California governor reviews clemency report, but contents remain secret

The Associated Press

04.30.99

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SACRAMENTO, Calif. — As he weighs whether the state should execute death-row inmate Manny Babbitt, Gov. Gray Davis is studying a report the public will likely never see.

Davis received the Board of Prison Terms' recommendation on April 26 and is reviewing it as he decides whether to grant Babbitt clemency. Following a longstanding custom, neither Davis nor the board intends to make the report public.

However, a copy of the board's letter obtained by the Associated Press yesterday says the board believes Babbitt should be executed. "By a unanimous vote, the board recommends that Mr. Babbitt be denied commutation," the letter states.

Babbitt was convicted of murdering 78-year-old Leah Schendel in 1980.

Defense lawyers say Babbitt, a Vietnam War veteran and Purple Heart recipient, deserves clemency because he has post-traumatic stress disorder and was mentally ill before the war. He is scheduled to die May 4.

Bill Babbitt, Manny Babbitt's brother, says he favors release of the report, arguing that the facts it contains could help his brother's case if they are brought to light.

"The truth, the whole truth and nothing but the truth should prevail," he said in a telephone interview. "The truth is so compelling in so many different ways."

Laura Thompson, Schendel's granddaughter, says she believes the report should stay private so the governor can "reflect upon it without public outcry."

"When the governor makes his decision I expect that the recommendation will be made public at that time," she added.

Davis, like his predecessor Gov. Pete Wilson, maintains the board's report is a confidential part of his deliberative process and has refused to release it.

The board's April 26 clemency hearing for Babbitt was open to the news media and public, but the panel does not consider the resulting report a part of the public record.

"That's confidential," board spokeswoman Denise Schmidt said. "It's part of the decision-making process."

Yet nowhere in state law is the document explicitly shielded from public scrutiny.

The California Public Records Act provides citizens broad access to state documents. While there are numerous exemptions, clemency papers are not listed among them.

There is, however, a "deliberative process privilege" in the act, an exception upheld by the state Supreme Court.

Gov. George Deukmejian argued successfully to the high court nearly a decade ago that releasing records on the inner workings of his office would hinder his decision-making.

To withhold a record, the law requires that "the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record."

While there has never been a court test of whether the board's clemency report falls under the deliberative-process privilege, clues to the Legislature's wishes on the subject appear in related laws, says Terry Francke, general counsel for the California First Amendment Coalition.

One provision in state law addresses the transfer of a former governor's papers to the state archives. It allows the public access to documents in clemency cases that closed at least 25 years earlier.

"This seems to set a 25-year secrecy horizon on what it calls 'writings relating to applications for clemency,'" Francke said.

Another section of state law allows Californians to obtain records on themselves, but clemency documents are among the exceptions.

Whatever Davis' decision on Babbitt, he is certain to explain his reasoning. When Davis denied clemency for convicted murderer Jaturun Siripongs, he issued a 10-page statement explaining why. He will likely not release the board's report after the execution, says Davis spokesman Michael Bustamante.

Francke says the clemency process deserves more scrutiny.

"I think governors are evaluated on many things, and one of them is their attitude toward capital punishment," Francke said.

Documents that support or oppose clemency may illuminate the choices, factors and pressures brought to bear on a governor's decision, he says.

"It's one more index by which people can judge the judgment of those who have been given the highest executive power," Francke said.