The Jury’s Plea for an Explanation

SACRAMENTO — Envision the electorate as a jury--and a candidate with a suspect position as the defendant. A crucial decision for any defendant and defense attorney (a.k.a. campaign strategist) is whether to take the stand and testify.

Several factors must be weighed: Does the defendant have anything to hide? Could the defendant withstand the cross-examination of the prosecutor (the campaign rival)? Would the defendant seem credible to jurors? Might the defendant’s testimony undermine the defense evidence already presented?

If the conclusion is that testifying would be risky, this still must be weighed against an important characteristic of human nature: Jurors want to hear in the defendant’s own words an explanation for what looks suspect. Sure, the defendant has a right not to testify. But, jurors ask themselves, “Why doesn’t this person get up there and talk to us, explain it?”

This analogy occurred to me Monday after I asked Treasurer Kathleen Brown for her view of the death penalty--why was she opposed to it--and she replied, “That’s irrelevant.”

Perhaps not to the voters she will be asking to elect her governor next year, I noted. “The issue the voters care about is will the governor enforce the death penalty,” she insisted. “And I have stated quite clearly my intent to enforce the law and enforce the death penalty.”

*

This exchange took place during one of those circus-atmosphere “availabilities” with reporters that politicians love because they can more easily control the dialogue and duration than at a regular news conference. We were jammed into a cranny of a Holiday Inn ballroom in Burbank after Brown had delivered a luncheon speech outlining her new anti-crime program to a law enforcement labor group.

It was Brown’s third major policy speech of recent months--the others being on immigration and education--and this one must have set a Guinness record for separate proposals by a politician not delivering a State of the Union address. It was a 33-point plan--the usual standard is 10 points--and it covered everything, as she later told me, “from soup to nuts.” It was 3,300 words on juvenile offenders, repeat felons, beat cops, drugs and guns--but only a sketchy few at the end on capital punishment.

“The governor will try to focus your attention on one issue--the death penalty,” she predicted correctly. “But here is the truth about that issue: Regardless of my personal beliefs or the governor’s personal beliefs, regardless of what any politicians in this state may say, the death penalty is the law of this state and I will enforce it . There is no difference between Kathleen Brown and Pete Wilson when it comes to enforcing the death penalty.”

That’s it and that’s all she wanted to say about it.

To reporters who pressed her afterward, she asserted: “The death penalty is not an issue. It is the law. . . . I would use the same standards that every governor has used in reviewing (clemency) cases. . . . I’m not going to play around with the issue of the death penalty.”

*

So Brown has decided not to take the stand. She figures it’s her best strategy.

The conclusion is that whatever she says--about how she would handle clemency hearings for murderers awaiting execution, whether she would veto bills strengthening the death penalty, her reason for opposing capital punishment--merely would provide more material for the prosecutorial governor to probe. Not only him, but also her rival for the Democratic nomination, Insurance Commissioner John Garamendi, a death penalty supporter.

And there is a background factor that also may affect her credibility, she knows. Both her father and her brother took some highly unpopular actions as governor because of their opposition to the death penalty, and it hurt them with voters. So for a Brown, she thinks, the less said about capital punishment the better.

Also, to have elaborated on the death penalty Monday could have undermined the tough-on-crime image she was projecting and detracted from the 33 points. That much of the strategy worked. News coverage was generally positive, focusing on the wide range of her “encyclical,” as she later called it, and not dwelling on capital punishment.

But the electorate--the jury--may want to hear more than just “trust me.” Roughly three-fourths of California’s voters favor the death penalty--including two-thirds of the Democrats--according to a 1992 Times poll. For murderers, voters prefer an execution over life imprisonment by 2 to 1.

The jury may let her off on this issue. But they’d probably like to know where she’s coming from, in her own words. Most people will give some slack for heartfelt moral beliefs.