Memorable Cases as Brown's Legal Adviser


Before we get into that, what are some of the cases or legal problems that stand out in your mind in the year that you were the legal adviser?


Well, the most memorable cases were the death row cases. I think I had somewhere around twenty plus or minus executions that occurred during the time I was in the governor's office. Among the first that I had anything to do with was the execution of Elizabeth Ann Duncan and two Hispanics, one named Luis Moya and one named Augustine Baldonado. The three of them were executed on the same day. That's happened twice, at least in this century, in California. I was there in Sacramento advising the governor when it occurred.


Is this the Ventura [County] Case?

1. People v. Duncan, 53 Cal. 2d. 803 (1960).




Where, I think, she [Duncan] hired the two to kill her . . . ?


She hired two men to kill her daughter-in-law, her pregnant daughter-in-law. That case came up about three weeks after I arrived in Sacramento. I had to advise the governor, prepare a report for him, and assist him at the [clemency] hearing that he held. He used to personally conduct all clemency hearings for people on death row. Earl Warren, when he was governor, did not do so, nor did [Governor] Goodwin [J.] Knight. But Pat Brown felt these people deserved to have their representatives talk to the governor personally in a public hearing. So that case stands out.

There was a case which illustrates the way Governor Pat Brown thinks and, also, his relationship with me. After I had been in the office about ten days getting acquainted with the files, I found that I had four executions scheduled in the first three weeks of being there. One of them involved a man named Veron Atchley.

1. People v. Atchley, 53 Cal. 2d. 160 (1959).

I quickly looked at that file and found that the
governor, acting upon the advice of Cecil Poole, had already indicated publicly that he would not intervene in the execution of this man. I put the file aside after having read it quickly and, seeing that the governor had already acted, concentrated on the Duncan and Moya-Baldonado case.

Around the tenth of August, I got on the governor's calendar and came in with the Duncan case and the Atchley case under my arm, talked to him about the Duncan case, and told him what arrangements I had made and the people I had invited to come to the clemency hearing. Everything was all set, they were all going to be there.

Then I said, "And then you're aware that two days after that, there is the Atchley matter." And he said, "What do you think of the Atchley case? What do you think I should do?" I said, "Well, Governor, you've already made up your mind on that case, you've already issued a public announcement that you're not going to intervene." And he said, "Answer my question." So I said, "Well, Governor, I am a former

prosecutor from Los Angeles. I would never have asked a jury to convict that man of first-degree murder, let alone ask that they impose the death penalty." And he asked, "Why?"

I said, "Because Atchley was convicted of killing his wife. He was estranged from her. They had been separated for a number of months. He was very much in love with her, but jealous, very jealous of her. He believed that she was having affairs with men, and he decided the night that she was killed that she was going out with a particular man. So he got very, very drunk, drank all evening. [He] bought a gun at the bar, went to her house, was lying in wait next to the garage until three o'clock in the morning. His intention was to kill the man he was sure was going to take his wife to bed. When she got out of the car, she was alone. Notwithstanding the fact that she was alone and there was no man with her, he put six bullets into her. He killed her."

So I said, "On those facts, with the alcohol and the confusion in his mind, the doubt, whether she was having affairs, and jealousy, it's a

clear heat of passion or, at least, a case where there are many, many factors which would not make it first degree."

And after I had finished, he said, "You know, that's not good enough." I said, "I beg your pardon?" And he said, "I'm not persuaded by that. That's not enough for me to interfere with what a judge and a jury have done."

So I thought to myself, "I can't believe what's happening here. He is well known throughout the world for being opposed to capital punishment. I am not opposed to capital punishment. I have given him my impression of what would happen in Los Angeles and have indicated to him, although indirectly, that if I were governor I would never permit this man to die because it was disproportionate."

I said to him, "You know, my belief of the governor's duty in the exercise of his clemency power is that he must try to equalize justice in the state of California and not permit local passions in one county to lead someone to be executed while in another part of the state that would not occur."


What county was that trial tried in?


Butte County.


Do you think that had a lot to do with the conviction?


Well, there was a reason for that. I think there were strong reasons for the death penalty in that case which had nothing to do with what I've just said about the heat of passion and so on. Atchley had two brothers. They had been hellraisers, heavy drinkers, in and out of minor problems, including barroom brawls, since they were young teens. One of his brothers was in prison for murder at the time that the homicide occurred, and a second brother had just been killed by his wife after she had taken years of wife beating. She finally decided that she couldn't endure this any more, so she killed him.

They were a notorious family in the county. They were considered to be outcasts, total outcasts in that county. So I said, "That kind of local animus, I think, showed itself in an improper death penalty." He said, "Not good enough. You're going to have to do better than that." Now, I'm satisfied that he knew me better

than I knew myself and was baiting me into coming back with a stronger case so he could do what I was recommending.

I went back to my office seething at this bizarre confrontation between the man who was in favor of abolition of the death penalty and someone who was not in favor of abolition. We had reversed roles. So I sat down, pulled the file, and reread the file carefully. After about a day of going over every piece of paper in the prison file, which was about four inches thick, I found something that I had overlooked previously. A social worker, in taking a history from Atchley about his life similar to this conversation . . . [Laughter]




He asked him, "Have you ever been injured?" And Atchley said, "Well, about four years ago. Some four and a half years before the homicide, I was outside a bar and a fellow came up and gave me a lick on the head"—Atchley's words—"with a baseball bat. I was unconscious for two days."

I stopped reading and said, "Wait a minute." My work in the D.A.'s office dealing with assault

cases, and also being a young father at the time, I was aware of the problem of concussions, the possibility of brain damage from concussion.

I ran across the hall to the governor and said, "I have a report that indicates that Atchley suffered such a severe blow to his head that he was unconscious for two days. I don't know what that means, but I'd like to have your permission to have him moved to the Langley Porter Clinic in San Francisco and have a full examination, including an electroencephalograph." The governor said, "Write it up and I'll sign it."

We issued an order to the Department of Corrections to take him over to Langley Porter, and they examined him. Sure enough, we got a report, and now I'm working against the clock. He was supposed to die in twelve days. Around the seventeenth, or about five days before the execution date, I got a report from Langley Porter. Although it was stated in arcane medical language, the gist of it was that he had had a massive blow and massive damage to the part of his brain that controlled his emotions. Any

emotional provocation, however slight, might cause a response which was totally inappropriate. Which, translated, meant that faced with any belief, for example, of jealousy, he could react violently rather than rationally.

I contacted the psychiatrist and said, "Could you put this in layman's language for me?" He sent me a report saying basically what I've just said. I said, "Would you come to the clemency hearing?" He said, "Yes." So we had a clemency hearing for Atchley. The D.A. came, and the defense lawyer and I presented the psychiatric evidence. Both the D.A. and the defense lawyer were stunned.


Who was the D.A. at the time?


I can't tell you who the D.A. was. But the D.A. later said to me and to the press that had he known about Atchley's medical condition, he would not have asked for the death penalty. The defense lawyer did not inquire into his mental condition before trial, which is kind of frightening.

Since then, I've taught criminal procedure over the years, and one of the first things I

tell defense lawyers is, "Find out about your client. Find out if they've had any injury or any disease which might have affected their judgment and their ability to exercise judgment."

So, anyway, the defense lawyer had no idea that he had been injured. He never ordered a psychiatric evaluation nor an electroencephalograph. The upshot of it is that the governor commuted. The case got national attention because of the use of an electroencephalograph to demonstrate that an individual could not control his behavior and that that was a factor that could have been but was not considered in litigation, but that the governor did consider. The D.A. indicated that he felt it was a solution to the case.