Metropolitan News-Enterprise


Wednesday, November 10, 2021


Page 1


Judge Ito Won’t Rubber-Stamp Gascón’s Recommendation

Jurist Says He’s the Fact-Finder in Habeas Corpus Proceeding and Will Decide for Himself if Petitioner Is ‘Intellectually Disabled,’ Rendering It Impermissible to Execute Him; D.A. Sides With Inmate


By a MetNews Staff Writer


Los Angeles Superior Court Judge Roger T. Ito yesterday made it clear yesterday that he is the fact-finder in a habeas corpus proceeding and is not bound by the District Attorney’s Office’s concession that a double murderer is entitled to be relieved of a death sentence.

District Attorney George Gascón has opted to support the contention that inmate Samuel Zamudio may not be executed under the U.S. Supreme Court’s 2005 pronouncement in Atkins v. Virginia that capital punishment is impermissible under the Eighth Amendment where the defendant is “intellectually disabled.” The concession by the prosecution that Zamudio is so incapacitated was calculated to cause the judge to vacate the October 5, 1998 death sentence and substitute a sentence of life imprisonment without possibility of parole.

A proposed order prepared by Gascón’s office says:

“On August 5, 2021, respondent, through counsel, represented that it determined that Petitioner was entitled to relief on his claim of intellectual disability. Accordingly, this court finds that the relief requested in the petition should be granted.”

Accepts Amicus Brief

Ito said he has accepted for filing an amicus curiae brief by attorneys for the children of an elderly couple slain by Samuel Zamudio, and has read and considered it. He did not accept the suggestion put forth in the brief that Gascón be ordered in writing to provide certain materials he relied upon in making his decision not to oppose the habeas petition, which the judge had asked to receive and which the district attorney has declined to produce.

The brief suggested that the district attorney be found in contempt if he refused to comply.

But Ito did agree with the contention by Long Beach attorney Brentford Ferreira that the court is not bound by Gascón’s concession that Zamudio is intellectually incapacitated, saying that he will decide that for himself.

Other judges in recent months have declined to grant an audience to attorneys for victims in a non-sentencing context, which is not expressly required under Marsy’s Law.

 Ferreira was one of three authors of the amicus brief. The others were former Los Angeles County District Attorney Steve Cooley and victims’ rights attorney Kathleen Cady of the Dordulian Law Group in Glendale.

Zamudio is represented by Paula Fog, Gillian Quandt, and Susan Garvey of the Habeas Corpus Resource Center. They could not be reached for comment.

Cooley Comments

Cooley said yesterday:

“It is clear to me that the Office of District Attorney is working hand-in-glove with the Habeas Corpus Resource Center to achieve their common goal of undoing death penalty verdicts that have been achieved over the years by the Los Angeles District Attorney’s Office. I firmly believe that District Attorney Gascón and his hand-picked recently deputy public defenders, now deputy district attorneys, are on a mission to thwart the death penalty whenever they have an opportunity to do so.”

He added that he anticipates the office will “concede in future habeas proceedings as to any grounds asserted by the petitioner/defendant.”

Cady commented: “Two of Elmer and Gladys Benson’s children were in court.  Elmer was 79 years old and in a wheelchair when the defendant stabbed him six times. Gladys was 74 years old when the defendant stabbed her 13 times during the home invasion robbery.

“The children continue to hope for justice for the man who brutally murdered their parents.”

The District Attorney’s Office was not contacted for comment. It has been unresponsive, under Gascón, to such requests. Ito set a further hearing for Dec. 3. It was not clear whether he will act on the petition at that time or will order further proceedings.


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