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Witness to an Execution

By Megan Kinneyn | Nov. 2, 2006
News

Law Office Management

Nov. 2, 2006

Witness to an Execution

What is it like to watch a man you sent to prison be put to death? Twenty-five years after young prosecutor James Ardaiz secured the conviction of Clarence Ray Allen for ordering the murder of a young woman, Ardaiz had become a state appellate judge. When Allen's appeals for three other murders he arranged from prison ended, he was executed, and Justice Ardaiz was there to watch. By James A. Ardaiz

By James A. Ardaiz
     
      On Monday, January 16, 2006, I went to a San Francisco hotel, where I spent the afternoon waiting and looking at the clock. Across the bay in San Quentin State Prison I imagined that another man was also looking at the clock. Both of us had the same reason to watch the hands of the clock move forward. At 12:01 a.m. the man across the bay would be executed. And I was going to witness his execution.
      I acknowledge I was filled with ambivalence about attending. It had been a long time since our paths crossed—over 25 years from our last meeting and almost 30 years since our first meeting. In 1977 I prosecuted Clarence Ray Allen for the premeditated murder of Mary Sue Kitts. Her body had been dumped into a canal outside of Fresno. She was never found. It all started in 1974 with a simple burglary of a safe in a store called Fran's Market in Fresno. The market owners' son had been invited to a swimming party at the home of Clarence Ray Allen, a successful businessman, horseman, family man, and owner of a security guard agency. But behind that veneer of social acceptability, Clarence Ray Allen was a criminal. He was the leader of a gang of petty thieves that he manipulated through subtle intimidation and cartoonish criminal charisma. Everybody who dealt with Clarence Allen in his criminal activities or who was a victim of those activities was terrified of him. At the party, the alarm key for the market was stolen from the clothing of Bryon Schletewitz, the son of the market owners. The theft of that alarm key set in motion a pattern of carnage and destruction of lives that would lead both Allen and me to this night.
      One of the young women who had been at the party, Mary Sue Kitts, was the girlfriend of one of Allen's sons. She was aware of what was going on, and afterward she began to talk. Allen and his cohorts sat around a table and decided that she had to die to keep her quiet. He threatened one of the men in his gang, Eugene "Lee" Furrow, and told him that either he would have to kill Kitts or he would be killed as well as her. Mary Sue Kitts, age 17, was strangled to death and ended up, for several years, being one more missing person, until the Fresno Sheriff's Department and the district attorney's office were informed that she had been murdered and that Lee Furrow was the killer, acting on Clarence Allen's orders. Furrow was arrested. He confessed almost immediately and implicated Clarence Allen. Allen was convicted of first-degree premeditated murder and conspiracy to murder. There was no death penalty available under the law at the time. He was sent to prison for life. As far as I was concerned, the chapter was closed.
      One of the things prosecutors always tell witnesses and families of victims and witnesses in cases like this one is that they do not need to be afraid. The killer is in jail, and he can't do any more harm to them. Retaliation like that happens only with organized crime or on television or in the movies. It isn't part of real life. That's what I told the family of Bryon Schletewitz. That is what I told Bryon. That is what I believed. I was wrong.
      On September 5, 1980, I was Fresno County's chief deputy district attorney in charge of homicide. My investigator, Bill Martin, and I received a call from the sheriff's office. There was a triple homicide at Fran's Market. Bill and I rode out to the country store. On the way, we passed the former home of Clarence Allen. Neither of us gave it any more than a passing thought.
      When we arrived at Fran's Market, the police tape was already up and the news crews were arriving. We walked in and moved around the bodies of three young people. Each had been executed by a blast from a shotgun. It looked like they had been killed while they stood there. Near the door was the body of Josephine Rocha, age 17. Near her was the body of Douglas White, age 18. On the floor in the corner was the body of Bryon Schletewitz, age 27. He had been horribly disfigured by the shotgun blast, but I could still identify him. His parents, Ray and Fran, were outside waiting. I went out to tell them that Bryon was dead. I will never forget the look on their faces. It was like watching the life drain out of a person—they aged right before my eyes.
      Within 24 hours, we knew that Clarence Allen was involved. Within 48 hours, we knew this had been a killing to eliminate witnesses in the event of a retrial of the Mary Sue Kitts case, which was what Allen was hoping for. And the killing was also for revenge. From inside prison walls, Allen had sent a killer. Bryon Schletewitz and others who testified in the first trial, my trial, were to be murdered. The other two young people who died that night were just in the wrong place at the wrong time. I can't begin to describe how I felt when I realized that these people had died because Bryon had done his duty as a citizen, a duty I had asked him to perform, with the assurances I had given him and his parents, Ray and Fran. When the killer was arrested, he had the names of the witnesses on a piece of note paper in his pocket.
      I had not testified in the Mary Sue Kitts trial; I was never on the witness list. Of all the major participants in the first trial, my name was not on the list carried by the killer because I had not been a witness. Shortly after the killings at Fran's Market, I was elected to an open seat on the municipal court. I would not be the prosecutor of the Fran's Market murders. Instead, I was a witness in the trial for those murders. In that second trial, Allen was found guilty of three counts of premeditated murder with special circumstances, and he was sentenced to death.
      More than 25 years later, I was still a judge. The process of carrying out the judgment of death had dragged on. The appeals were long since over, but the writ process took each issue and chewed it into nothing. Still, even that process eventually grinds to a halt. Now it was January 16, 2006—Clarence Ray Allen's 76th birthday. It would be his last birthday. It was time. I waited in my hotel room, and I kept wondering what was going through Allen's mind. I knew what was going through mine. Even after all this time and all this history, I still was ambivalent about going to the execution. But I had my reason for being there. It wasn't because I wanted to see Allen's death. It was because he had outlived both Ray and Fran Schletewitz. They had not lived long enough to see this day. Somebody had to be there for them and for Mary Sue Kitts. I was doing this for them. It was a sense of responsibility to people I had made assurances to.
     
      The attorney general's office has a Department of Victims' Services. It had reserved a room at the hotel where all the witnesses to the execution were asked to meet. There was no public announcement of who the witnesses were, so this was the first time we all got to see one another. Three of my former investigators were there; I hadn't known they were coming. I am not even sure they knew that the others would be there. Everybody had their own private reasons for attending.
      The deputy attorney general in charge of Victims' Services, Jonathan Raven, was incredibly solicitous of the people there. The execution process was explained in detail, and the assembled witnesses were asked if they had any questions. I was told that it meant a lot to the family members who were there that I had come. It made me feel better about being there. I was asked to make a statement to the people in the room. I hadn't expected to make a statement, but everyone was looking at me. I make my living with words and decisions, and I could tell that it was important that I represent the system and that I communicate what the others were thinking. For some reason, everybody needed to know they all had some of the same feelings.
      I told them that when I had handled the Mary Sue Kitts case I was a young man with dark brown hair and only one chin. Now I was a middle-aged man with graying hair. I told them that I was sorry this had taken so long. I was part of the system, and I understood the reasons for delay and the concerns about executing innocent people, but the system hadn't made it easier for them, and I was sorry about that. I told them I was sorry that the appeals and writ process had taken so many years that now the victims' parents were either no longer alive to see the punishment of their child's killer or so infirm that they couldn't make the trip. I told them that although I understood their impatience and anger with the system, they also needed to know that there were many men and women within the system who had been representing their interests and had spent most of their careers helping bring this matter to a close. I asked them to remember the work of those people when they thought about the system. I told them I was there the night of the murders, and I remembered their loved ones lying on that cement floor. I told them that I would never forget it as long as I lived. I told them that I had told Ray and Fran Schletewitz that their boy was dead. I told them that prosecutors tell witnesses they are safe because that is what they believe, and that I had told this to the Schletewitz family. I told them I was wrong. I told them that I was there because Ray and Fran couldn't be. I told them that I hoped this night would bring them some closure. I told them that they should not be surprised if it didn't bring them true closure, because it had been such a long time. The punishment was so far removed from the crime that it seemed almost detached for me. I told them that I hoped it would help, but I wasn't sure it would. I told them again that I was sorry: It had seemed such a logical and reasonable thing to tell people, that they would be safe. Things like this weren't supposed to happen. There was nothing I could say that would undo the harm caused by this man. I told them that after tonight they needed to move forward.
      When I finished speaking, many family members were nodding. Some were crying. I also was having a hard time controlling my emotions. For the first time in my life, I realized that Clarence Allen had made me a victim too.
     
      I rode over to San Quentin with my former investigators. We followed a caravan of cars onto the prison grounds. I had been there before. I had seen the execution chamber before. I had even been inside it 27 years earlier as a prosecutor, when we brought a condemned prisoner into the prison. He, too, was on death row even now, still in the system. San Quentin didn't look any different, except that it was currently in lockdown. The only activity was the movement of guards.
      We all went into a room near the front door of the prison and waited. The prison spokesman, Vernell Crittendon, came in and gave a very complete explanation of what would occur. I found him and the staff to be remarkably professional and concerned for everyone in the room.
      San Quentin had prepared a complete meal for all the witnesses. It was an excellent meal, but not many of us ate anything. We just stood around and talked quietly, looking at the clock as it edged toward midnight. At 11:15 the prison officials took us into a room and seated us in the same order that we would be sitting inside the witness viewing area. There were murals on the wall that had been painted by an inmate. It took me a while before I saw the artist's name and realized that he was another man whose murder case I had handled when I was a prosecutor. He was still on death row too.
      The warden came in and spoke to all of us. He said that when we were asked to go into the witness room, everything would be ready to begin. You could feel the tension in the room and the emotions of family members rising. People were starting to cry, as their emotions overflowed. In my own mind I kept thinking, "I don't want to be here, but this is something I have to do." It was a promise I had made, and I was going to keep it.
      A man dressed in a suit came in and said it was time. We all stood up and walked in single file out the door and along the walls of San Quentin until we reached the door to the witness room that looked into the semicircular steel and glass walls of the execution chamber. The door was as I remembered it—a simple door in the outside wall of the prison. We walked in and there it was in front of us, with a drawn curtain around it. The chamber was that same sickly green color I remembered. We filed behind the chairs placed in a semicircle around the chamber and took our assigned seats. The lighting in the witness room was low. The deputy attorney general who had handled this case for 25 years, Ward Campbell, was sitting next to me along with family representatives. When our group and the media were in the room, the members of Allen's family and his witnesses were brought in. I remember thinking about the sensitivity of the guards and the officials for everyone. They treated the witnesses, Allen's family, and everyone there with kindness.
      When the curtains were drawn on the execution chamber, the focal point was a greenish gurney, brightly lit by a single bulb. All eyes were fixed on that gurney and on the rear steel door to the chamber. A piece of paper was handed through a steel door next to the chamber that went to the back holding-cell area. A guard read the order of execution and the name of the judge pronouncing judgment. The door to the chamber opened, and two guards stepped inside and turned back toward the figure beyond the door. After 25 years, there was Clarence Ray Allen standing, framed by the door. You couldn't see behind him, so there was no way to tell if he had people supporting him. The two guards reached through the door, and each took one of his arms, steadying him as he stepped over the six-inch threshold into the chamber. Two things struck me at that moment: how gentle the guards were with Allen, and the fact that he was an old man. He was nothing like I remembered. He was just a paunchy old man. I knew I would feel what came next, and I did—a rush of pity. I couldn't help it. He didn't deserve it, but I couldn't help it. To be honest, I just wanted to leave. I had to remind myself of what he had done.
      Allen moved next to the gurney and sat down, and then he lay down as the guards supported his head. He was carrying a feather attached to a kind of handle. It was obviously some kind of Indian religious talisman. He was part American Indian and had claimed Indian heritage as his ethnic identity. He held the feather until they strapped his arms down. The guards took the feather and laid it on his chest. They gave his religious object the same consideration they would have given a crucifix or a Star of David or prayer beads. In some ways the treatment of Allen was singularly moving because of the evident compassion and sensitivity of the guards performing their duty. It occurred to me that some of them had probably spent 25 years with this man. He wasn't a stranger to them.
      The whole process of preparing Allen took what seemed like a long time. But it really wasn't that long in retrospect. The needles were inserted. The heart monitors were attached to the lines running out of the chamber. The tubes carrying the chemicals to put him to sleep, to stop his respiration, and to stop his heart were attached to the needles. There wasn't a sound in the witness room.
      Once he had been prepared, Allen spoke to the guards. You couldn't hear what he was saying, and you couldn't see if the guards responded. The guards moved the gurney around so that his feet faced toward the area where his family was. Allen lifted his head and looked around. He looked at me. I was less than five feet away. He looked toward the middle of the group of witnesses, and then he looked at his family. I saw one of his family members wave to him. You couldn't hear what Allen said, but you could see his lips move. He told his family, "I love you." I remember thinking that Allen had loved ones too. He had made them victims also, because this was the legacy he would leave them.
      The execution was ordered to proceed. I saw one of the tubes move as liquid came through it. Allen never moved; he just yawned and went to sleep. Then he stopped breathing. There wasn't a sound in the room except a tiny, squeaking noise that sounded like a pump working methodically. I thought it was probably the pump pushing in the chemicals, but I don't know. I just remember that squeaking sound and watching the tubes move as chemicals continued to be pumped in. Then it was over.
      We all sat there in silence looking at this old man lying on the gurney, brightly lit by that single bulb. He had been given a peaceful and painless death. You had to remind yourself that he had been responsible for the premeditated, brutal, and painful deaths of four young people.
      The guard read the announcement that the order of execution had been complied with, and Clarence Ray Allen was pronounced dead. The guards closed the curtains around the execution chamber, and his family filed out. After a period of time, we all filed out. There was no talking. Everyone was lost in his or her own thoughts.
     
      As for me, it turned out I was right: The punishment was so far removed from that night in 1980 that I was detached from my outrage. I didn't want to feel sorry for Allen-I, better than almost anybody there, knew what he had done. I had been involved since the beginning. But I did feel something for him. I guess it was pity. I don't know. People seem to assume that because this was the punishment Allen had earned under the law, any measure of emotion is inconsistent with what the law demands. But any feelings I had weren't about the punishment. My feelings weren't philosophical or logical, or based on some deeply held conviction about the death penalty. I suppose what I felt was a sense of the reality that comes with watching another human being's life end. I realized I am not so detached from my fellow human beings that I could watch this without emotion or some measure of compassion. I couldn't help it, so I kept reminding myself of what he did.
      As a trial judge I had sentenced many people to what the law required and what I thought they deserved, but that didn't change the fact that I took no pleasure from it. I had imposed the death sentence on other men, and as a prosecutor I had asked for this sentence for other men. I could imagine that someday my name as sentencing judge would be read in that room as another warrant of execution was intoned. It was a sobering thought.
      Allen's appeal and writ process had taken more years than the life spans of all but one of his victims. He had outlived the parents of some of the victims. What of the surviving parents who were too infirm to witness his punishment? What was the toll of their suffering through their long years of waiting? Much of the publicity in the last few weeks had been about public and legal reaction concerning executing such an aged inmate. I thought about the fact that, in the end, Allen's health was better than that of the parents of the victims. Where was the outrage at that?
      As I looked at the people walking out of the witness room behind me, I saw that Allen had left a long trail of victims behind, and many of them were here walking along silently. For most of them I don't think it was over. I don't think it will ever be over. But there is one thing I know for sure: The length of time that all of this took added a layer of pain to what these people endured. And that was wrong.
      Nobody wants to execute an innocent person, but sometimes the system loses sight of the pain it inflicts by its lumbering movement. The system sometimes seems to forget that it isn't all about the defendant. No one wants to make a rush to judgment, but neither should the system simply consume time without regard to the consequences. The system is also about the victims—the people who died and the families they left behind. As the people who operate the system, we are the means of justice for those whose lives are shattered. We are the rational and dispassionate forum that keeps people from seeking their own justice. For the surviving victims, we need to remember that justice delayed adds to their grief and their sense of injustice. For the victims, justice inordinately delayed is very close to justice denied.
      We owed the victims of Clarence Allen more than we gave. We owed them a sense of closure, and I don't know if they got that. We have to remember that the passage of time can eat at people's souls. Their anger can consume them. Justice should not be imposed in anger, but neither should it be delayed so long that we have trouble remembering why we seek it. It had been so long since the crime for which this man was condemned that it was difficult to place the execution in the context of his crime. So many years had passed that the murder victims' faces had become merely memories and photographs from the past, and Allen's aged face had become the present.
      I don't know if I left the prison with any answers. But I do know that somewhere in this state—this day or this week or this month—a young prosecutor will be looking at anguished parents or wives or husbands, saying, "Don't worry. You are going to be safe, and the system will take care of you. We will get justice for you." I hope that is true. I have devoted my entire professional life to that assurance. I would like to believe that in the end we did right by the parents of those kids who lost everything. I know I will think about that for a long time.
     
      James A. Ardaiz (james.ardaiz@jud.ca.gov) is the administrative presiding justice of the Fifth District Court of Appeal in Fresno.
     
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Megan Kinneyn

Daily Journal Staff Writer

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