Capital Crime

Judge Lance Ito (left) presides over the murder trial of Juan Chavez (right), while the victim, Risa Bejarano, appears on screen in a scene from Aging Out. Image from the documentary film No Tomorrow, by Roger Weisberg and Vanessa Roth.

Capital Crime
By John Unger Zussman

Last month, I posted an inside view of the American corrections system by Mark Unger. Today, I examine another aspect of our criminal justice system—the death penalty—with a preview of the documentary, No Tomorrow. The film premieres on PBS this Friday, March 25.

Think of the issues you’re most passionate about. If you’re reading this blog, they might include universal health care, our social safety net, climate change, civil rights, feminism, reproductive rights, gay marriage, war, nuclear proliferation, or capital punishment.

Now imagine that someone uses two years of your most intensive, committed work to argue, eloquently and effectively, against that issue.

That’s what happened to filmmakers Roger Weisberg and Vanessa Roth, veteran documentarians whose films air regularly on PBS. Their work has won numerous awards, including two Oscar nominations for Weisberg and one Oscar win for Roth. (Full disclosure: Weisberg is a long-time family friend.)

In 2004, they released Aging Out, a film about teenagers who outgrow the foster care system and find themselves on their own. One of their subjects, Risa Bejarano, was lucky enough to have a foster mother who truly cared for her. She graduated high school in Los Angeles and headed to the University of California at Santa Barbara on a scholarship. But she struggled academically and personally, began using illegal drugs, and fell in with a bad crowd.

On a spring night in 2004, Risa got in a car with a friend, Juan Chavez. He drove her to a deserted city street and, over her desperate pleading, shot her thirteen times because she could place him at the scene of two gang murders he had committed the week before.

It was brutal. Roth visited Risa at the morgue. “She was shot so many times at such close range,” she describes, “that her body just wasn’t a person anymore.”

Chavez was arrested and charged with the three murders. An eyewitness stepped forward, against gang code, to testify. There was no miscarriage of justice here. Chavez was not beaten or forced to confess; he admitted the killings to a cellmate in a conversation recorded by police. The detective, the prosecutor, the defense attorney, the jury—all interviewed on film—were competent and thoughtful and took their roles seriously. The judge, Lance Ito (whom you may recall from the O.J. trial) appeared impartial.

Chavez was convicted of three counts of first-degree murder. He expressed neither remorse nor regret, nor any emotion at all.

The trial then moved to the penalty phase, where the prosecution invoked special circumstances and asked the jury to impose the death penalty. In this phase, the prosecution can present “victim impact evidence.” Usually this consists of a few photos along with testimony of friends and family members. But in this case, the prosecution had a video—Weisberg and Roth’s film. They re-edited it to make their case. “The documentary enabled us to humanize her,” says Robert Sherwood, Los Angeles Deputy District Attorney. “To make the jury see what kind of a person she was and what a loss to society her death was.”

This was not what the filmmakers had in mind. “We were tremendously ambivalent,” confesses Weisberg. “Part of us wanted to help in the effort to punish the perpetrator of this crime in the most severe way possible. But the other part of us, which had moral reservations about the death penalty, were really troubled by the idea that the film that we had made to help teenagers age out of foster care was now going to be used … to help impose the death penalty on a young man who had ironically suffered some of the same abuse and neglect as Risa Bejarano did in Aging Out.”

So, following the adage that “the remedy for bad speech is more speech,” Weisberg and Roth decided to make another film.

The first third of No Tomorrow recounts the story I’ve just summarized. Using footage from Aging Out, it portrays Risa Bejarano as an optimistic, open, caring young woman. Nor does it shrink from portraying the brutality of her murder or the devastation of her foster mother, Dolores Ruiz. “I lost a daughter,” Ruiz says tearfully. “They need to pay because I don’t have her here.” Even the staunchest opponent of capital punishment might agree that, if ever a criminal deserves to die for his crime, Juan Chavez is that man.

But then, No Tomorrow starts to sneak up on you. Noting that Chavez’s attorney, John Hud, had presented photos of Chavez’s childhood in an attempt to create a “poor man’s Risa video,” the film proceeds to do the same. As Weisberg observes, Chavez endured the same kind of abuse and neglect as Risa—without the advantage of a caring foster mother. He was abused by his alcoholic mother, abandoned by his father, poor, learning disabled, and (like Risa) probably molested. His mother threw him out of the house at age 11. When gangs moved into his neighborhood, they gave him the attention he craved but had never known. Chavez was just 18 when he committed these crimes. A few weeks earlier, he would not have been eligible for the death penalty.

“Many people will look and say, oh, it’s the ‘abuse excuse’ or you’re just trying to justify what he did,” says Aundre Herron, a lawyer for the California Appellate Project. “But every single system has failed them. The family has failed them. The schools have failed them. The juvenile justice system has failed them. The mental health system has failed them. The religious systems have failed them. Every single system.” One juror says, “He honestly struck me as a kid who could have been a very high-functioning individual in the community, and probably done well—if other options had been presented to him.”

Risa’s high school friends agree that Risa herself would not have wanted her killer to die. “She just had the biggest heart,” says one. “And I think because she got that second chance in life, I think that’s what she would want for somebody else.” “Even now, I just want her to be at peace,” says another, “and I don’t know if [Chavez’s death] is going to bring her that peace.” In the end, even Risa’s mother has to assent. “I don’t think she would have wanted this,” she says. “That’s the kind of person she was. She was a very sweet, very giving person. She was able to forgive.”

No Tomorrow then turns outward and discusses the death penalty in the context of the criminal justice system. It describes class and race disparities in its application. And it shows news clips of people who served years or decades on death row, only to be exonerated by DNA or other evidence. This segment features Barry Scheck, also famous as one of O.J.’s lawyers, and co-founder and co-director of the Innocence Project. “The fact that innocents could be executed,” argues Scheck, “is alone enough of a reason to oppose capital punishment.”

(For an entertaining Hollywood dramatization of the Innocence Project’s work, I recommend last year’s movie Conviction, now available on DVD. Hillary Swank stars in the true story of Betty Anne Waters, a working-class woman who got her G.E.D. and put herself through college and law school so that she could free her brother who was wrongly convicted of murder. Scheck, who is portrayed in the film, notes that Kenny Waters was just one of hundreds of innocent  ex-cons, including many on death row, who have been exonerated and released with the Project’s help.)

“This was not a Perry Mason case,” says the jury foreman in Juan Chavez’s trial. “There was no reasonable doubt.” But that doesn’t convince Lawrence Marshall, a law professor at Stanford. “You talk to people about the death penalty and they say, what if we could limit the death penalty to cases where we were really sure?” he says. “Well, what were we doing before? Were we putting people on death row because we kinda, sorta thought maybe they did it? We were completely sure! And yet, we were completely wrong.”

Marshall goes on to observe that Europe, Canada, and South America have all abolished the death penalty. Among developed Western democracies, only the United States still employs capital punishment. And it’s not because people elsewhere are bleeding hearts. “In Europe now, if you take public opinion polls, it still shows 60% of people think capital punishment is an appropriate sanction for the most heinous of crimes,” says Scheck. “But they don’t support the death penalty. They’re very much against it. And the reason is, they don’t trust the state to get it right.”

You’d think this argument would appeal to conservatives, who don’t seem to trust government to do anything right. Yet at the state level it is mostly Democrats who have been working to overturn the death penalty, most recently in Illinois, which this month became the 16th state to outlaw it. “If the system can’t be guaranteed 100 percent error-free, then we shouldn’t have the system,” said Democratic Governor Patrick Quinn when he signed the bill. The law made permanent a moratorium on executions declared in 2000 by his Republican predecessor, George Ryan. Twenty inmates have been exonerated and taken off Illinois’ death row over a 35-year period. Still, in a brilliant display of not getting it, Illinois Republicans are currently crafting new legislation to reinstate the death penalty.

Finally, Natasha Minsker, Death Penalty Policy Director for the Northern California ACLU, describes the realities of death row inmates in a state like California. “Chavez is almost certainly never going to be executed,” she says, detailing the delays and logjams that promise to stretch Chavez’s appeal over several decades. In the last 35 years, thirteen executions have been conducted in California while, currently, 713 people wait on death row. (I’ve updated these numbers from the ones in the film.) Even if California began executing prisoners at a rate of one a month, it would take almost 60 years to eliminate the backlog. “The reality,” Minsker says, “is that [Juan] Chavez will die of other causes long before this process completes itself.”

If the alternative to capital punishment is life imprisonment without parole, one argument goes, why should taxpayers foot the bill? No Tomorrow exposes this argument as a canard. For each death row inmate, California pays an additional $90,000 per year to incarcerate him (or her) with extra security, plus another $85,000 per year for attorney and court costs of his appeal. “The average death penalty case may cost from $2-5 million from charging through execution,” calculates the Appellate Project’s Herron, while lifetime incarceration may cost only $750,000. Adds Ron George, former Republican-appointed Chief Justice of the California Supreme Court, “It costs more to keep somebody on death row in San Quentin than it would to send them to Harvard Law School.”

No Tomorrow doesn’t moralize or polemicize. It gives a fair shot to advocates on both sides of the issue, weaving them into a single rich fabric. In the end, it simply tells stories—one story about a sympathetic victim, Risa Bejarano; another about an unsympathetic perpetrator, Juan Chavez; and ultimately a third story about our criminal justice system. “It’s easy to be against the death penalty when there is doubt about culpability,” observes Weisberg. “But we believe that No Tomorrow will make viewers question the death penalty even in cases like the Chavez case … where the defendant is neither sympathetic nor plausibly innocent.”

Sy Safransky, founder and editor of the literary magazine The Sun, once asked a group of writers, “Why are so many personal stories about unhappiness?” My answer: because life is hard, and too short, and always ends unhappily.

It is stories that illuminate life, make it bearable, and teach us how to live it. Not the pat sound-bite stories that presidents trot out at State of the Union speeches, about ordinary men or women who started a small business or triumphed over adversity or landed a passenger jet in the Hudson River. No, it is the true, complex stories of real people coping with their lives that cut through partisan rants and show us common ground. If the world is to be saved—a valid question in these dark days—it is stories like No Tomorrow that will save them.

No Tomorrow debuts on PBS this Friday, March 25, 2011. Visit the film’s PBS website to view the trailer and check local listings. In the San Francisco Bay Area, for example, it airs March 31 and April 1 on KTEH, San Jose.

Copyright © 2011, John Unger Zussman. All rights reserved.

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