Condemned men dying of virus, not executions
San Quentin cases more lethal than death penalty was
In June, on Death Row at San Quentin State Prison, 58yearold Jarvis Masters heard a rumor that the coronavirus was ripping through the aging structure. Condemned prisoners are confined to their cells for 23 hours a day, so Masters tracked the outbreak by watching news reports on his small personal TV.
He watched as 100 cases swelled to 300 in two days, then 1,000. Then he started to cough. Masters soon felt like he couldn’t breathe.
Over the next two weeks, as calls of “man down!” rang out every few hours, several of his neighbors disappeared and didn’t come back. Staff pulled them from their cells, leaving their TV sets on to drone.
“It’s like a crime scene,” said Masters, who has been on Death Row since 1990.
Less than two years ago, Gov. Gavin Newsom halted executions of condemned prisoners, saying the death penalty system is prone to error and is a “failure.” California has faced challenges to its lethal injection protocol and has not executed a prisoner since 2006.
Now the virus has picked up where the state left off, sweeping through Death Row and
“I thought I was handling it well, because I’ve been a tough old broad up until now. I feel like I have no control of anything.”
Donna DoolinLarsen, on worrying about her son
taking the lives of more condemned men than California has executed in a quarter of a century.
A colossal outbreak at San Quentin has infected more than 2,000 incarcerated men and 260 staffers; killing 25 prisoners and one correctional sergeant. It’s also hit Death Row especially hard, claiming the lives of 12 condemned men with an average age of 62.
The death penalty has long been one of the most polarizing issues in criminal justice, fiercely defended by some victims groups and assailed by a wide range of reformers. Twentytwo states have abolished the death penalty entirely, and three others, including California, have issued moratoriums on state killings, saying the death penalty is biased against the poor and people of color and citing the danger of irrevocable mistakes. DNA evidence has led to the exoneration of about 170 people on death rows across the country.
But now that the virus is blowing up that uneasy stalemate, an already broken system is facing an unprecedented crisis, and everyone with a stake in the process — family members of victims, prisoners fighting for their freedom, attorneys who have invested years in their cases — is sorting through the wreckage.
“My clients are entitled to a review of their convictions and sentences,” said Harry Simon, a federal public defender in Sacramento who represented three of the 12 men on Death Row who were felled by the virus. “To the extent that the negligence of San Quentin and CDCR (California Department of Corrections and Rehabilitation) stopped them from having that, that’s a problem.”
East Block’s invisible killer: In California, the majority of the 700plus people sentenced to death are confined to a standalone building at San Quentin called East Block.
Even though the prison in Marin County is just a 35minute ferry ride away from San Francisco and the world’s technology epicenter, East Block looks like something out of a vintage blackandwhite movie. Built in 1927, its five tiers are lined with singleman cells secured by oldfashioned metal bars and a metal mesh screen, allowing airborne droplets to enter and escape. Neighbors can hear but not see one another.
Inside each cell is a stainless steel sink and toilet, upper and lower lights, a twin bed and a bookshelf on the back wall to store legal work, food and other personal items.
Because of accessibility and mobility concerns, the first tier is where older, medically vulnerable patients serve their time. Many are on medications, oxygen or dialysis, or a combination of the three.
“These guys are not getting any younger,” said Keith Doolin, a condemned prisoner who lives on East Block’s fourth tier. “The wheelchair count is so bad that they’ve got them all lined up, with the guys’ names and CDC numbers on the back of them, basically like an automobile parking lot.”
Until late May, San Quentin had successfully dodged the bullet of the pandemic, with zero recorded infections among its 3,600 incarcerated men. But on May 30, in a series of mistakes that would prove fatal, state and federal officials ushered the virus into the prison, bringing 121 men to San Quentin from a virusinfested prison in Chino (San Bernardino County). In some cases the men had not been tested for weeks. The transfers were then mixed with healthy men in San Quentin’s South Block. Cases spiked as the virus raced from one housing unit to another.
It’s unclear how the virus first entered East Block, but people who live and work in the prison have theories. Doolin speculated that food trays spread the virus — during flu outbreaks, the prison had switched out plastic trays for paper ones as a precaution.
“So, this time around we were literally saying, ‘Wait a minute, where’s the paper trays?’ ” Doolin said. “Why aren’t you guys following protocol?”
According to internal prison emails obtained by The Chronicle, East Block was not placed under quarantine until June 15 — two weeks after the first incarcerated man at San Quentin tested positive. The quarantine failed.
Nine days later, on June 24, case counts were exploding in East Block, with the prison recording 136 infections there, records show.
That day, 71yearold Richard Eugene Stitely collapsed in his cell and died, becoming the first COVID19 fatality on Death Row. Convicted three decades ago for the rape and murder of 47yearold Carol Unger in Los Angeles County, Stitely had refused to be tested for the coronavirus, but a postmortem exam confirmed he was positive.
One of Stitely’s attorneys, Joel Levine, said his client was illiterate and had been raised by an abusive father, and two psychiatrists had measured his IQ at below 70. Defendants with severe intellectual disability cannot be executed, meaning he had a chance to leave Death Row. The question of his mental competency was set to be determined in state court in May, Levine said. Then the pandemic delayed the hearing, and Stitely died before Levine could argue the case.
In the days that followed, the virus notched more victims in East Block.
Masters chatted with a neighbor, 75yearold Joseph Cordova, who arrived to Death Row in 2007 after being sentenced for the rape and murder of an 8yearold San Pablo girl. Cordova and Masters had recently gotten sick with the virus around the same time. “I asked him how he was doing,” Masters recalled. “He said he just felt real cold.” Cordova died on July 1.
By that point, at least 166 men in East Block had been infected, and the virus was still spreading out of control.
A lack of due process: Over the next week, as COVID19 claimed four more lives on Death Row, groups opposed to the death penalty — and attorneys representing condemned men — followed the news with growing horror, worried that the outbreak was stealing important legal rights from men on the Row.
“Not everyone who’s been sentenced to death is guilty,” said Nancy Haydt, an attorney who directs Death Penalty Focus, a California nonprofit trying to abolish the death penalty. “Not everyone who has been sentenced to death has gone through all their appeals. And not everyone is mentally competent to be executed.”
California has executed 13 people since reinstating the death penalty in 1978, with some waiting on Death Row for more than 20 years. Even before Newsom’s moratorium, capital punishment had been all but nonexistent in California for more than a decade.
The vast majority of condemned people at San Quentin are still fighting their sentences, pursuing state or federal appeals. Several have long maintained their innocence, including Masters, whose conviction for taking part in the fatal stabbing of a corrections officer in 1985 was partly
based on false and recanted testimony, the California Supreme Court ruled last year. Masters plans to file a federal appeal.
Doolin, a former Fresno truck driver, was sentenced to death in 1996 after a jury found him guilty of killing two sex workers and shooting four others. Doolin has consistently maintained his innocence, and some postconviction DNA testing and other physical evidence have bolstered his claims.
He’s recently scored a legal victory, persuading a Superior Court judge to order the Fresno County District Attorney’s Office to turn over documents in his underlying case.
As Doolin becomes more optimistic about winning his freedom, the pandemic’s timing feels particularly cruel. It’s as if the state is trying to “basically impose another death sentence,’” he said.
Donna DoolinLarsen said she feels helpless to protect her son.
“I thought I was handling it well, because I’ve been a tough old broad up until now,” she said. “I feel like I have no control of anything.”
Simon, the public defender, represented Manuel Machado Alvarez, John Beames and Johnny Avila Jr. before each condemned man was stricken and killed by the coronavirus.
He said all three were still pursuing appeals. Now those efforts have died with them.
The men on Death Row, he said, were “sitting ducks for this virus.”
Searching for closure: In California, a death sentence automatically touches off a lengthy series of reviews and appeals holding people on Death Row for years or decades before their execution date.
The system is protracted by design to ensure the government makes no mistakes when handing down its ultimate sentence. The process is imperfect, arduous and exhausting, but the end result — at least in theory — is justice.
For those affected by Death Row’s recent fatalities, the virus was an unceremonious finale.
Milena Phillips wept when she learned Scott Thomas Erskine, the man who murdered her 9yearold son, Jonathan Sellers, had died July 3. Though she wasn’t quite sure why.
“I know he’s on Death Row, but it came out of the blue,” Phillips said. “Maybe it was just the confusion; my emotions were so mixed up. Tears were all I could do.”
The bodies of Jonathan and his 13yearold friend, Charlie Keever, were found two days after the pair disappeared during a bike ride in San Diego in 1993. The two had been beaten, raped and tortured.
DNA would link Erskine to the crimes eight years later.
After the initial shock of Erskine’s death subsided, Phillips confronted emotions that were uncomfortable for a woman of faith. She’d never before felt happy about the death of another person and sought guidance from her pastor.
“He said that it was OK that I was glad that it ended, that that chapter is over for me,” Phillips said.
Now, she added, her son’s killer “is no longer a part of me at all. It’s just my son that resides within me.”
Charlie’s mother and Phillips’ good friend, Maria Keever, also cried when she was told Erskine was dead.
“I was glad that he was gone, but all these years I had been wanting to talk to him,” Keever said.
The horrific details of her son’s death were laid out in court, but officials could only speculate on how Erskine made off with the boys. Keever had twice visited San Quentin over the years, hoping she could look Erskine in the eye while he filled in the missing pieces.
Both times, he refused. “I was hoping that he would change his mind and someday tell me what happened,” Keever said. “How he got him.”
Teresa Carey, sister of Dewayne Michael Carey, the fifth resident of Death Row to die of COVID19, said she felt robbed of closure.
A respiratory therapist at a Texas hospital, Teresa was the one in her family who kept in closest contact with her brother, talking to him on the phone every few months. The last time they spoke was in April, before there were any known infected men in custody at San Quentin. Then, on July 2, she got a call from a doctor at a Bay Area hospital, saying that her brother was on a ventilator and it didn’t look good.
In the hospital, the doctor put his phone to Dewayne Carey’s ear, allowing him to hear his sister’s voice. The ventilator tube down his throat had left him unable to speak. “I told him I loved him,” Teresa said. “I told him to fight.”
The siblings had an understanding that went back years: If Dewayne Carey were executed, Teresa would be a witness. He had asked her to be in the room. But two days after their last phone call, on the Fourth of July, he died alone.
“If you do a hideous crime: yes, an eye for an eye,” Teresa said. “But he was still my brother, and I needed a chance to say goodbye. And they took that from me.”