Criminal
Aug. 1, 2002
Nortorious Cases Suit Attorney
SANTA ANA - Denise Gragg hasn't gotten any hate mail yet. But she wonders how long it will be before her highly publicized role as defense attorney for accused child killer Alejandro Avila sparks some negative reaction.
But she wonders how long it will be before her highly publicized role as defense attorney for accused child killer Alejandro Avila sparks some negative reaction.
Already, someone confronted Gragg's colleague, Orange County Public Defender Lorene Mies, in a restaurant and demanded to know how she could defend Avila against charges he kidnapped 5-year-old Samantha Runnion, sexually assaulted her and left her nude body near Lake Elsinore, Gragg said. And Mies represented the 27-year-old defendant only during a brief, but televised, court appearance.
Gragg, 46, who heads the Orange County public defender's death penalty team, has plenty of practice in notorious cases.
In death penalty cases in heavily pro-law enforcement Orange County, Gragg has racked up an impressive record in convincing juries to spare her clients' lives.
Three men she defended are in prison for life without possibility of parole; two are on death row, a notable outcome, given the county's conservative juries.
Gragg said she has no qualms about saving the lives of some of society's most-despised defendants.
"The truth of the matter is it is still overwhelmingly the people of color and the disenfranchised who are getting death," Gragg said. "These inequities we can tolerate in the legal justice system if the only consequence becomes imprisonment because we have to. But I don't think we can tolerate them in a system that tolerates death."
Gragg is an ardent foe of the death penalty.
She once organized a black-armband protest for death row inmate Robert Alton Harris, who later was executed, and she took part in a candlelight vigil for Oklahoma City bomber Timothy McVeigh.
She never entertains doubts about defending murderers, rapists and child molesters, she said, "because the only way this system works is if someone is fighting as hard as they can on either side."
"The only way to guard against [an innocent person being convicted] is for people to do what I do in every case," she added.
With only 10 days remaining before Avila's arraignment Aug. 9, Gragg said she has been hamstrung in pursuing a defense because the prosecution hasn't provided her with any details about its investigation.
Citing a lack of information about the prosecution's case against her client, as well as ethical considerations, Gragg will not comment on Avila's case.
But she will say that her opposition to the death penalty makes it easy for her to fight for any client's life.
"I don't believe that any of us have the right to take a life in cold blood," she said. "Our system is not able fairly to pick out those who deserve death and those who don't."
A case in point is wrongfully convicted murderer Dwayne McKinney, who with Gragg's help was released from prison in January 2000.
McKinney, who spent 20 years behind bars, had been convicted of shooting a Burger King night manager named Walter Bell. In a petition for a writ of habeas corpus, Gragg argued that another inmate fingered a third man in the killing. She also argued that the lead investigator on the case had tampered with eyewitness testimony.
After a four-month investigation, Orange County District Attorney Tony Rackauckas found "reasonable doubt" that McKinney was guilty. Orange County Superior Court Judge Kazuharu Makino signed Rackauckas' petition for release.
In one of Gragg's previous death penalty cases - that of Mark Hilbun, a postal worker who went on a killing spree that left two dead and five injured - Gragg used an insanity defense, which led to a hung jury in 1997.
Christopher Evans, a former Orange County senior assistant district attorney, who faced off against Gragg in both the Hilbun case and the 1997 death penalty trial of convicted rapist and murderer John Famalaro, said Gragg is a "triple threat" who "oozes credibility."
The prosecution normally has a lease on believability, Evans said. But Gragg manages to reverse roles, he added.
"Without her stating it, [jurors] sense her personal belief in the truth of her position, and that ain't good [for the prosecutor]," he said.
Gragg doesn't dance around a courtroom like a bleeding heart, Evans added. Instead, she goes for the throat.
"It's one thing to go for the jugular," he said. "It's another to know when to go for the jugular."
In Hilbun's case, Gragg understood how to subtly work the insanity issue, leading to jury deadlock, Evans said. Not believing he would be able to get an execution, Evans took the death penalty off the table, and Hilbun was sentenced to life without the possibility of parole.
In the more recent case of a one-armed butcher, John Samuel Ghobrial, accused of assaulting, killing and dismembering an 11-year-old boy, jurors ignored Gragg's explanation of mental disease and sentenced the Egyptian national to death.
With its gruesome charges of the sexually motivated murder of a child, Ghobrial's case resembles Avila's.
Gragg, however, had the added burden of defending a Middle Eastern defendant after the Sept. 11 terrorist attacks on New York and Washington.
Gragg said she wanted jurors in Ghobrial's case to understand that molesting a child is not a choice but a compulsion borne of mental illness.
"I guess the goal ultimately is to explain that no child goes through their development thinking they want to molest a child," Gragg said. "What I don't think people realize is that child molesters aren't having fun. ... The act of molesting a child is not an act of free will like brushing your teeth or going to the movies."
As for general death penalty defense strategies, Gragg said digging into the background of the accused is a fundamental first step. She researches whether her client has a history of mental illness, mental retardation and emotional or physical abuse. And she reminds jurors that her client is a human being.
"My clients are going through the most stressful period in their lives," Gragg said. "And they're people."
Raised in Yorba Linda, Gragg graduated from Boalt Hall in 1981 and joined the public defender's office in 1986. Her work on death penalty cases earned her the 2001 California Public Defenders Association Attorney of the Year award.
Freeing McKinley, however, was the highlight of her career, Gragg said. But in her line of work, she faces far more disappointments than triumphs.
"Every time I lose is a low point," Gragg said.
Jenna Bordelon
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com