Confronting death: more inmates give up appeals in capital cases.

David Mason was sentenced to death in 1984 for robbing and strangling four elderly people and for murdering a fellow jail inmate. For the next nine years, he fought in one appeal after another to stay out of the gas chamber in California.

But after going through a lengthy process of introspection and developing a new relationship with his family, he decided to give up his appeals last year. "He accepted responsibility for his crimes," said Sacramento, California, attorney Michael Brady, who was asked by Mason last January to take over his case.

Brady had previously tried six death-penalty cases before a jury, but this was the first time a defendant asked for help in seeking an execution. Brady decided to take the case - a difficult and controversial decision, but one he stands by.

"I believe he had the right not to pursue federal collateral relief," said Brady. "That's his choice." On August 24, 1993, Mason, 36, was executed at San Quentin.

In capital cases around the country, defendants are increasingly giving up their appeals, often against the wishes of others like their own attorneys, friends, or family members.

In 1976, the U.S. Supreme Court held that Gary Gilmore's mother did not have standing to challenge her son's desire to be executed. (Gilmore v. Utah, 492 U.S. 1012).) Gilmore, who had been convicted of shooting a Brigham Young University student to death, was killed by a firing squad in 1977.

In January 1990, the Supreme Court held that a death-row inmate did not have standing to appeal another inmate's death sentence without evidence that the capital defendant was unable to proceed on his own behalf (Whitmore v. Arkansas, 495 U.S. 149).) That same year, the Court held that an inmate's parents could not file a habeas corpus petition on their son's behalf because they did not establish that he was incompetent to waive further proceedings. (Demosthenes v. Baal, 495 U.S. 731).)

Thirty-seven states have passed laws requiring that all appeals be heard before an execution. (See Colman McCarthy, State-Sanctioned Suicide, Wash. Post, Aug. 7,1993, at A19.) However, "so long as you are not incompetent nor coerced, you can waive all [collateral] appeals," according to Professor Robert Weisberg of Stanford Law School. (Philip Carrizosa, The Right to Die, L.A. Daily J., Aug. 12, 1993, at 1.)

Out of 223 executions since 1976, twenty-nine have been consensual - seven in the past year alone. Among them:

* William Vandiver, convicted of stabbing and dismembering his father-in-law. Vandiver said he wanted to die to stop his family's suffering and because of the deplorable condition of Indiana's death row.

* Jeffrey Allen Barney, who raped and strangled a 54-year-old woman. He fired his attorneys and refused to authorize any appeals, saying he did not want to spend the rest of his life in prison and deserved to die.

* Charles Walker, who killed a couple for beer money. "Why should I appeal?" he said. "I'm going to lay in a cell for 10, 15 years and then die? There ain't no light at the end of that tunnel. There ain't no hope, no future."

* James Smith convicted of robbery and murder. He filed legal briefs asking that no third party intervene to stop his execution. "l, myself, did not kill anyone," he said before being executed in Texas. "I will not humiliate myself. I will let no man break me."

Groups opposed to the death penalty say they are also opposed to consensual executions - which they consider an oxymoron.

"We must not delude ourselves that some executions are |voluntary' and what the defendant |really wants,' or that going forward with such an execution |respects' the wishes of the person to be executed," says a policy resolution adopted by Death Penalty Focus of California last year. "If we want to respect a prisoner, we will treat that person with dignity and provide him or her with decent conditions of confinement during fife imprisonment, not kill that person."

The Oakland-based group launched an unsuccessful letter-writing campaign to try to get Mason to change his mind. Several of Mason's friends and relatives had also sought to intervene as "next friends" to block the execution but later withdrew from the case.

"There is no such thing as a consensual execution," said Nancy Pemberton, the group's president. "We feel that the decision whether or not the death sentence is lawful needs to be tested in each and every case. If someone gives up or cuts short the legal process, the sentence or conviction has not been fully tested."

A similar policy was adopted last year by the Washington, D.C.-based National Coalition to Abolish the Death Penalty. Under that policy, "it is the state that proposes to execute the offender, his/her wishes notwithstanding. The offender's consent at best eases the legal path, but the offender's wishes do not in any way determine what the state will do."

Gaining Control

Many capital defendants decide to give up their appeals in a desperate attempt to gain some control over their lives, said Pamela Rutter, the coalition's program director.

"When the appeals are being set, they don't have any control," said Rutter, adding that death-row inmates lose hope for fighting their sentences as the number of executions continues to rise. "But if they drop their appeals, they've got control of when they die.... Then we have to listen to what they want instead of telling them what they get."

Some inmates purposely kill in a state with capital punishment as part of a suicidal intent, said Spencer Eth, a psychiatrist who teaches at the University of California at Los Angeles and the University of Southern California medical schools.

"When you look at people who are either asking for the death penalty or are not actively fighting it, many of them are depressed and, in fact, suicidal," said Eth. He added that there is another group of death-row inmates who are psychotic. They are either psychotic before arriving on death row or become psychotic because of the extreme distress of languishing on death row for many years.

Joan Cartwright, a San Francisco clinical psychologist who has interviewed death-row inmates for attorneys, noted that many defendants come from abusive families and accept death as a way of punishing themselves. In many cases there is underlying brain damage, which hampers the inmate's ability to think about things rationally, she said.

This argument is often used by people who file frivolous habeas petitions, said attorney Brady. He noted that the death-penalty appeals process is too cumbersome and too expensive. "There is no finality in the appellate process for anybody," he said, adding that frivolous habeas petitions are common and unnecessarily clog the courts. Pemberton disagreed, saying that the legal system has a legitimate concern in ensuring that innocent people are not executed.

A bill recently introduced in the California legislature is aimed at limiting frivolous habeas petitions. Introduced by Bob Epple (D-Cerritos), Assembly Bill 2403 provides that a third-party habeas petition must state why the person for whom the petition is being filed does not sign and verify the petition.

After having witnessed Mason's execution, Brady is convinced that death in the gas chamber violates the Eighth Amendment protection from cruel and unusual punishment. "You watch this guy ... die an excruciating death," said Brady. "It doesn't make sense to use 1937 technology in 1993."

Brady said watching Mason die was one of the most difficult things he's ever done. "It was very traumatic for me," he said. "I guess I overestimated my ability to deal with the death of another human being, no matter how serious the crimes that person committed.

"I don't know if I'd ever witness an execution again," he said. "But I'm still as committed to the philosophical concept that once a person exhausts his or her automatic appellate rights, he has the right to waive further collateral relief."