An Interview with Riverside County District Attorney Mike Hestrin
S. E. Williams
Last week, Part 1 of this series looked in depth at a report which highlighted Riverside County along with nine other municipalities in the nation for their purported over-use of the death penalty.
The report by the Fair Punishment Project (FPP), a joint initiative of Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice and its Criminal Justice Institute titled, Too Broken To Fix, Part 1, An In-depth Look at America’s Outlier Death Penalty Counties, alleged, Counties that use the death penalty the most [including Riverside County] are plagued by prosecutorial misconduct, bad lawyers and racial bias.”
Riverside County District Attorney Mike Hestrin recently sat down with The Voice/Black Voice News and provided his assessment of the report; his views on the death penalty; and the changes he has implemented in regards to this issue since he took office in January 2015.
Hestrin’s Philosophy on the death penalty
SW: Previous to your election as District Attorney of Riverside County you successfully prosecuted seven death penalty cases. What is your philosophy about the death penalty in general?
MH: I’ve been a prosecutor for almost twenty years, including the last year and a half as the elected District Attorney (DA). I spent almost 10 years in the homicide unit and I did prosecute a lot of murder cases, more than 40 of them, of which seven were capital cases. My philosophy is—I believe in the death penalty and that we should have it in California. I am a proponent of saving it; but, I think [our use of ] it should be rare. I’ve learned over the years, it is very difficult, it is hard to prosecute the cases. It is hard on everyone—hard on jurors; hard on judges; hard on prosecutors.
The reason it is so hard on everybody is that you’ve got this family—the victim’s family usually and you feel their immense loss. Their lives have been destroyed and certainly many times, irrevocably changed. You are trying hard to get justice for them. And then you go into court and you’ve got this legal process— and sitting on the other side is a human being who at the end of it, it may result in the death of that human being. You sit and you have snippets of conversation you see it is a very difficult thing.
I’m not someone who thinks we should have more executions. My personal standard when I decide on the death penalty is, “Is this really necessary? Do the facts cry out that nothing else would be justice? Because, if life without parole would be justice in that case, that’s the way we would go.”
SW: One of the things that is always perplexing is when you look at the data it seems the death penalty does little to deter such crimes.
MH: I don’t know if it does. It is a great question. There is research on both sides and I can’t answer the question because I certainly think there is an argument to be made. It makes sense to me because many times the people that commit these heinous murders are not rational in their thinking—a cold blooded serial killer is not going to be dissuaded one way or another. A cold blooded serial killer, whatever evil has him in their grips, they are acting out on that.
Accusations of over-aggressive prosecution and prosecutorial misconduct
SW: The FPP report highlighted three issues I would like your feedback on. One thing all of the counties highlighted in the report had in common was over-aggressive prosecution of death penalty cases.
MH: In commenting on the report itself, I’ve been around a long time and when you are a prosecutor people get mad at you and call you names and certainly as a prosecutor, you have to have a thick skin. I don’t think much of their report and I’ll tell you why and I’ll point out a few things.
I think it is more political advocacy disguised as academics. I’ll give you an example—they say in there in the Riverside section,’Mr Hestrin has tried seven death penalty cases himself and it is too soon to tell if he has committed misconduct himself in those cases.’ This is clearly not academic research, this is advocacy. I get that on the other side there are passions and that there are many people around the country who feel we shouldn’t have a death penalty, that the government shouldn’t do this. I respect that opinion. I disagree with it, but I respect it and I understand the passions behind it; but a report like this, they are really guiding the outcome they want—they are against the death penalty.
Having said that, one of the things they looked at was prosecutorial misconduct allegations that have been sustained. Riverside had zero percent. Right? I’m a new DA, I’ve been in office for a year and a half. What I would say to this is, ‘Before you make broad sweeping generalizations about our office I would say come and sit down, like you are doing today, and ask me about the death penalty and how we do it and what the real numbers are. And we will be glad to share all of that with you.’
The use and pay of private attorneys to defend the indigent in death penalty cases
SW: According to the FPP report, there appeared to be something misaligned about the way private attorneys are used and paid to represent the indigent in death penalty cases.
MH: It is a ton of work whether you are on the prosecutor’s side or the defense side. Of course, we prosecutors don’t get paid more; defense attorneys are in a different situation. Many of them, especially if they are private attorneys, are running a business and so in order to get attorneys of that caliber, you have to pay. We run into situations where you have indigents and of course they deserve the same level of representation. In my opinion, the public defenders in Riverside County, especially at that level, are very good. And so when you have “conflict attorneys” you have to make sure they are at that level. One of the things that comes up over and over again is that the qualifications for taking one of these cases are pretty strict—you have to qualify. You mentioned there is one attorney [in Riverside] who handled a number of death penalty cases. Unfortunately, that does happen and that is a problem.
SW: It seems he handled an inordinate amount compared to other attorneys in this area and around the nation.
MH: I know a few years ago there was a judge, [who] took an active role when she was presiding. She had meetings where she decided, ‘No, you have too many cases.’ Her point was we are going to build-in years and years of delay if one attorney has all these cases.
SW: What determines whether you will use a public defender or you will go outside for a private defense attorney for an indigent person?
MH: That is all determined by the Public Defenders’ Office (PD). If someone is indigent a PD is appointed. The PD will then do what is called a conflicts check to see if they have represented a witness, etc., [anybody associated with the case]. If they have, then they “conflict” off the case and it goes to a secondary level which is the Conflicts Panel. The attorney we spoke about earlier is on that Conflicts Panel. Certainly the prosecutor never gets involved in that. And the issue of pay, I hesitate to say anything, because the system requires that they [indigent defendants] get top level representation.
SW: I understand. I’m just wondering what guidelines or standards are used here in Riverside to select and pay these attorneys.
MH: There are guidelines. (This issue falls under the jurisdiction of the courts. The Voice will follow-up and report on this issue at a later date.)
Why are there so many death penalty cases in Riverside County?
SW: When you look at crime rates, population, etc. compared with other places in the nation why do you think Riverside County stands out on the death penalty issue?
MH: I think there are a couple of things. First, our size. We are a big county—the tenth largest in the nation and I believe, the fourth in the state of California. In terms of the whole county, we are a large, densely populated area. I think first and foremost, demographically our crime rate is probably a little higher than places like Orange County—we have a large population, a little bit higher crime rate.
I want to stay away from the terms conservative and liberal because I think it doesn’t mean anything anymore; but, I want to say our populace has a ‘tough on crime’ kind of bent. They’ve expressed that in their election of district attorneys and they also expressed it when the death penalty has come up— which it does frequently now. For example, in 2012 when Proposition 34 was on the ballot (it would have abolished the death penalty), it failed roughly 52 to 48 statewide; in Riverside County the “no” vote got more than 60 percent. I think when you put all of those things together, there is a political aspect to it.
There is one more aspect that I think should be considered. One is that the DA, himself or herself kind of puts their imprint on a policy. I mean they kind of set policy and I think I take a little different view on it than my predecessors. I think I am a little bit more restrictive in how I see the death penalty. So, I think going forward you will see fewer cases probably than my predecessors. And I can give you some specifics on that—but, that’s my guess. It’s sort of too early [to tell] because death penalty cases take years from when they happen to when we make the decision; and from that point on to the trial its two, three years, some times more because it’s a complicated process.
When I took office in January 2015 there were 22 [death penalty] cases pending. The law says the district attorney himself/herself has to make that decision so I interpreted that to mean any case that was pending but had not been tried when I took office, that I had to review. I think it would be a cop out for a prosecutor to say well that case was a death penalty but the decision was already made when I took office. So when I first took office I reviewed all of the pending cases. Out of the 22 cases, I reversed at least seven of them. During 2015, eleven new cases came in that were death penalty eligible that I also reviewed. Of those eleven new cases, I decided for death in four of them. That is an example of how I take a little more restrictive view than my predecessor. I think the number of pending death penalty cases [in Riverside] are going to come down over time. My counterpart Steve Harmon (Public Defender) also agrees with that. He said I am a little more measured in my use of the death penalty and I think I should be. I think the effects of my policy will be seen over time.
SW: Are there some key factors you look at when you decide yes, the death penalty on this one; or no death penalty on that one?
MH: Yes. Can I tell you a little about the process? I made a change when I took office that is important and I want your readers to know about it. When we make this decision, the law says the District Attorney will make the decision—I cannot delegate that; nor, would I. So when we make the decision we go through the case and we bring the most experienced lawyers into the room and we bring our victim advocate in—we call it a staffing. We have our assigned deputy district attorney present the case to us and we go on to have a discussion. We weigh the facts and the law. Before we do that, I meet with the family of the victim and I do it that day-we meet with them maybe an hour.
One of the changes I think is important is that I have started including the defense attorneys in our process. We’ve started inviting the defense council to come in to the assembled group and make a presentation and I think it has had an effect on us. We just want to get to the right decision so who better to make a presentation for the defense than the defense attorney.
I think that has been very good [as an addition to the process]. The public defenders take it very seriously. They submit letters to me and then they’ll make a presentation. There have been many times that they’ve brought things up in the presentation that we didn’t know and where we thought it was going one way and it was going to be a death penalty case—it changed.
To be continued next week.