January 22, 2009

District Attorney takes away death penalty in Campbell trial

By Carol Rosen
Editor

District Attorney Delores Carr announced late last week that she would not appeal the ruling by Judge Diane Northway that De-Shawn Campbell is retarded. Instead, they will go for a sentence of life without parole.
Campbell is charged with killing San Jose Police Office Jeffrey Fontana during a traffic stop more than seven years ago.

In a prepared statement, Carr said the decision was extremely difficult for both herself and the District Attorney’s office. “I continue to believe that the death penalty is an appropriate penalty in certain cases including this one. So does the Fontana family,“ according to her statement.

“However, as much as we feel a duty to the public, to the Fontanas, and to law enforcement to press on, we also have a duty to make responsible decisions in furtherance of justice. After discussing all of these issues at length with the Fontana family, they agree that a fruitless appeal would merely delay this case for at least another year,” Carr told the Times. “Therefore, I made the extremely difficult decision not to appeal the ruling, and to proceed to trial.”

Deputy District Attorney Lane Liroff, the prosecutor in the case, had contacted the state Attorney General’s office to review the judge’s decision. Deputy Attorney General Amy Haddix said in a letter that the office would not appeal the judge’s findings. “Our evaluation is that an appeal of that order by the People…would lack substantial merit, have only a minimal chance of success and entail undue delay of the trial.”

Shortly after bringing charges against Campbell, the United States Supreme Court in the case of Atkins v. Virginia declared it unconstitutional to impose the death penalty against a mentally retarded defendant, regardless of the crime.

“The court found that mental retardation makes such defendants less culpable for their crimes, and thus makes the death penalty inappropriate. While this principle is reasonable in the abstract, the way in which that principle has been applied after Atkins is not,” Carr said in her statement.

The Supreme Court decision created a problem because there is a lack of “reliable standardized tests for diagnosing one aspect of mental retardation—that a defendant can’t function in society,” Carr stated. California law, she added, requires a defendant to “prove he is ‘more likely than not’ to be mentally retarded,” increasing risks that defendants will be erroneously found mentally retarded based on the unreliable test results.

“The lack of recognized standards means that legal decisions may be divorced from science, and judges are left without clear guidance on how to determine whether a defendant is mentally retarded,” Carr said. “ Judge Northway at first decided that Campbell was NOT mentally retarded based on her finding that one such standardized test was unreliable as it was used by defense experts. After that decision was reversed by the appellate court because a witness had given erroneous and prejudicial testimony about Campbell, the mental retardation hearing was reopened,” Carr said.

Judge Northway reversed her ruling after a single defense expert testified. Carr said he relied on a test administered in a different way than it was designed. In addition, the expert used a test that typically provides lower scores for African-Americans than for Caucasians or Hispanics.

San Jose Police Officers Union President Bobby Lopez feels that the DA’s office did its job, but “we feel the system worked against us. We think that Campbell should be accountable. He held several jobs, he managed to keep away from us for 10 days, and he was able to take apart the gun, he’s not retarded. I hope the DA goes for life without parole,” he told the Times.

Sandy Fontana, the mother of Officer Fontana, added that the family is definitely disappointed in the judge’s decision to change her mind (and declare Campbell retarded). “We didn’t come away with the same idea, but it’s her decision that counts.”

She agreed with Carr that the trial should go ahead with no more delays. Like Lopez she hopes that Campbell will be convicted and sentenced to life without parole.

“Nothing can bring closure,” she said, but the family does hope for justice.

Fontana was killed by a fatal gunshot to the head during while patrolling on Oct. 28 in Almaden Valley. The 29-year-old Campbell was arrested about a month later and charged with killing Fontana. Almaden residents have held candlelight vigils on the anniversary of Officer Fontana’s death ever since.

Sandy Fontana added that the family is very “appreciative of the all support they have received from Almaden residents.”