O.C. victim’s father doesn’t expect to see death penalty carried out

Steve Herr assumes he won’t live to see the execution of the man convicted of murdering and then decapitating his son in the attic of an Orange County theater.

“Realistically, I’m not going to be around when he’s put to death,� Herr, 67, said a few days after a jury recommended the death penalty for Daniel Wozniak. “I’ll be dead.�

Orange County Superior Court Judge John Conley is scheduled in March to sentence Wozniak, 31, for the shooting and beheading of 26-year-old Army veteran Sam Herr and the shooting of Herr’s friend Juri “Julie� Kibuishi, 23, in May 2010.

Wozniak, a community theater actor from Costa Mesa, was desperate for money to fund his upcoming wedding, so he killed the two as part of a plan to steal $62,000 from Herr’s bank account, according to prosecutors.

After Wozniak’s conviction last month, jurors took less than an hour last Monday to decide that he deserved to die for the slayings. Orange County Dist. Atty. Tony Rackauckas said it was the fastest capital punishment decision he could recall.

Wozniak’s case took more than five years to go to trial, and despite the jury’s decisiveness, its death sentence verdict is just the beginning of another long process that may or may not end with Wozniak’s execution.

In California, where capital punishment has been on hold for a decade, it’s an open question whether convicts sent to death row today will ever have their sentences carried out.

In 2006, the state placed a moratorium on the death penalty when a judge ruled that a three-drug lethal injection could cause inhumane suffering.

In November, officials unveiled a one-drug injection that could lead to a resumption of executions, but the method still faces months of public vetting and possible legal challenges.

Even before the moratorium, “the reality in California is that, of those who are sentenced to death, very few have been executed and it’s taken an enormously long time,� said Erwin Chemerinsky, dean of the UC Irvine law school.

Since capital punishment was reinstated in California in 1977, juries have sent 900 inmates to death row and 13 have been executed, according to court papers written by Cormac Carney, a federal judge in Orange County.

On average, there is a 25-year delay between a death sentence being handed down and it being carried out, and that gap is getting longer, according to the judge.

Many factors contribute to the decades of lag time between a death sentence and an execution, Chemerinsky said.

To begin with, all death sentences in California are automatically appealed.

Before any work can be done on the case, a lawyer must be appointed. That in itself can take years.

A 2004 report commissioned by the California Legislature blamed that on budget cuts at the state public defender’s office and on the low pay offered to private attorneys willing to take the assignments.

Another factor is that all such appeals go directly to California’s Supreme Court, which hears only about 20 to 25 such cases a year, according to Carney.

After years of reviewing and briefing their cases, attorneys might wait two to three more years before the court has time to hear their arguments, the judge wrote.

Inmates who lose their appeal to the Supreme Court can appeal again for the court’s consideration. If those appeals are exhausted, inmates can petition a federal court for review, further extending the process.

More condemned inmates die of natural causes than are put to death, according to California Department of Corrections figures that Carney cited in his decision.

“As for the random few for whom execution does become a reality, they will have languished for so long on death row that their execution will serve no retributive or deterrent purpose and will be arbitrary,� Carney wrote.

But such arguments and capital punishment’s murky future did not deter the Orange County district attorney’s office from pursuing a death sentence for Wozniak.

“Cases like this are a perfect example of why the death penalty is appropriate,� Senior Deputy Dist. Atty. Matt Murphy said at a news conference after the jury’s decision.

Prosecutors in Orange County seek capital punishment on only about 4% of eligible cases, but the brutality of Wozniak’s crimes called for the severest penalty, Murphy said.

During the trial, jurors heard testimony that Wozniak dismembered Herr’s body before tossing some of the parts in a Long Beach park in a failed attempt to throw police off his trail.

To further the coverup, Wozniak used Herr’s phone to lure Kibuishi to Herr’s apartment, then killed her and staged her body to make it seem as if Herr had raped her and fled, Murphy said.

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Jeremiah Dobruck writes for Times Community News.