No mercy

California gov. Pete Wilson is unlikely to grant clemency to a Thai national on death row, despite appeals from jurors, lawyers and the warden of San Quentin.

By Marc Herman

Published November 13, 1998 8:00PM (EST)

California Gov. Pete Wilson is considering the clemency request of death row inmate Jaturun "Jay" Siripongs, scheduled to die by lethal injection Nov. 17. Wilson has rejected the five previous clemency requests he's faced in his eight years as governor. But Siripongs, a Thai national on California's death row for murdering two people since 1982, may test his resolve.

Siripongs' case, with an unknown accomplice still at large, appears to be the most compelling appeal for clemency in Wilson's tenure. In the past several days, two of the jurors who convicted him have reversed themselves, saying they do not think he acted alone, and that an accomplice actually committed the murders. Additionally, the former warden of San Quentin prison, Daniel Vasquez, has asked Wilson to spare Siripongs after calling him a model prisoner.

But Wilson is said to be thinking about a 2000 presidential bid, and a 6-0 record on executions may be important to him. A likely Republican front-runner for the nomination, Texas Gov. George Bush Jr., recently refused to grant clemency to Carla Faye Tucker in a case in which even many death penalty advocates suggested clemency. Wilson can't afford to look weak on capital punishment if he wants to take on Bush.

"It's political. The Thai government has offered to take Jay, and Wilson won't let them do that," said Laura Magnani, a spokeswoman for the American Friends Service Committee, a Quaker organization that opposes capital punishment. "With people who've committed crimes here, he's asked for federal assistance to deport them. But when you get an actual case here he doesn't do that." Wilson spokesman Ron Lowe called the charge "sad" and said politics would have no bearing on the governor's decision.

Living in the United States two years at the time, Siripongs took part in a robbery of the Panthai market in the Los Angeles suburb of Garden Grove on Dec. 15, 1981. During that robbery, Packovan "Pat" Wattaporn and Quach Nguyen, of Thai and Vietnamese background, respectively, were murdered, their bodies left where they fell and discovered several hours later. Caught trying to use Wattaporn's credit card the next day, Siripongs was the only person arrested in the crime.

But the case against Siripongs has become complicated. The head of the Orange County public defender's office, Carl Holmes, said in a letter to the governor last week that he believes his office provided an inadequate defense. And two jurors have signed statements attesting to doubts about Siripongs' guilt and about the quality of defense he received.

"All of the jurors thought Mr. Siripongs could not have acted alone," wrote juror Sylvia Twomey in a statement this week, adding she "had grave doubts that Mr. Siripongs was the killer." Twomey, who now lives in Oregon, wrote that she had expected his sentence to be reduced to life in prison, and learned of Siripongs' planned execution only when she was contacted by reporters.

Twomey said she was convinced to vote for death in part because her boss at California Polytechnic College in Pomona, where she worked, was concerned about paying her during her absence for the long trial. She also claimed that anti-immigrant bias in the jury room clouded the case.

"One male juror argued that we should not sentence Mr. Siripongs to prison because California's citizens would then be required to pay to house him," wrote Twomey. "The juror complained that Mr. Siripongs was an immigrant wrongfully taxing the American system. I told this juror that we could not sentence a man to die simply because he was an immigrant, but I do not think my words made an impact."

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A second juror, Sandra Ferguson, also said in a statement that Siripongs received an inadequate defense, and asked he be resentenced to life in prison.

Orange Country Deputy District Attorney Jim Tanizaki, who is handling the case for the county, said the letters should be disregarded. "This juror is almost having buyer's remorse. You have to wonder what is really behind it. If you have questions you don't wait 15, 16 years. I don't find much credibility in this."

Tanizaki says he is confident Siripongs is guilty of murder. An accomplice drove Siripongs from the crime, argues Tanizaki. "It's always been the opinion that there was an accomplice. It appears that whoever sat in the driver's side didn't bleed or didn't have blood," while Siripongs had wounds on his hands, he said. Siripongs' lawyers describe the injuries as defensive wounds, and argue Siripongs attempted to stop the crime.

Defense papers filed with appeals in the case claim unidentified fingerprints, hair and blood were discovered at the crime scene. They suggest several possible suspects, including the sister of Siripongs' girlfriend and a man suspected of murder in Thailand. Siripongs has refused to name his accomplice, a reluctance his lawyers claim is based on his Buddhist background.

"He believes if you do evil, you must do good," said his current lawyer, Linda Schilling. Naming his accomplices would compound his guilt, she says, even if it might exonerate him. "He believes punishment comes in the next life." Schilling contends the initial defense attorney, James Spellman, was too busy running for Congress to pay attention to the case.

"This assignment is crazy," wrote Spellman in a memo to his supervisor at the time. "I have two 187s [murder cases] going on in Aug -- one of 'em a Spec Circs [special circumstances] -- How the hell am I to adequately prepare on this case or for that matter on my dozen or so other cases?" Spellman has not commented on the case.

Siripongs' case has also brought to light a widespread but little-known section of the penal codes, the felony murder rule, applied in 37 states, according to Richard Dieter of the Death Penalty Information Center in Washington. The rule allows murderers' accomplices to be charged and sentenced as if they were the actual murderers in many situations. That complex law, and its guilt-by-association overtones, may ultimately have contributed to Siripongs' death sentence.

At the time of the trial, 1982, California allowed capital punishment for accomplices convicted of murder under the rule. Whether or not he was the killer, simply proving Siripongs' involvement in the robbery would have been sufficient to qualify him for capital punishment, according to Ira Robbins, a criminal law expert at American University in Washington.

But the law soon changed. In 1983, the California Supreme Court "clarified" its felony murder rule to make life without parole the stiffest sentence for accomplices. The change, had it happened a year earlier, may have altered Siripongs' lawyers' tactics. But with the felony murder rule hanging over their head, it appears Siripongs' lawyers tried to prove he had nothing to do with the crime at all.

"If that was the law 10 months earlier, then Siripongs' lawyers wouldn't have gone for an all-or-nothing defense," said San Francisco attorney Andrew Love, part of the legal team that defended the last person killed on California's death row, Thomas Thompson, executed in July.

Siripongs' Thai background may also place Wilson, a strong capital punishment advocate, into the middle of an issue extending beyond California, to at least Washington and perhaps as far as Bangkok.

Both the Thai foreign ministry and Thailand's ambassador to the United States have written Wilson seeking Siripongs' release and offering to remove him to Thailand and imprison him there, according to Wilson's office. Also, Siripongs was not offered an opportunity to consult with the Thai consulate after his arrest, a right normally guaranteed under the Vienna Convention, an international agreement that in part establishes terms for criminal cases involving foreign nationals. Thailand, however, is not a signatory to the convention.

A similar case in Virginia two years ago, involving the death sentence of a Paraguayan citizen, led to an international incident. In that case, the man was executed at the insistence of Virginia Gov. Jim Gillmore, over the protest of Secretary of State Madeleine Albright, the Hague and Paraguayan officials. A Honduran man was executed in Arizona the following week.

The Thai requests are receiving no special consideration, according to the governor's office.

"The question is, if it wasn't him, was there enough evidence to justify capital punishment," said criminal law expert Frank Zimring, a professor at the University of California-Berkeley's Boalt School of Law. "And it doesn't appear that there is." He does not believe Wilson will commute Siripongs' sentence, however.

"The quality of mercy in California is more than strained," said Zimring. "If the governor grants mercy, they're going to have to find him a pen."

Marc Herman

Marc Herman is a freelance writer in Barcelona, Spain.

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