Government
Jun. 1, 2001
AG Tries to Nix Killer's Subpoenas
LOS ANGELES - The state attorney general asked a judge Wednesday to block convicted murderer Robert Rosenkrantz's attempts to subpoena Gov. Gray Davis for a hearing on whether Davis illegally reversed Rosenkrantz's parole.
The closely watched case, which is expected to reach the state Supreme Court, will try whether the governor or the state's courts have the last word on which inmates are paroled.
At a hearing Tuesday in Van Nuys, Deputy Attorney General Robert Wilson urged Supervising Judge Paul Gutman to quash the subpoena and two others served by Rosenkrantz's attorneys on Board of Prison Terms staff members.
"This is an attempt to make an end run around the board to get at what is imagined to be the deliberative process," Wilson said.
Will Fitton of Latham & Watkins, who represented amici such as the American Civil Liberties Union and several religious groups Wednesday, said the Rosenkrantz team wants to question Davis about why he does not review cases in which the parole has been denied.
"It goes to a showing of his policy of no parole [for convicted murderers]," Fitton said outside court. "The only discretion he is exercising under Proposition 89 is to reverse parole grants."
Proposition 89 is the voter-approved constitutional provision that gave California governors authority to review parole grants starting in 1988.
Rosenkrantz's attorney Donald Specter of the Prison Law Office said the planned depositions of the two parole board staff members "are only to elicit testimony about day-to-day administrative acts ... nothing to do with political issues."
Specter also asked the court Wednesday to allow him to subpoena an audiotape made by the governor of his April 1999 conversation with Los Angeles Times reporter David Lesher.
Lesher submitted to a deposition about an interview in which Davis allegedly promised not to release any convicted murderer on parole during his tenure.
Wilson has asked the court to exclude Lesher's deposition and the resulting article from the case. The deputy attorney general said that he was not aware that any such audiotape had been made.
The governor's supposed "no parole" pledge is at the heart of Rosenkrantz's argument that Davis illegally revoked his parole twice. Since taking office in 1998, Davis has reversed all but one parole grant given by the parole board.
But Gutman questioned whether the deposition would delve into Davis' thought processes in making his parole finding in the Rosenkrantz case - an area that is legally off limits.
"This seems like a way of going around the barn to get to the same issue," Gutman said.
The judge aggressively questioned Wilson for much of the two-hour hearing about the attorney general's views on the limits of Davis' power over parole and how far judicial review of that power should extend.
"Is it the attorney general's position that the governor's reversal of the parole grant trumps the court of appeal in the matter of Rosenkrantz?" Gutman asked, referring to an appellate court opinion that no legal reason existed to deny parole for the 34-year-old Calabasas man.
The attorney general long has contended that judicial review of the governor's parole powers should be limited to determining that the governor followed due-process rules and that his decision was not made "capriciously or arbitrarily."
Specter, however, pushed Gutman to review the evidence the governor and the parole board used to reach opposing parole decisions in Rosenkrantz.
Gutman scheduled a June 7 hearing to rule on whether the subpoenas should stand.
Gina Keating
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