Op-Ed: Rosen’s Lawless War Against the Death Penalty, Part II

pen signing white paper

Three months ago, District Attorney Jeff Rosen unveiled his controversial scheme to have the death sentences of 14 South Bay murderers reduced to prison terms. Although his plan faltered out of the gate because he failed to coordinate scheduling with the courts, the misstep bought him valuable time that he could have used to correct course. He blew the chance.

If Rosen had only taken that opportunity to re-read the statute he thinks allows him to elevate his personal opinions over the rule of law and looked for the first time at an important intervening court decision, he would have quietly backed down. Rosen has instead doubled down with Giveaway 2.0, a repackaged version prepped for rollout at 14 hearings scheduled between August and October that is just as lawless and even more dishonest than the original.

Unlike his first effort, Rosen’s new pitch comes adorned with “proposed orders” announcing the 14 sentence reductions he seeks. (Proposed orders are documents prepared by lawyers that recite both the bottom-line outcome they hope the court will endorse; as such they reflect the submitting lawyers’ own understanding of their strongest grounds for prevailing.)

SPONSORED

It, therefore, might seem odd that Rosen’s proposed orders contain not one word of justification for reducing anyone’s death sentence; they simply announce the reductions as accomplished facts, done deals.  That won’t work because the law requires courts to “state on the record the reasons” for reducing anyone’s sentence. No self-respecting judge, therefore, would even consider signing the legally defective orders Rosen has drafted. And that’s Rosen’s dilemma: He couldn’t include his actual reason for reducing all 14 death sentences because it is no more legally sustainable than no reason at all.

Rosen claims that he only recently “just began to feel like we don’t have the moral authority as a society to execute someone.” Only “God should decide when” those 14 murders should die, he insists. He thinks the public doesn’t  “deserve” the prerogative it rightly enjoys to disagree with him. The law, however, is clear: Rosen’s personal policy preferences are legally irrelevant.

Here are some things the law says could be relevant:  the murderer’s behavior while in prison, the danger he continues to pose to others, the fairness and integrity of his particular trial or sentence, and whether he suffered childhood trauma or similar abuse before committing murder. Every factor listed is of the sort that the California Supreme Court, in a closely related context, has called “intrinsic” to the sentencing process. Such factors are “case-specific and defendant-specific.” They differ from forbidden “extrinsic” factors, such as “idiosyncratic views of justice” informed by the prosecutor’s or the court’s “bare antipathy” for the particular law involved.

To be sure, the statute also says permissible factors “include, but are not limited to” those specifically mentioned. But that won’t allow Rosen to nullify all death sentences based on his disapproval of capital punishment.  Unmentioned things “included” by such language are only things “that are similar to those which are enumerated specifically.” Rosen’s personal opinions are nothing remotely like the case- and offender-specific factors mentioned in the statute.

Thus, it is also of no moment that Rosen now claims he has no “faith in the integrity” of any death sentences because he is uncertain whether any was “attained without racial bias.” While alleging that “implicit bias and structural racism” played “some role,” he can’t say what role that was and he admits he has no basis for accusing anyone involved with being a racist. His only point is purely hypothetical—“if the structure was infected with racial bias, then we cannot have faith in the integrity of the ultimate sentence.” Rosen’s unproved hypothesis might well be worth exploring, but until then it cannot logically or legally provide a basis for nullifying all the sentences imposed on every capital murderer in the county — more than half of whom are white.

Rosen concedes there’s no reason to believe any of the 14 murderers are innocent, but he wants their sentences reduced anyway because he cannot “deny the possibility of error.” These speculative musings too are just another way of saying he believes capital punishment is bad policy, a viewpoint California voters have repeatedly rejected.

Rosen also insists “it offends equality under the law to have people serving a capital sentence when they would not receive such a sentence for the same conduct today.” But this insult to “equality” is entirely of his own making, the result of his decision, beginning in 2020, never to seek the death penalty for any murderer no matter the circumstances. His argument might not quite match the level of chutzpah displayed by the man who murdered his parents and then begged for mercy on the ground that he’s an orphan, but it’s close.

Nor does it help Rosen to continue arguing that reducing sentences will “expedite” all litigation generated by the murderers and “pave the way” to finality. Easing court congestion, like gratifying Rosen’s hostility toward capital punishment, is “extrinsic” to the considerations on which individualized sentencing decisions must properly turn.

At any rate, Rosen’s rosy predictions are unfounded, and incorporating them into his proposed orders would have only highlighted his duplicity. After all, if Rosen really wanted those 14 cases to wind down, he’d demand that the 14 murderers waive further litigation in exchange for reduced punishment.  He hasn’t. Far worse, he has inserted into some proposed orders language that guarantees the murderers will continue to “pursue claims related to the convictions in current and future state and federal litigation” even if their sentences were reduced.

Rosen’s campaign against the death penalty is an exercise in showmanship that plays well with anti-death penalty activists. But Rosen should expect―and the public certainly deserves―a far more skeptical reception from the courts. After all, ours is “a government of laws, and not of men.”

Over his 35-year career as a deputy district attorney and later a deputy attorney general, Ron Matthias personally handled scores of death penalty appeals in state and federal court, including that of William Dennis, whose pending death sentence is among those Rosen is seeking to have reduced. From 2007 until retiring in 2019, he oversaw the litigation of hundreds more death penalty cases while serving as the statewide capital case coordinator for three administrations of California Attorneys General. He now writes on legal topics, and his work has appeared in The Mercury NewsThe Los Angeles Daily News, and The Daily Journal, among other publications.

SPONSORED

View Comments (9)

  • Ron,
    .
    Nowhere in your opinion piece do you discuss the most important aspect of this issue which is whether or not we should have a death penalty at all.
    .
    There has been so much research into this and there is a general consensus that the death penalty is not effective as a deterrent to crimes that would be punished by the death penalty or any other crime.
    .
    The last execution in California was almost ten years ago and what were historically low homicide rates in the state went even lower to new historic lows after we stopped executing murderers. We still have a lower homicide rate than we had when we last executed murderers.
    .
    Your opinion piece only lays out an argument that district attorney Rosen is acting outside of his powers. You are making a procedural argument and not addressing the much more important issue of effectiveness. Do you believe that the death penalty reduces crimes that would be punished through capital punishment? If so then what evidence do you base your opinion on?
    .
    You are writing an opinion piece in an outlet that will be read by normal people so it seems that you are trying to persuade public opinion to pressure Rosen. But the procedural argument is not a way to sway public opinion because people opposed to the death penalty are not against it based upon a procedural reason. People oppose the death penalty because they believe it to be ineffective or something that will cause the execution of innocent people or because they feel it is immoral or is inefficient use of public resources or maybe all of the above.
    .
    If you are writing to persuade anyone who has the power to make a ruling that affects Rosen's decision then I think you are trying to communicate with the wrong audience. If you are writing to persuade Silicon Valley Voice readers why they should care about this then I think you are making the wrong argument.

  • Didn't see that there was a comments button. Learn something new every day.

    I don't discuss "whether or not we should have a death penalty at all" for two reasons: (1) that's a question on which my opinion should carry no greater weight than anyone else's, and (2) it's also a question that has been resolved--often and recently--by the voters, and if their judgment is to be overridden, they--not executive officers--must be the ones to do it. In all events, I don't have especially strong views one way or the other on the overall wisdom of the death penalty as a matter of public policy. The only view on the matter that I hold strongly is the one I have expressed and will now repeat: When it comes to the death penalty, I am "pro-choice"; the voters get to decide, not Jeff Rosen. Call that a "procedural" point if you like, but it's one that goes to the heart of how things get decided in a democracy. It is, therefore, very much a point that everyone, as you put it, "should care about"--and it's the only point on which I hope readers will be persuaded.

    People of good faith can reasonably debate how "effective" the death penalty is, whether a reduction in homicide rates in jurisdictions that provide for capital punishment prove its ineffectiveness or the opposite; whether data bearing generally on "homicide"--a category of conduct of which only a tiny portion is made punishable by death anywhere in the US--can be thought to have even the most remote bearing on guaging the death penalty's effectiveness; whether its effectiveness, if any, is more affected by whether capital punishment is merely provided for by law or actually carried out in practice; and whether effectiveness alone should be the only consideration (or even the main consideration) when deciding whether to keep the death penalty on the books. I won't debate any of those questions here, largely because they have little to do directly with the point of my piece. I am, however, reasonably familiar with the relevant research and data, and I can tell you that, contrary to what you might have read in the media, there is no "general consensus" that the death penalty is not an effective deterrent to at least some varieties of murder. In fact, there is considerable evidence that would support the contrary conclusion. The evidence in the aggregate, it would be most fair to say, is inconclusive, and that's all the more reason why difficult policy choices are not left to you, me, or Jeff Rosen, but to the voters.

    I thank you for your comments.

    • Ron
      Thank you for this wonderful explanation of how the mind of this criminal, Rosen, works. This article has been more than insightful. Do you have any other family victim information?

      Thank you

      Tony LoBue

    • The problem is that it is always Jeff Rosen's choice. He does not limit himself to override the voter on court ordered homicides, Rosen "sanctions" homicides that occur on our streets.
      ..
      For example, my former attorney (Valerie Houghton) has been assaulting me. I have been poisoned so many times that now my testicles have atrophied, my organs damaged, and the shape of my face has changed. See the picture of the damage to my facial structure here: https://www.scribd.com/document/584600169/Valerie-Houghton
      ....
      Mr. Rosen is using his office to discredit me and cover up the aforementioned assaults. If he cared so much about the death penalty and justice, why would Mr. Rosen do this to me? I didn't even commit a crime.
      ...
      https://www.thepetitionsite.com/272/404/301/district-attorney-jeffrey-rosen-please-stop-sex-trafficking-my-kids/

  • My sister is one of the new victims to Rosen reign of terror. Rosellina LoBue was murdered in 1987 and Rosen is trying to resentence my sisters murderer. Basically walking him out of prison. If you are a family member of one of the victims, PLEASE CONTACT ME tonylobue@yahoo.com We need to unite against this kind of treachery. We can beat this if we unite against Rosen.

  • A few observations on this critically important subject of our public safety:

    (1) One group of people who firmly believes that the death penalty deters more than "three hots, a cot, and a flu shot" are the criminal gangs, themselves, who routinely "execute" those who break their "codes" of silence and other "rules". Of course, it deters. Please do not insult our intelligence any further.

    (2) Obviously, most heinous murderers do not believe that there is a heavenly afterlife for those who live virtuously (otherwise they would live virtuous lives). Earth is all there is for them. Consequently, they, more than most people, are afraid to die. They are not like the patriotic heroes, Nathan Hale, Patrick Pearse, Joan of Arc and the Allied soldiers on D-Day, all of whom were prepared to -- and did -- die young for their country.

    (3) What would deter a "lifer" from killing a prison guard, a chaplain, a prison social worker, a prison visitor, or a member of the public (after an escape)? Anything other than the death penalty?

    (4) Long story, short, about Rosen, is that he needs to be recalled by the citizens of our county as soon as possible for the sake of our safety and that of our neighbors, just like the incorrigible California Chief Justice Rose Bird and two of her colleagues were in 1986.

  • "Lawless" is the exact term to use for how D.A. Jeff Rosen is behaving. By unilaterally defying the current death penalty laws, he is making the law completely arbitrary. I don't believe that the state legislature or the voter ever intended for Mr. Rosen to be able to have that level of authority.
    ..
    I can cite a similar case in which Mr. Rosen uses his powers in inappropriate ways.

    ...
    Valerie Houghton misappropriated about $10,000,000 from Clyde Berg. two weeks after Mr. Berg demanded an accounting of the missing funds, D.A. Rosen filed criminal charges against him. The D.A. accused Berg of raping a pregnant woman with a golf putter. He was then jailed for 8 days and forced to wear an ankle monitor.
    ...
    https://www.youtube.com/watch?v=eEg1fTduQp0&t=406s
    ...
    Then after spending $3,000,000 in legal fees during a 3 year year prosecution, Mr. Berg was found factually innocent.
    ...

    https://www.documentcloud.org/documents/6981163-HoughtonIndictment-Docket
    ....

    When the man tried to recoup his money, Mr. Rosen filed charges against him. It was alleged that he raped a woman with a golf club. He was jailed for 8 days and had to wear an ankle monitor for three years.
    ...
    After spending more than 3 million dollars defending himself, the man was found factually innocent.
    ...
    https://www.mercurynews.com/2015/01/16/silicon-valley-millionaire-clyde-berg-found-factually-innocent-of-sex-abuse-of-wife/
    ...

    Ms. Houghton was eventually charges with the crime of embezzlement But after 4 years of her prosecution, Mr. Rosen filed a motion to dismiss. It was stated in the motion that he had enough evidence to secure a conviction at trial. It should also be noted that the dismissal filing came at a time when Mr. Rosen was receiving reports that Ms. Houghton was engaged in the sex trafficking of minors and physically assaulting parents. He just didn't care what message a dismissal would send to her.
    ....
    Mr. Rosen has weaponized the D.A.'s Office to serve his needs and the needs of people who are associated with him. In the process, he has neglected the needs of public.

    ....
    In the end, Ms. Houghton was sued by Mr. Berg. She ended up returning his money.
    ...
    https://lawzilla.com/blog/clyde-berg-et-al-v-metaview-wholesale-investments-lp/#respond

    ....
    Mr. Rosen also retaliated against another man who had discovered that his daughter was raped. When the man tried to report it, HE WAS ALSO ASSAULTED AND PROSECUTED.
    ....
    Read more here: http://www.freearianna.org
    ....
    I don't know how this is all being allowed to happen. Mr. Rosen is jeopardizing public safety in the most cruel and heinous manners.​

  • Jeff Rosen clearly thinks that a murderer who has been given the death sentence has more of a right to live than a father who just doesn't want his kids to be raped.
    ..
    It make no sense. This is the type of justice that Santa Clara County has been getting since Rosen got into office.