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.
