Wednesday, April 3, 2002
George Grants Davis’ Request to Stay Judge’s Order That AIDS-Infected Killer Be Released on Parole
From Staff and Wire Service Reports
Chief Justice Ronald M. George late yesterday stayed a Los Angeles Superior Court judge’s order that a convicted murderer who suffers from AIDS, cancer, heart disease and dementia be released on parole.
George granted the stay, which will remain in effect until the full court acts on the matter, in response to a request by Gov. Gray Davis earlier in the day. Without the stay, Mark Smith was to have been released tomorrow.
Smith, 46, has spent 17 years in prison. He was convicted of second-degree murder in the 1985 death of Rick Diamonon following an argument over cocaine.
He was diagnosed with AIDS in 1994. He has been treated twice for cancer and suffers from progressive dementia, according to court records.
The state Board of Prison Terms had decided to parole Smith, praising his exemplary prison record and noted that the sentencing judge had supported the release.
But Davis overruled the board, calling Smith “a person with little regard for human life.”
In granting Smith’s release on habeas corpus, Judge Keith L. Schwartz said last month there was no evidence supporting the governor’s denial of parole. He said Davis had wrongly labeled Smith as one of the killers, rather than an accomplice, and had exaggerated his criminal history.
Deputy Attorney General Diann Sokoloff, who filed the request for a stay in San Francisco, said the governor was acting within the parole review power granted to governors under Proposition 89, which voters passed in 1988.
“The court isn’t authorized to second-guess the governor in the manner in which it did. It’s a legal issue,” she said. “It’s the interpretation of the law as it applies to the governor’s authority.”
It was the second parole case in which a California court has overruled Davis, who has opposed parole for 81 of the 82 convicted murderers the board recommended for release.
Robert Rosenkrantz was convicted in the 1985 killing of a Calabasas schoolmate who had exposed him as a homosexual. In denying parole, Davis labeled Rosenkrantz “a significant risk to society.” In January, the Court of Appeal ruled Davis had exceeded his authority in that case, but that ruling was stayed while the high court decides whether to review the panel decision.
Copyright 2002, Metropolitan News Company