool. But not a single judge has found any merit to them � the evidence of guilt is exceptionally solid. And because the murder took place during a burglary, the special circumstances that make the case death-eligible were clearly present. So the only meaningful issue on appeal has been whether the jury properly found that the aggravating circumstances of the crime outweighed the mitigating circumstances. Answering that simple question has taken 24 years. Belmontes’ argument at the penalty phase of his trial was that he had demonstrated good behavior while previously housed in the California Youth Authority. A CYA prison chaplain and other witnesses testified that he could make a positive contribution to prison life at San Quentin. But it was unclear at the time of the trial whether jurors could consider that evidence. In instructing the jury, Judge William Giffen focused on the specific statutory factors for aggravation and mitigation. At times he suggested jurors could consider additional evidence � such as the character evidence Belmontes was advancing � but at other times he implied they could not. At least one juror expressed mild confusion. A year later, the California Supreme Court would clarify that jurors must consider any mitigating evidence presented by a capital defendant, and the U.S. Supreme Court would hold similarly in 1986. But by then Belmontes was sitting on death row. The California Supreme Court unanimously affirmed Belmontes’ sentence in 1988. But the Ninth Circuit has balked. Judges Reinhardt and Richard Paez have twice blocked Belmontes’ execution. Each ruling has been followed by an en banc call, with only eight of the 26 active members of the court calling for further review. Conservatives Alex Kozinski, Pamela Rymer and Richard Clifton have been among those with no apparent objection to Reinhardt’s rulings. On Nov. 13, the Supreme Court put the issue to rest, though not without its own fight. In a 5-4 ruling, Justice Anthony Kennedy wrote that because Judge Giffen allowed Belmontes to put on so much character evidence, the jurors must have known they could consider it. “It is improbable the jurors believed that the parties were engaging in an exercise in futility when respondent presented � his mitigating evidence in open court,” Kennedy wrote. In impassioned dissent, Justice John Paul Stevens argued that “confusion pervaded every aspect of [Belmontes'] sentencing hearing. It addled the trial judge, the prosecutor, defense counsel, and � inevitably � the jurors themselves.” Both sides make powerful arguments. But answering this question should not have taken 24 years. For capital habeas litigation, this is a simple case. There has never, for example, been an evidentiary hearing ordered during the 14-year federal process. But the never-ending struggle with this case isn’t really about instructional error. It’s about ambivalence. This case isn’t getting decided because the people, as a whole, don’t want a decision, and that ambivalence is filtering down to the judiciary. A majority of Californians still support the death penalty, but the majority is shrinking, from upward of 80 percent in the 1980s to 63 percent earlier this year, according to a Field Poll. Significantly, only 48 percent believe that when the death penalty is imposed it is fair and free of error. Last month, Californians overwhelmingly elected an attorney general, Jerry Brown, who is personally opposed to the death penalty, but has pledged to enforce it. Gov. Arnold Schwarzenegger has acknowledged conflicting feelings about the death penalty, describing his “ Austrian brain [and] American brain � fighting with each other all the time.” Instead of fighting about the issue, however, Californians are avoiding it. The state has become like a couple that stays together for decades in an unhappy marriage rather than face and resolve its issues. And so death penalty cases drag on for a quarter of a century without resolution. The ambivalence is most pronounced in cases like Belmontes’. As Reinhardt pointed out in one of the many opinions in the case, his murder “was not pre-planned, nor did it involve kidnapping, rape, torture, multiple victims, or any of the other especially heinous elements that usually are present when a jury votes for the ultimate penalty.” Californians would be much better off if the state focused the death penalty on the absolute worst killers � the Richard Ramirezes and Charles Ngs. The consensus for capital punishment is much stronger around serial or mass murderers who terrorized their victims. Public support simply isn’t there any longer for routine murder cases like Belmontes’. If we keep arguing over them, we’ll soon have inmates marking three decades on death row, making a mockery of the justice system, causing gratuitous pain for both the victims’ and the inmates’ friends and loved ones, and generating enormous expense for California taxpayers. And we’ll regularly endure the international humiliation of executing septuagenarian inmates, as happened earlier this year with 76-year-old Clarence Ray Allen. In closing arguments 24 years ago, Belmontes’ trial counsel implored the jury to spare his client’s life because “who knows in 20, 30, 40, 50 years what sorts of things he can do, as he fits into the system?” Thanks to California’s broken-down death penalty machinery, it appears he’s going to find out after all.

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