Where I Stand — Mike O’Callaghan: Election years can be dangerous for our court system

Monday, June 8, 1998 | 10:45 a.m.

SUSAN ESTRICH, IN HER BOOK "Getting Away With Murder: How Politics Is Destroying the Criminal Justice System," uses several cases to show how politics slips into what takes place in our courts. Her example of jurors "sending a message," as they did in the O.J. Simpson trial, reminded me of a column I wrote back in 1994. That showed our readers the same problem can arise here, when discussing several cases including an 11-1 jury vote in Clark County.

Yes, the vote was 11-1 for conviction. A review of that trial transcript shows that the prosecutor had easily identified the holdout as a problem and did his best to keep her off the jury. The sitting judge denied every effort to remove her, and the results cost Nevada taxpayers thousands of dollars.

The personal feelings of the juror were revealed in a questionnaire she had filled out. The question was: Would your views or state of mind prevent or substantially impair the performance of your duty as a juror in accordance with the court's instruction on the law?" To this, she wrote "yes." Later, when questioned, she told the court: "I must have misread it."

When asked how she felt about the death penalty, she answered: "When I was in my 20s, I was very uncomfortable with it. I'm still not comfortable with it. After what's happened in Milwaukee with Jeffrey Dahmer and people that constantly do things, heinous things, I believe in it. But it has to be something that's really heinous like that." Another red warning flag. The case the jury was considering wasn't near the magnitude of the crimes committed by Milwaukee's Dahmer. No, it was to consider a husband who allegedly planned and executed the stabbing death of his wife. It was murder.

Also during pretrial questioning, the lady revealed she believed the police in another city had helped convict the wrong person in the burglary of her home. Red flag No. 3!

In addition to these problems, there was good reason for the prosecutor to feel the prospective juror had heard enough to know the prosecution was attempting to keep her from becoming a juror. She denied she had heard anything and the judge insisted she remain as a juror. She was the one juror who, according to one of the other 11 jurors, held out for reasons he didn't believe were "reasonable." This may have surprised her fellow jurors, but it certainly shouldn't have shocked the judge or the attorneys.

About the same time, another Las Vegas jury convicted a man of two bar robberies and a murder. Then suddenly, a juror sobbed and took back her vote to convict him of the murder and one holdup. According to the prosecutor, "she didn't want to be a juror." So what was she doing on the jury?

But how does politics get directly involved in the effectiveness and functioning of the justice system? In Estrich's chapter "The Long Shadow of Willie Horton," she used California's Polly Klaas case to show how some "get tough on criminals" campaign promises helped kill the little girl.

"Richard Alan Davis, on parole for a third offense when he kidnapped and killed Polly Klaas, is a case in point. Virtually everyone who dealt with Davis in the criminal justice system recognized him as a serious and violent predator who should be in prison both as punishment for his crimes and to protect the rest of us. But the legislature set him free, because mandatory terms also mean mandatory release. Davis was in prison serving a six-month to life term for kidnapping. He'd already been turned down for parole three times. But when new mandatory sentence laws were passed, his indeterminate sentence was recalculated to a determinate length consistent with the average sentence to be imposed under the new, supposedly tougher, rules.

"In Davis's case, those rules required him to serve 72 months -- six years. Davis had already served six years. He was released right away. No judge or parole officer could stop it. Three years later, Davis kidnapped another woman. This time, he received the maximum determinate sentence of 16 years. But the truth is that we don't have enough prisons for everyone who gets 16 years to serve all 16. So California legislators, faced with bursting prisons, passed a law requiring all prisoners to serve one-half of their mandatory terms, effectively cutting them in half across the board. Davis was released, again automatically, in exactly eight years. Then he kidnapped Polly Klaas."

"Getting Away With Murder" is a book that every citizen would be wise to read before he or she votes this fall. The readers of the book will better understand what they read and hear about court decisions. They will also become wary of promises being made by some politicians who want us to believe they have simple solutions for complex crime problems.