A judge on Wednesday denied a defense motion asking that
Alameda County prosecutors be barred from seeking the death penalty for a man
accused of fatally shooting Hayward police Sgt. Scott Lunger in 2015 as Lunger approached
his vehicle.
Defense attorney Linda Fullerton argued that Mark Estrada’s
right to a fair trial in the guilt phase of his case will be jeopardized by the
rigorous jury selection process in capital cases because prospective jurors who
are unable to impose the death penalty are precluded from sitting on the jury.
Fullerton wrote, “The result is that the jury panel
that survives challenges for cause is likely to be more favorable to the
prosecution, and therefore more likely to convict, than a panel that has not
been death-qualified.”
Fullerton said another reason prosecutors should be barred
from the seeking the death penalty against Estrada, 25, is that California Gov.
Gavin Newsom issued an executive order on March 12, 2019, that placed a moratorium
on executions, repealed the state’s lethal injection protocol and shut down the
execution chamber.
The defense lawyer said the last execution in California was
carried out 14 years ago and the average appeal for defendants sentenced to the
death penalty is more than 25 years.
“In essence the death penalty in California is a
fiction and a defendant sentenced to death is highly unlikely to ever be
executed, even if the moratorium is lifted by a future governor,”
Fullerton wrote.
Estrada is charged with murder with three special
circumstances for allegedly shooting Lunger, 48, near Mytrle and Lion streets
in Hayward at about 3:15 a.m. on July 22, 2015.
Lunger, a 15-year police veteran who lived in Brentwood, was
pronounced dead at Eden Medical Center in Castro Valley a short time later.
Prosecutors said Lunger was shot after he stopped a white Chevrolet
Silverado truck driven by Estrada because it was swerving and almost hit
several cars.
The special circumstance allegations against Estrada are
murder of a peace officer during the course of his duties, committing a murder
while lying in wait, and committing a murder by discharging a firearm from a
motor vehicle.
The case against Estrada has moved slowly but on Jan. 6 it
was assigned to Alameda County Superior Court Judge Thomas Reardon, who denied Fullerton’s
motion at a hearing on Wednesday.
Estrada is scheduled to return to court on Tuesday but
opening statements in his case aren’t expected for several months because jury selection
and hearings on additional pretrial motions are expected to be lengthy.
Death penalty trials begin with a guilt phase in which a
jury decides whether a defendant is guilty of murder with special circumstances.
If that happens, a second phase, called the penalty phase,
is held in which the same jury decides between recommending life in prison
without parole or the death penalty. But the sentencing ultimately is
determined by the trial judge.
Fullerton said another reason the prosecution has an
advantage in the guilt phase when death is being sought is that “the
defense’s ability to put forward the best possible defense at the guilt phase
is hampered.”
She said appellate courts have noted “the danger of the
defense claiming the defendant did not commit the crime at the guilt phase and
then arguing that the defendant was remorseful at the penalty phase as such an approach
can alienate jurors.”
But prosecutor John Brouhard, who has won death penalty
verdicts against several defendants, wrote, “There is no evidence that any
problem actually exists. It is not a foregone conclusion that jurors will
necessarily have heard of the Governor’s order, much less understand its scope
and effect.”
Brouhard said, “It is not appropriate to rule
categorically that defendant (Estrada) cannot receive a fair trial.”
Source: NBC Bay Area
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