I am here today to announce that we have decided not to appeal the ruling by Judge Northway that DeShawn Campbell is mentally retarded. That ruling prevents us from seeking the death penalty for Campbell’s murder of San Jose Police Department Officer Jeffrey Fontana. I have instructed our attorneys to withdraw our request for the death penalty in that case.
Instead, we hope to proceed to trial within the next few weeks. Assuming that Campbell is convicted, we will seek the maximum available penalty against Campbell—life in prison without possibility of parole.
Withdrawing our request for the death penalty in this case is an extremely difficult decision for me, and for this Office, to make. I continue to believe that the death penalty is an appropriate penalty in certain cases, including this one. Although the Fontana family is here and can speak for themselves, I know that they too believe that the death penalty remains the appropriate penalty for Campbell’s murder of their son, a police officer who was killed in the line of duty.
This Office carefully screens every eligible case to determine when it is appropriate to seek the death penalty. In the few cases where we decide to seek it, we understand that we are undertaking a monumental effort which will take many years to complete. We understand and accept that the law imposes a substantial series of obstacles in death penalty cases, in order to assure that the ultimate penalty is applied fairly. We devote substantial resources to prosecuting such cases, and do whatever is reasonably necessary to assure that justice is done.   In such cases we ask the families of victims to wait patiently while the wheels of justice grind on, as the Fontanas have done here with grace and dignity. We owe them, and our community, our maximum determination and effort. We have fulfilled that obligation in this case for the past seven years. We have always been committed to doing so for as long as necessary.
We are ending our pursuit of the death penalty in this case only because we are compelled to do so by a change in the law after we filed charges, and how it has been interpreted in this case.
Shortly after we filed murder charges against DeShawn Campbell, the U.S. Supreme Court, in the case of Atkins v. Virginia, declared it unconstitutional to impose the death penalty against a mentally retarded defendant, regardless of the circumstances of the crime. The Court found that mental retardation makes such defendants less culpable for their crimes, and thus makes the death penalty inappropriate. While this principle is reasonable in the abstract, the way in which that principle has been applied after Atkins is not.
When the United States Supreme Court decided that it was unconstitutional to impose the death penalty on mentally retarded defendants, it did not define what standards or procedures courts must follow in evaluating claims of mental retardation.
This has created a significant problem because of the lack of reliable standardized tests for diagnosing one aspect of mental retardation: that a defendant has “adaptive deficits” which prevent him from functioning in society. As one defense expert put it, the available standardized tests produce results which are “conceptually and methodologically a mess.”
With California law only requiring a defendant to prove that he is “more likely than not” to be mentally retarded, this uncertainty increases the risk that a defendant will mistakenly be found to be mentally retarded based on unreliable test results. Or, as one defense expert put it, relying on such standardized tests is “a clear case, not of science, but of pseudoscience”.
The lack of recognized standards means that legal decisions may be divorced from science, and judges left without clear guidance on how to determine whether a defendant is mentally retarded. Indeed, Judge Northway at first decided that Campbell was not mentally retarded based on her finding that one such standardized test was unreliable as it was used by defense experts. After that decision was reversed by the appellate court because a witness had given erroneous, and prejudicial, testimony about Campbell, the mental retardation hearing was reopened.
Judge Northway changed her ruling after hearing from only one additional defense expert. That expert relied almost exclusively on a different test, called the Vineland, and used it in a nonstandardized fashion--in other words, not in the manner the test was designed. In addition, the version of the Vineland used by the expert is proven to score mental retardation where none exists. Another version, also relied upon by this expert, is known to provide significantly lower scores for African-Americans than for Caucasians and Hispanics. Nonetheless, the expert’s opinion, based on this flawed test, was accepted by the court.   We therefore respectfully, but vehemently, disagree with Judge Northway’s decision because we believe that it is profoundly unscientific, and wrong. However, the fault lies less with a single judge sorting through a daunting mass of contradictory and unreliable evidence, than with a law which encourages experts to pick and choose between tests which are not backed by science.
Unfortunately, although we would like to appeal Judge Northway’s decision, it is clear that such an appeal would not succeed. A judge’s decision that a defendant is “mentally retarded” cannot be overturned unless there is no “substantial evidence” supporting that decision. Because there are no standards for defining what tests are scientifically reliable, an appeals court would very likely accept all such tests, and results, as “substantial evidence” sufficient to deny our appeal. Although this circular reasoning leads to injustice, it is the inevitable result of a law which fails to exclude unscientific evidence.
In a case of this importance, it was only prudent to seek a second opinion before deciding whether or not to appeal. The Attorney General’s Office specializes in such appeals, and would typically represent the People of the State of California in such an effort. We sought their opinion concerning this case; a copy of their response is attached to this statement. Their experts believe that an appeal in this case would be fruitless. Indeed, the Attorney General’s Office advised us that it would not bring the appeal on our behalf, and recommended that we not appeal it. This is a strong signal that an appeal would fail, and we appreciate the Attorney General’s candor in this regard.   As much as we feel a duty to our community, and to the Fontanas, to press on, we also have a duty to make responsible decisions in furtherance of justice. A fruitless appeal would merely delay this case for at least another year and damage public confidence in the criminal justice system. Therefore, we will proceed to trial immediately and, if successful, seek a sentence of life without the possibility of parole.

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