The Other Death Penalty: part 3

The seriousness of the Death Penalty and Life Without the Possibility of Parole are the same. Individuals sentenced to either one are sentenced to die in prison. Why then is one sentence treated far more seriously than the other? Why are those who are sentenced to the Death Penalty given special legal protections and rights? Why are those sentenced to LWOP, growing old and frail, suffering alone as they die in misery given no thought?

Most people think that sentencing only happens “after” someone is convicted. While technically this is true, the sentence isn’t actually given until someone is found guilty; sentencing actually begins way before that. It begins when citizens vote for politicians who pass laws that the District Attorney then uses at his discretion. In an individual case, sentencing begins when the D.A. files charges against someone. Holding discretion over which charges to file carries the weight of the sentences that come with those various charges. Specific charges automatically limit a judge in what sentences he may impose.

In my case specifically, the D.A. chose to do what is called a “Direct File” in adult court against me. The D.A. didn’t file the initial charges in juvenile court which would have afforded me a juvenile competency hearing before transferring me to adult court. He didn’t give the juvenile court judge a say in the matter. The D.A. himself decided to automatically charge me as an adult.

This decision by the D.A. gave the judge very little say in what he could sentence me to. With the charges the D.A. chose to file against me, the law told the judge he “shall” sentence me to 25 -Life.  Plus the law told him to sentence me to an additional 10 years, 20 years, or 25-Life for a weapon enhancement. Due to some legal issues, the judge was forced to throw out the additional 20 years, leaving him to sentence me to JLWOP (Juvenile Life Without Parole) plus 10 years.

While I wasn’t afforded a juvenile competency hearing, being a child I was not eligible for the death penalty either. But adults sentenced to the death penalty are afforded special legal protections, those sentenced to Life Without Parole are not. Our laws state that on the one side, I don’t have to be treated like a child, while at the same time because I was a child I couldn’t be given the Death Penalty and the special legal protections that come with that sentence.

An adult’s maximum sentence is the Death Penalty with a reduced sentence of Life Without Parole. As minor’s maximum sentence is JLWOP with a reduced sentence of 25 years to Life in Prison. For an adult to receive the maximum sentence, the jury must decide to give it to them. A minor is not afforded this protection. The decision is left completely up to the judge at that point. For an adult, the jury gets to decide if the supposed “harsher” of the two sentences may be imposed. While the decision to sentence a minor tried as an adult  is not up the jury.

Being an adult and sentenced to the Death Penalty may actually be better from a legal perspective than a juvenile sentenced to LWOP. Adults sentenced to the death penalty are given automatic review of their case by the California Supreme Court. This review is to make sure that the individual sentenced to death is actually guilty. Which is good because in the United States around 300 individuals sentenced to death have been proven factually innocent and released from prison.

Juveniles sentenced to JLWOP are given no such automatic reviews. Their appeals are often denied with little review at the lower level courts, which is what happened with my case. There are factual evidentiary issues in my case still unresolved because the 3rd District Court of Appeals refused to rule on certain specific issues.

One example is whether the D.A. is lying that he did not know the coroner had a criminal drug history or is the coroner is lying that the D.A. did in fact know. It has been factually proven that the elected District Attorney for El Dorado County knew after he repeatedly lied about knowing during his political campaign and in his interviews with the local newspaper. He eventually admitted that he did in fact know about the coroner’s criminal drug history after my new lawyers obtained documented fax records from the Sacramento County’s office. Sacramento County’s D.A. faxed the El Dorado County’s D.A. the information on the coroner a year before I was even arrested. These factual documents proving the elected D.A. knew forced him to finally admit that he did know.

What is still unresolved is whether or not the prosecuting attorney working under the elected D.A. knew and withheld information; which is what the coroner claims. After the elected D.A.  continuously lied about this issue is it so hard to imagine the prosecuting attorney lying too? And why was a coroner on professional probation for criminal drug use even allowed to testify as an expert witness at trial? Either the coroner or the prosecuting attorney is lying in their sworn declarations signed under the penalty of perjury, and to this day no court has resolved which on is in fact lying.

Another example of an unresolved issue is that the prosecuting attorney presented evidence that J.D. Petty delivered a gun to my mom’s house. Petty originally told the detectives two other stories on how he claimed he had delivered the gun, which the detectives proved to be lies through simple questioning. His third story that the detectives did not question is what the D.A.  presented at trial. Petty now claimed that at 7:55 AM he delivered the gun to my mom’s house, citing a 7:55 AM cell phone call to corroborate his timing, and that he picked it up after school that afternoon. At trial Petty’s account of picking up the gun that afternoon was quickly proven to be false. It wasn’t until later, at my motion for a new trial that factual evidence was presented that proved J.D. Petty was present at the start of school that morning at 7:55 AM, 10 minutes away from my mom’s house. How can Petty be at two places at once? The factual evidence of Petty being at school at 7:55 AM once again proves that J.D. Petty is a liar.

The superior Court judge hearing my motion for a new trial simply dismissed this factual evidence by saying “Not all clocks tell the same time.” This “judge” was referring to time stamped business records; specifically Petty’s cell phone record and his computer generated school attendance record; not the clock on the wall but factual business records with time stamps on them. The 3rd District Court of Appeals simply stated that this was an unresolved issue… if they aren’t the ones to resolve it then who is?

With JLWOPs not guaranteed automatic review by the CA Supreme Court, the CA Supreme Court refused to even hear my case. But had I been a Death Penalty case, not just a child sentenced to die in prison, the CA Supreme Court would have been obligated to review my case. Being a child tried as an adult, taken advantage of at every turn by the criminal justice system, not protected by the adults there to protect me, and then denied the legal rights I need to prove my innocence only adds insult to the grievous injury.

Because one judge decided “Not all clocks tell the same time” I still sit in prison. Sentenced as a child to a  life in prison without the possibility of parole. The other death penalty.

written by Sean O’Brien

About Sean & Emelia

In 2003 Sean O'Brien was wrongfully convicted in El Dorado County, CA and sentenced to Life Without Parole at the age of 16. We have been friends since grade school and are now married. Sean and I move forward together with the knowledge of his innocence, our faith in God, and hope that he will rightfully regain his freedom. Until then we embrace our journey wherever it may take us, cherishing each moment we have together and staying true to ourselves. This blog is about the past we share, our fight for freedom, life as it exists for us, and our path toward the future, whatever that may hold. Thank you for allowing us to be heard. God bless.
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