Tuesday, September 24, 2002
C.A. Upholds Davis on Parole Denial, Finds No Blanket Policy
By KENNETH OFGANG, Staff Writer
A convicted murderer whose release on parole has been blocked twice by Gov. Gray Davis failed to prove that the governor has a blanket policy of denying release to convicted murders, the Third District Court of Appeal ruled yesterday.
The court upheld a Sacramento Superior Court judge’s ruling that the governor acted within his discretion by vetoing the Board of Prison Terms finding that former airline pilot Norman G. Morrall was suitable for parole.
In doing so, the court rejected a contention by Davis and Attorney General Bill Lockyer, whose office represented the governor, that the governor’s parole vetoes are not subject to judicial review, and it agreed with Morrall that a blanket policy of denying parole to murderers would be unconstitutional.
But Presiding Justice Arthur Scotland, joined by Justices Coleman Blease and Harry Hull, said the governor was entitled to a presumption of “fidelity in the performance of his official duties.” Regardless of the governor’s “political rhetoric,” Scotland wrote, it takes “specific evidence” to show that the chief executive is violating the constitutional provision that requires him to make an individualized decision in each case.
Burden of Proof
Morrall, the presiding justice concluded, failed to meet his burden of presenting such evidence.
The decision comes two weeks before the Supreme Court is to hear argument in the case of convicted murderers Robert Rosenkrantz and Mark Smith. Trial judges in both cases ruled that there was no evidence to support the governor’s parole vetoes.
In Rosenkrantz’s case, the Court of Appeal affirmed the order but declined to rule on Los Angeles Superior Court Judge Paul Gutman’s holding that Davis had adopted a “no-parole” policy in violation of the inmate’s right to an individualized determination.
In Smith’s case, the Supreme Court transferred the governor’s appeal to itself so that it could hear the matter at the same time as the Rosenkrantz case. Orders releasing the inmates were stayed in both cases.
Morrall, who was going through an acrimonious divorce and fighting over visitation rights, shot his estranged wife seven times at her home in 1981. He took her to the hospital, where she was pronounced dead, and admitted what he had done.
He was convicted of second degree murder in 1983 and sentenced to 17 years to life in prison.
He was found suitable for parole in 1993, but the finding was later rescinded. He had three more parole hearings before the board again found him suitable in 1999.
Davis, under powers granted him by Proposition 89—a 1988 measure amending the state Constitution—vetoed the decision, then did the same thing when the board again found Morrall suitable for parole in 2001.
The governor found that the circumstances of the crime showed that Morrall was unable to control his anger, and that since he “had only limited involvement in stress or anger management programming” in prison, there was a significant possibility he would lash out again.
Sacramento Superior Court Judge Jack V. Sapunor denied Morrall’s habeas corpus petition, saying there was “at least some evidence” to support the governor’s findings.
Scotland, writing for the Court of Appeal, agreed with Sapunor both as to the standard and as to its application to Morrall’s case.
The governor’s review, Scotland elaborated, is limited to the factors governing suitability for parole set forth in the applicable statutes and Board of Prison Terms regulations.
But if “there is information in the record sufficient to trigger the exercise of some measure of executive judgment and discretion in the application of the statutory and regulatory standards,” the jurist said, “it must be said that the Governor has some basis in fact for his decision, and we must defer to his exercise of executive discretion.”
Morrall, the justice acknowledged, presented a great deal of evidence tending to show that he was suitable to be released.
He had no other criminal record, had never been in serious trouble in prison, is educated and employable, has had generally favorable psychological reviews, and has good relations with his family, including his second wife—he remarried while free on bond—and sons from both marriages, the presiding justice noted.
But while those factors were not mentioned in the governor’s report, Scotland said, that does not necessarily mean that Davis failed to consider them. Proposition 89, the presiding justice explained, requires the governor to report his reasoning to the Legislature but does not compel him “to discuss in detail every factor that was considered by the Board.”
The lack of discussion of the favorable factors, Scotland elaborated, implies that Davis had no factual disagreement with them, not “that he failed to consider them.” And the governor, he went on to conclude, had substantial reason to find that the positive factors were outweighed by the negative ones.
Scotland cited evidence that Morrall had threatened to kill his wife throughout the dissolution proceedings, voicing anger over nearly every aspect of the case—having to divide property, limited control over when he could see his children, and continuing obligations to pay support.
Going to her home armed and bent on confrontation, the jurist wrote, Morrall “consummated the life-endangering anger he had been harboring, and also deprived his young children of a mother and imposed upon them the stigma of having a murderer for a father.”
The fact that Morrall was convicted of second, rather than first, degree murder does not preclude the governor from concluding that the gravity of the crime was sufficiently great to justify a parole veto, Scotland went on to say.
“Contrary to Morrall’s suggestion, all second degree murders do not reflect the same measure of danger to the public safety,” he wrote. “…Rather, the range of conduct that can result in a conviction for second degree murder is extremely broad with respect to such things as the violence, viciousness, cruelty, and callousness exhibited by the defendant.”
The case is In re Morrall, 02 S.O.S. 4992.
Copyright 2002, Metropolitan News Company