SAN FRANCISCO — When Chief Justice Ronald M. George described California's death penalty as "dysfunctional," he might have had in mind the curious case of Michael Ray Burgener.
Burgener, sentenced to death for murder in 1981, has yet to complete his automatic appeal before the San Francisco-based California Supreme Court. His case has bounced from trial courts to appeals courts over 28 years, and he still does not know whether he will be sentenced to die from lethal injection or spend the rest of his life in prison. Given how long his appeals are taking, there is not likely to be any practical difference.
"This is the fourth published opinion on appeal arising from defendant Michael Ray Burgener's murder of a convenience store clerk on Halloween morning 1980," Justice Marvin R. Baxter wrote in a May 7 ruling for a unanimous state high court, "and it may not be the last."
Burgener's tale illustrates why executions remain relatively rare in California and why old age is the most common cause of death on death row. He was sentenced to death in the 1980s, when capital punishment cases began to escalate and courts grew overwhelmed. The pace of justice, always slow when it comes to the state's death penalty, can grind to a near halt when new judges and new lawyers take over an old case.
The judge who presided at Burgener's penalty retrial is dead. The judge who replaced him is now dead. The attorney who defended Burgener at trial is dead. And the prosecutor who won the guilty verdict no longer works for the Riverside County district attorney's office. None of the state high court justices who heard his first appeal are on the court anymore.
The condemned man has outlasted them all.
Lawyers estimate that Burgener, 58, may have 15 years of appeals left if he is again sentenced to death. His case would then return to the state high court for review. The court also would have to review a constitutional challenge of his sentence. If that sentence is denied, Burgener could start all over again in federal court. Chief Justice George, citing the crush of death penalty appeals, told a state commission last year that the system is "dysfunctional."
Liberal judges are not to blame. Baxter, who wrote the most recent ruling involving Burgener, was appointed by former Gov. George Deukmejian and is arguably the court's most conservative member. The problem for prosecutors is that the law was not properly followed.
Burgener's first death sentence was overturned because his attorney, at Burgener's request, failed to argue or present any evidence that Burgener should not be put to death. The jury convicted Burgener of shooting to death William Arias, a 7-Eleven clerk, during a robbery.
In 1988 -- seven years after the first verdict -- another jury gave Burgener the death penalty, but the trial judge reduced it to life without possibility of parole. An appeals court overturned that decision, saying the judge had considered impermissible factors and should stick to the requirements of the Penal Code.
In 1991, another judge, the late Ronald R. Heumann, read the entire penalty retrial transcripts and denied Burgener's request for a life sentence. The state high court again overturned the death sentence, this time on the grounds that Heumann had failed to exercise independent judgment and relied only on the jury's findings.
The case returned to Heumann, who once again imposed the death penalty. It was overturned because he had granted Burgener's request to represent himself without warning him of the danger of doing so. In fact, Heumann told Burgener that he probably knew the case better than the judge and lawyers.
"You're the only one who's present here today who sat through all of these hearings, and trials and motions," the judge told Burgener.
The state high court said there was insufficient evidence to establish that Burgener had knowingly and intelligently waived his right to a lawyer.
Chief Assistant Atty. Gen. Dane Gillette, head of the criminal division, said Burgener's case has been delayed because of "an almost technical" but legally required review. "When you have a new judge, you have to have that judge take a look at the record and base their decision on the review of the record."
Santa Clara University Law Professor Gerald F. Uelmen, who served as executive director of a state commission that examined criminal justice, called Burgener "a great example" of the cost of imposing death.
Uelmen said that by the time Burgener's appeals are exhausted, the cost to the state could total $5 million more than the expense of a life term without parole. An inmate on death row costs $92,000 a year more than an inmate in regular prison, Uelmen said.
On top of that, Uelmen estimated the state's legal tab for Burgener's appeals "has come to well over $400,000.
"It just shows that in California, a sentence of death is usually a sentence of life without parole, except it costs us a lot more."