Public Domain Photo Courtesy of California Department of Corrections and Rehabilitation

Capital punishment, the slogan goes, means those without the capital get the punishment. Over 45 years of labor in criminal law has yet to show me a case to disprove the slogan. The only capital case I defended in private practice was one of very few I’ve ever seen where the lawyers were retained rather than appointed. And we won, victory being defined as the government not killing our client.

Death row, like most poor neighborhoods, has a disproportionate number of minority residents. Those of us who come from poor neighborhoods know that there are mean people there, and plenty of conditions to make good people mean. We also know that the vast majority of poor people survive those conditions without becoming mean.

This justifies in the minds of some what they call “putting down the mad dogs,” in spite of the fact that it is much more expensive to kill sociopaths than it is to lock them up without the possibility of parole. These are the choices for dealing with the people who have become too dangerous to live among us. Such people do exist. In my 17 years as a full time judge, I had contact with three of them, out of thousands of criminal defendants, and homicide defendants in numbers close to triple digits.

I don’t trust the criminal justice system to pick those three sociopaths out of a crowd as it exists or as it can be made to exist for any sum the taxpayers will pay. Sociopaths, you see, are not always poor people. Some of them are even white, as were two of the three I encountered.

In the days within my lifetime when we had the death penalty for rape, those executed were most often dark skinned men accused of raping white women. In this time of DNA exonerations into the triple digits we understand that cross-racial identification is very unreliable, and certainty is no guarantee of accuracy. At this writing, The Innocence Project claims 365 persons exonerated by DNA, 20 of whom spent time on death row.

If you come upon somebody in the act of raping your daughter and you kill him, no grand jury would indict you and no petit jury would convict you — -provided you have a good lawyer to be sure your story gets told and the funds to get scientific evidence processed, including a do-over for any tests that make no sense from the defense theory of the case. How much justice can you afford?

There are very few trials where everybody agrees what happened. If you are a juror, you have messy buckets of facts brought into the courtroom and lawyers are the professionals who assemble stories from those facts…without regard to what they may personally believe. As men and women, they are entitled to their opinions, but not as professionals.

A lawyer’s first duty in a capital case is to tell the best story that can be told with the facts as they come.

A lawyer’s second duty in a capital case, should the first not be successful, is to make absolutely sure that the jury understands the life they are being asked to end.

This brings me to an Indian I want you to know, Douglas Stankewitz, the longest surviving inmate on California’s death row. Like most Indians who find themselves in a group of non-Indians, he is currently known as “Chief,” but unlike many Indians, he is proud of the nickname. The government set out to kill Chief because Theresa Greybeal was shot dead in the course of a robbery by someone in a group of people high on heroin at the time, and there is no question that Douglas was one of the the group. There is a serious question about who pulled the trigger, and juries are reluctant to kill individuals who did not pull the trigger, but there is no question that a woman is dead who ought to be alive. She did not resist the robbery. As far as the jury knew, Douglas Stankewitz pulled the trigger.

We will never know based on either of his two trials. Evidence that would have cast doubt on who pulled the trigger was not turned over to the defense for either trial. Douglas was convicted in 1978 and became the first person sentenced to death when California reinstated the death penalty. That conviction was reversed because the trial court failed to have Douglas evaluated to determine whether he was competent to stand trial.

The trial was conducted again in 1982 with the same result. The only evidence that Douglas pulled the trigger came from a minor co-defendant testifying in exchange for leniency. He later recanted his testimony, but by that time Douglas was on death row. Combine this with the state’s failure to turn over physical evidence that cast doubt on Douglas’s guilt, and the guilt phase of the trial looks seriously flawed. However, it was in the penalty phase of the second trial that any pretense of fairness went right off the rails.

In a death case, you are introduced to a man by the worst thing he’s done in his life, a standard that would be a challenge to any of us even if the task were less than to befriend twelve strangers who have nothing in common but their sworn willingness to kill you if the government gives them a good enough reason.

It’s necessary to talk about what the jury did not hear in the penalty phase of Douglas Stankewitz’ capital murder case, but because of the context it goes without saying that his upbringing is not a legal or moral excuse. How much volition Chief was capable of exercising is, however, the kind of issue that is the reason a capital case has a penalty phase. How he came to be in the defendant’s chair bears on whether it is rational for the government to demand his blood.

Just as you can’t discuss federal Indian policy without recourse to history, it’s hard to introduce Douglas Stankewitz outside of the historical context he represents, the spectacular destruction of California Indians. Organized killings already underway under the Spanish and the Mexicans were adopted and paid for by the state from 1850 to 1873. Under California law, Indians could not own property (specifically a gun), serve on a jury, testify against a white person or marry one.

Not counting bounties on Indian scalps offered by local governments, the state spent $1.7 million to arm and outfit militias tasked to wipe out Indians. In addition to government funded bounties on Indian men, women, and children, California passed a statute that allowed any white man to declare any Indian to be a vagrant and bind the Indian to serve a landowner or businessman without pay other than food. They reduced the population from 150,000 to about 30,000. The survivors had lost land and livestock and lived in abject poverty.

Douglas Ray Stankewitz is a citizen of the Big Sandy Rancheria, as they call reservations in California. He was born on May 31, 1958, to Marion Sample Stankewitz, the sixth born of her eleven children. She was the fifth of seven children. Her father, Sam Jack Sample, was Mono and Chukchansi, and her mother was Mono. She met Douglas’s father, a truck driver of Polish descent, when she was picking grapes and he was her supervisor. They were both practicing drunks.

Douglas was born in the year the Big Sandy Rancheria was terminated, a part of the national policy to force Indians to assimilate. For most of the time that Douglas was being failed by the adults around him, the Big Sandy Rancheria did not exist in the eyes of the federal government. California is a Public Law 280 state, which means that state law would have applied on the reservation anyway. The Indian Child Welfare Act, a law the current Supreme Court is expected to invalidate as soon as a proper case is presented, did not yet exist to protect Douglas.

His mother was raised on the Big Sandy Rancheria, a place until about 20 years ago marked by poverty, alcohol abuse, and hopelessness. She drank beer by the case while pregnant, and when Douglas was born his father was in jail for beating his mother. His mother had no prenatal care. She first saw a doctor regarding her pregnancy when she was in labor.

Douglas was beaten regularly by both parents and had to be taken to the emergency room three times before he was one year old.

At age six, he was found injured and wandering on the streets. The police took him home, where his mother admitted to having beaten him. They did not remove him from the home, apparently because the process would have been too complicated. There were nine children in the home and the father was in jail.

Less than three months later, Douglas was brought to the police station by a neighbor who found the boy on his doorstep, again injured. This time, all the children were taken away and his mother was jailed.

After two unsuccessful foster home placements — the foster parents were unable to deal with the boy’s emotional eruptions — -seven-year-old Douglas was committed to Napa State Psychiatric Hospital for 90 days. While he received no treatment beyond a diagnosis of severe emotional disturbance, this placement was extended twice, for a total of nine months. This child in an adult institution became easy prey for sexual assault.

He was then placed in a foster home where he stayed for nearly four years, the second longest stay at one address he has had in his life. The longest is his current address in San Quentin. He received no visits from his natural family during this placement. His foster mother made a personal plea to get Douglas into the third grade:

The day I went to pick him up, I’ll never forget. He went down on all fours in a corner, growling and snorting at me. On the way home, he jumped over into the back seat and clawed all the stuffing out of the upholstery. When we walked into the kitchen of my home, he shuffled over to the dish rack, full of dry dishes, and threw the whole thing across the room. I had been told not to physically restrain or punish him because he would go berserk if touched, but I figured he was already berserk, so being as big as I am, I just grabbed him from behind, wrapped my whole self around him, down we went and I just held on for dear life until he calmed down.

It’s taken me all this time to tame him. I’ve taught him to talk instead of grunt, to use the toilet, to dress himself, to use silverware, to take care of animals without hurting them, to ask instead of grab… He’s been begging me to teach him to read and write and do numbers like the other foster kids, so I think he’s ready for school… Will you take him in your class? If he’s any trouble, just call and I’ll come pick him up.

From 1970 until his first commitment to the California Youth Authority in 1972, Douglas had no fewer than 13 placements, the longest being five months. The first was back with his mother, where he learned to sniff paint.

For a short period, he was placed with an aunt back on the reservation, until her children were taken away because of her drunkenness. The aunt remembered before Douglas came to live with her “a lot of times there was no food in (Douglas’ mother’s) house. Sometimes we’d save our oatmeal for them because they had nothing. Sometimes I’d give them a bag of potatoes just so they would have something…”

During the time Douglas lived with his aunt, his mother was sent to prison for manslaughter.

At age 13, Douglas got his first criminal referral to juvenile court. With some adults, he showed up too late to get fed at a Fresno soup kitchen. The adults determined to rob someone to get money for food and Douglas involved himself by going through the victim’s pockets.

Between 1972 and 1977, Douglas spent all but eight months in either Youth Authority lockups or the Sacramento County Jail. In a little over two months from the time he was released until the arrest that landed him on death row, Douglas Stankewitz consumed (according to the individuals around him) massive quantities of marijuana, alcohol, methamphetamine, and heroin. At the time of the killing that brought him to death row, he had not slept for at least two days.

He has now spent 41 years of his life on death row. Douglas is the longest surviving inmate on California’s death row, but virtually all of his life before death row was spent under the “supervision” of the state of California in one guise or another. We don’t know what the jury would have made of this, but we do know that Stankewitz’ American Indian identity made the jury’s decision for death inevitable. This statement is shocking, but so are the actions of Chief’s court-appointed lawyer, the ex-judge Hugh Goodwin.

Since I am a retired judge and know something of the work, I was prepared to think an ex-judge from a criminal court might make a good defense attorney in a capital case if he had the stomach for it.

Problem is, Goodwin became an ex-judge because of his predilection for sentencing criminal defendants to go to church. He was convinced that his job as a judge was to bring people to Jesus. It became apparent in the Stankewitz case that he saw his duty as a criminal defense lawyer the same way.

Having had a hand in one capital defense, I’m here to say the responsibility of a capital defense can keep you awake at night. Mr. Goodwin’s sleep was less troubled than mine, because he took the attitude that his client’s life was in God’s hands rather than his own.

Because there was no question that his client was involved in the killing — only whether he pulled the trigger — Mr. Goodwin had ample notice that the main business of this trial would be in the penalty phase. There was much for the jury to hear in the penalty phase, but Mr. Goodwin did not find it important to inform the jury that his client had been born with fetal alcohol syndrome, beaten, starved, sexually assaulted and deprived of any loving relationship with an adult.

At the penalty phase, Goodwin called a jailer and an assistant district attorney to give their opinion that anybody can reform if they allow the Christian God to come into their life. Predictably, the cross-examination of these witnesses centered on whether they had any reason to believe Douglas Stankewitz had invited God into his life? They did not.

Errors by a lawyer will not require reversal if the lawyer had a tactical reason for making the errors. Hugh Goodwin swore to this statement about his tactics:

I have never believed in the separation of church and state, as I made clear when I was a judge. I recognize that this is a controversial view which is not widely shared. When I presented the testimony of a Deputy District Attorney and the Fresno County Jail chaplain that they believed people could be transformed by the power of God if they let God into their lives, I knew that it was likely that on cross-examination they would state that there was no evidence that Mr. Stankewitz would let God into his life. Nonetheless, I believed that by presenting this testimony, God’s will would be done, and accordingly I did so.

Douglas Stankewitz is a Mono Indian, born on the Big Sandy Rancheria, raised by the State of California in an incompetent parade of foster homes, mental hospitals, and juvenile facilities. His grandfather, Sam Jack Sample, was a ceremonial singer and medicine man who died in the act of singing when Douglas was a small boy.

As idiotic as the “power of God” defense was in a capital murder case, it would have some prayer of swaying a jury against death if there were a shred of evidence that Douglas Stankewitz had a Christian bone in his body. Goodwin might as well have entrusted his client’s life to Zoroaster or appealed to the beliefs of Jainism for all the chance his client had of reaching out for that lifeline.

The defense in a capital case must demand that the jury understand the life they are being asked to end. In this case, the jury heard goodness tied to being Christian, and this court-appointed defense lawyer might as well have said plainly that the only good traditional Indians he ever saw were dead.

In 1983, the Big Sandy Rancheria regained federal recognition and opened a casino. With the casino funds, they now have an office to enforce the Indian Child Welfare Act and a Head Start program.

When I wrote the above, Douglas Stankewitz had no execution date set and the litigation to get him a new and fair trial was continuing. I was sitting as a judge only by assignment because I had embarked on my second career as a criminal justice professor. I involved myself in Chief’s case by writing an amicus curiae brief on behalf of the Texas Indian Bar Association seeking a new sentencing trial on the basis that a defense based on the power of the Christian God was worse than useless for an American Indian defendant. I believed that he was just another man without the capital getting the punishment and I did not believe the state of California needed his blood whether or not he pulled the trigger.

Subsequent to the brief, I wrote a cover story for Indian Country Today, on which this article is based. I have a number of letters from Chief that prove he has learned to write. He writes less well than my son wrote in elementary school but my son attended all of elementary school and Douglas did not.

In 2012, the Ninth Circuit Court of Appeals ordered another trial based on the travesty recounted in this article. In preparing for the third trial, Chief’s lawyers discovered evidence that should have been produced at the first trial. It did not help the government’s case that the one alleged eyewitness — the one who had signed an affidavit recanting his identification of Douglas as the shooter — had died. All of Chief’s co-defendants are either dead or they have served their time. Douglas Stankewitz is the only individual still being pursued for this crime.

On May 3, 2019, with the agreement of the Fresno District Attorney, Douglas Stankewitz was re-sentenced to life without possibility of parole. The taxpayers of California spent many hundreds of thousands of dollars on the attempt to kill Douglas even though most of his defense team got paid exactly what I got: zero. As a judge, I never counted the costs of court time because I knew the court was a fixed expense that was not going anywhere if any one case went away. But just adding up the payments to lawyers and experts on both sides and the production of records for the many appeals and writs of habeas corpus, there is no question that California spent hundreds of thousands of dollars in this 41 year crusade to end Chief’s life.

It may not be over. At the time of the re-sentencing, there were motions for discovery of physical evidence pending that are well within what a criminal defendant is entitled to discover. Should those motions be granted, there will be no way that the prosecutors can comply. They have lost too many files over the years. What, then, will the trial court do to punish the inability to produce material evidence the defense team is plainly entitled to see?

California was willing to pay as much for one dead Indian as it once paid for thousands of dead Indians. Maybe it is a measure of civilization’s progress that the price of an Indian life has increased so substantially. Or maybe it is a measure of civilization’s lack of progress that everybody involved in this admittedly heinous crime is walking free while the Indian is serving life without parole — just another man without the capital getting the punishment.

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