Davis Is Reversed in Parole Dispute

By JENIFER WARREN

March 31, 2002 12 AM PT

TIMES STAFF WRITER

SACRAMENTO — In a second slap at Gov. Gray Davis’ practice of blocking parole for convicted murderers, a judge has ordered the release of a Los Angeles man who has served 17 years for a drug-related killing.

Unless the California Supreme Court agrees to delay the release while Davis appeals, inmate Mark Smith--who suffers from AIDS, cancer and heart disease--could be freed as early as Thursday.

Smith, 46, was ruled suitable for parole by the state Board of Prison Terms in June 2000. But Davis overturned the decision, calling Smith a “person with little regard for human life.”

Los Angeles Superior Court Judge Keith L. Schwartz, ruling earlier this month, said there was no evidence to support the governor’s action. He also said Davis had wrongly labeled Smith as one of the killers, rather than an accomplice, and had exaggerated his criminal history.

“This court is keenly aware of the fact that it is being asked to second-guess the governor of this great state,” Schwartz wrote. But though “reasonable minds can differ” over whether a prisoner is ready to be paroled, the board clearly made the correct decision on Smith, the judge concluded.

Critics of Davis’ parole record praised Schwartz for stepping in.

“It’s becoming more and more apparent that when it comes to homicide, Gov. Davis has a policy of no parole that completely disregards the law,” said Peter Keane, dean of Golden Gate University Law School. “The courts are not going to look away from this.”

Deputy Atty. Gen. Diann Sokoloff, who is handling the Smith case, said Davis was within his authority in blocking the inmate’s parole. She said Judge Schwartz’s decision, if upheld, would undermine the parole review power granted to governors under Proposition 89, an initiative passed by voters in 1988.

After taking office, Davis suggested that no murderers would go free on his watch, no matter the circumstances of their crimes: “If you take someone else’s life, forget it,” he told The Times.

During his tenure, the parole board--composed of Davis appointees--has recommended the release of 82 murderers, or about 1% of all cases that have come before it. Davis has approved parole for just one--a woman who shot her abusive boyfriend and, the governor concluded, might never have been convicted had the battered-women’s legal defense been available at the time of her trial.

In an interview Thursday, Davis insisted he does not have a blanket policy against parole, an approach that would violate an inmate’s right to an individualized review.

“We did parole [one],” Davis said, referring to the single release he sanctioned, that of Rose Ann Parker in 2000.

Lawyers who advocate for inmates said that by blocking the release of 81 of the 82 killers he has considered, Davis has proved that he has a no-parole policy when it comes to murder.

“The governor has taken a sentence that provides for the possibility of parole and just eliminated it in California,” said Donald Specter, an attorney for the nonprofit Prison Law Office. “It’s hard not to conclude that he’s a cold-hearted person who doesn’t believe in redemption.”

The Smith case is the second in which a court has rebuked Davis for vetoing an inmate’s release. The first involved Robert Rosenkrantz, convicted of second-degree murder for the 1985 killing of a Calabasas schoolmate who exposed him as a homosexual.

The governor called Rosenkrantz a “significant risk to society” and kept him behind bars. But in January, the 2nd District Court of Appeal said Davis had exceeded his authority to decide paroles, which it said is not “absolute.”

Ruling in Second Case Is Expected

Next month, the state Supreme Court will decide whether to review Davis’ appeal in the Rosenkrantz case. If the court declines, Rosenkrantz would probably be freed immediately, Specter said.

Smith was convicted of second-degree murder in the 1985 killing of Rick Diamonon, who was shot and then drowned in a creek in Topanga Canyon, apparently after an argument over cocaine.

At a June 2000 hearing, the parole board found that Smith would not pose a threat to society if released. Board members praised his exemplary prison record and noted that the sentencing judge had written to request his release, indicating that Smith was the least culpable party in the crime.

The hearing transcript shows that Smith was diagnosed with terminal AIDS in 1994, has been treated for two types of head and neck cancers, and suffers from dementia. He had trouble following the proceedings, and a prison psychologist concluded that “since his dementia is progressive, it is unrealistic to expect any improvement.” The state classifies him as totally disabled and unable to work.

In overruling the board’s grant of parole, Davis said Smith had a “significant criminal record” and noted that the Los Angeles County Sheriff’s Department--which concluded that Smith fired the fatal shots--opposed parole.

“Smith committed a wanton and violent act against another ... for something as inconsequential as an unsatisfactory drug deal,” Davis said.

But Judge Schwartz said the conclusion that Smith was the shooter is “completely unsupported by the record.”

Specifically, he said the judge who sentenced Smith had concluded that the weight of the evidence pointed toward his accomplice as the gunman.

Schwartz also said that contrary to Davis’ assertion, Smith’s prior record was minor--including a trespass, attempted burglary and two misdemeanor petty thefts--and noted that the Los Angeles County district attorney’s office did not oppose parole.

“All the evidence clearly supports ... granting a parole date,” Schwartz wrote.

If Smith’s release is ultimately sanctioned by a higher court, he plans to return home to live with his parents in suburban Los Angeles. He has several job offers and hopes to continue painting, a hobby he developed in prison.

Smith’s mother, Dolores Padilla, said she has been praying for her son’s return for years, and hopes he has some life left to live if he is paroled. In addition to cancer and AIDS, Smith had a heart attack a few years ago, and was recently diagnosed with Parkinson’s disease.

“He’s been ill for quite awhile now, but he’s so hopeful,” Padilla said. “Of course, we don’t know how long he has.”