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Execution moratorium raises question of reducing some of those sentences

San Francisco Chronicle logo San Francisco Chronicle 11/28/2021 By Bob Egelko
A guard walks on a catwalk on Death Row at San Quentin State Prison in 2015. A federal judge says it’s time for the state to consider reducing some death sentences to life in prison. © Michael Macor / The Chronicle 2015

A guard walks on a catwalk on Death Row at San Quentin State Prison in 2015. A federal judge says it’s time for the state to consider reducing some death sentences to life in prison.

California, with 697 inmates on the nation’s largest Death Row, has not executed anyone since January 2006, and will not execute anyone under Gov. Gavin Newsom, who has declared a moratorium and dismantled the San Quentin death chamber. Now, a federal judge in the case of a Bay Area man who was sentenced to death almost 34 years ago says it’s time for the state to face reality and consider reducing at least some death sentences to life in prison.

“Litigating this case is ... the equivalent of flushing massive amounts of taxpayer money down the toilet,” U.S. District Judge Vince Chhabria of San Francisco said in a brief order Oct. 12 in the case of Michael S. Hill. He rejected Hill’s request to order an immediate conference on a potential settlement of the case but said it could be renewed in the future.

Hill, now 66, was convicted and sentenced to death for fatally shooting Anthony Brice and his 4-year-old son, Anthony Brice Jr., during a robbery of Brice’s East Oakland jewelry store in August 1985. Hill has denied guilt and blamed another participant in the robbery, the now-deceased Michael McCray. And, as Chhabria noted, evidence has surfaced that prosecutors at Hill’s trial withheld evidence of their promise not to prosecute McCray, the main issue in Hill’s current attempt to overturn his conviction and sentence.

“It is almost certain that, no matter how this death penalty litigation turns out, Hill will never be executed,” Chhabria said, citing Newsom’s moratorium, Hill’s age, and possible questions about his mental competence.

The judge said he “urges the Attorney General’s Office to reconsider its resistance to resolving death penalty litigation”— in other words, to negotiate reductions in death sentences in exchange for defendants’ concessions in their appeals.

The financial consequences are substantial. According to a 2011 study by U.S. Appeals Court Judge Arthur Alarcon and Paula Mitchell, a Loyola Law School professor, the courtroom and prison costs of capital punishment in California exceed the cost of locking up the same defendants for life by $170 million a year.

The state’s voters narrowly rejected initiatives to repeal the death penalty in 2012 and 2016, while approving a 2016 ballot measure aimed at speeding up executions and limiting appeals. But the state has yet to win court approval of its lethal-injection procedures, which a federal judge in 2006 found to be flawed and potentially torturous.

California Attorney General Rob Bonta responded to Chhabria’s order with the same statement he issues in nearly all such cases — that he “personally believes that the death penalty is deeply flawed and immoral” and that as a state Assembly member, he proposed a state constitutional amendment to abolish it. But he will “continue to fulfill the duties of his office” — in other words, he will defend current death sentences, including Hill’s.

“He will also continue to work with the governor’s office, the Legislature, and other interested parties to identify pathways to help bring more justice into our criminal justice system,” Bonta’s office said.

Hill’s lawyer, David Senior, characterized that stance as “business as usual in California,” with the attorney general declaring opposition to capital punishment while doing nothing to end it. Bonta was appointed by Newsom in March to succeed Xavier Becerra after President Biden chose Becerra as secretary of Health and Human Services. Becerra and his predecessors as attorney general, Kamala Harris and Jerry Brown, also personally opposed the death penalty but defended it in court.

Senior said Bonta has refused to take part in settlement conferences and “stonewalls every case as if there have been no injustices in California since 1978,” when voters approved the current death penalty law.

Newsom’s moratorium on executions was unprecedented in California, but the governor has refrained from going further and seeking to commute any death sentences to life without parole. Such commutations would require approval from a majority of the state Supreme Court for any inmate with felony convictions in at least two cases.

Prosecutors said Hill robbed and killed Brice to pay a $600 drug debt that Hill owed to McCray. At the trial in 1987, McCray refused to testify, claiming his Fifth Amendment right against self-incrimination. But jurors heard his previous statements, given under oath to prosecutors, in which McCray said Hill had committed the murders and had given him cash and jewelry afterward to repay his debt. Hill’s lawyers were not allowed to cross-examine McCray, who was then in federal prison for drug crimes.

Hill admitted being in the jewelry store but denied killing Brice, whom he had known for many years, or his son, and testified that McCray committed the robbery and the murders.

Twenty years after the trial, and 15 years after the state Supreme Court had unanimously upheld Hill’s convictions and death sentence, Hill’s lawyers said they learned that the Alameda County District Attorney’s Office had promised McCray before questioning him that it would not prosecute him in the case. Such a promise would mean McCray had no legal basis to refuse to testify in court or avoid cross-examination.

“The agreement was in writing and made by the No. 2 D.A. in the office,” said Senior, contending the disclosure shows Hill was denied a fair trial by being unable to challenge McCray’s testimony. He said both the District Attorney’s Office and the Attorney General’s Office had concealed the agreement during Hill’s trial and appeals in state court.

Because Hill’s lawyers have not yet raised the issue in California’s courts, Chhabria “reluctantly” declined to order a settlement conference before a federal magistrate and returned the case to state court for now.

Senior said he has been trying to discuss the case with the District Attorney’s Office for more than two years and would resume his efforts after Chhabria’s order. He said Hill, who had one drug conviction on his record before the murders, has a spotless disciplinary record in prison.

Alameda County District Attorney Nancy O’Malley’s office declined to comment.

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @BobEgelko

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