After decade on Death Row, Richard Allen Davis' appeal process has barely begin

Some would say Richard Allen Davis has been marching toward execution most of his life.

He launched his criminal career early, a series of robberies and thefts interspersed with vicious attacks on women.

But it was 10 years ago today that he was formally sentenced to death, his punishment for the kidnap and murder of Petaluma seventh-grader Polly Klaas.

Polly, a fun-loving 12-year-old whose bright brown eyes would become forever seared in the memories of Sonoma County residents when she was taken, would be 25 had she survived her encounter with Davis 13 years ago this Sunday.

She's now been dead, her father noted last week, longer than she was alive.

But against the persistent grind of history, of lives lived and loved ones mourned, Davis' countdown to death is far from over.

Confined to a 5?-by-8-foot cell at San Quentin State Prison, he still awaits his first appellate hearings, which may be three years away.

Davis is among 661 condemned inmates in California, most of them slogging through the same unpredictable process as he.

Thirteen men have been put to death in California since 1978, when the death sentence was reinstated. On average, they spent 17? years on Death Row before being executed.

But that average is skewed low by David Mason, who was condemned for nine years before giving up any further right to appeal. He was executed in 1993.

It also hides a trend toward longer and longer stays of 20 years or more on Death Row, San Quentin State Prison Lt. Eric Messick said.

The longest serving inmate, Lavell Frierson, had his death sentence commuted earlier this month after 28 years on Death Row.

A 22-year condemned inmate, Michael Morales, spent a day in the "death watch" cell last February before he received an 11th-hour reprieve over oft-repeated questions of whether lethal injection - the state's default manner of execution - constituted unlawfully cruel and unusual punishment.

The decision put all California executions on hold indefinitely pending the outcome of a four-day evidentiary hearing in U.S. District Court starting today.

Nathan Barankin, a spokesman for the state Attorney General's Office, said additional appeals were almost inevitable, potentially delaying a conclusive finding - and likely future executions - for several years.

Whether the Morales case adds any time to Davis' wait is uncertain.

His appeal attorney, Phillip Cherney, was not assigned until nearly five years after Davis' judgment was pronounced.

Cherney's first brief in Davis' automatic appeal before the state Supreme Court was filed only last year, and he doesn't expect to file the last until sometime next year.

After that, it could be years before the case is scheduled to go before the court for oral arguments, a panel already overwhelmed by pending cases, Cherney said.

"Davis' case, despite the fact that it may be one of the most notorious cases in California history, doesn't have any priority," he said. "It doesn't have any specific timetable. It's in line behind everything else."

Moreover, the automatic appeal to which all who receive the death penalty are entitled would only be the first of several appeals, as the case proceeds up the chain of federal district and appeals courts and finally produces a petition for hearing before the U.S. Supreme Court, attorneys said.

Parallel habeus corpus proceedings concerning legal matters outside the court record - issues that often include such things as effectiveness of counsel and exculpatory evidence never admitted in court - also must be completed before Davis' death sentence can be affirmed.

Cherney said he has a strong case, summed up in 23 arguments seeking reversal of various portions of Davis' conviction and death sentence.

Among other things, his 482-page brief cites what he says is insufficient evidence to support the jury's finding that Davis attempted a lewd act with Polly, questions about the use of certain photos at trial and testimony from a forensic psychologist about evidence of sexual sadism outside what Cherney said were court-approved limits.

During interviews, he railed against what he called "gross violations of the constitutional rights to counsel and against self-incrimination" involving Davis' unfulfilled request for an attorney during his first interrogation as the prime suspect in Polly's kidnapping.

Davis had not yet been provided an attorney four days later, when he confessed to strangling her to death.

Cherney also complains that the change of venue for Davis' trial, which was moved to Santa Clara County after attempts to seat an impartial jury in Sonoma County failed, was bound to prove ineffective because both communities rely on the same media pool, saturated with the same horrific stories in the case.

"To me that's no change of venue at all," he said.

Both issues, like others listed in Davis' appeal, were litigated before and during the trial in favor of the prosecution, resulting in decisions that governed how the case unfolded.

In his own brief on the case, Deputy State Attorney General Ronald S. Matthias said ample legal precedents support those rulings.

Retired Assistant District Attorney Greg Jacobs, who prosecuted Davis and assisted Matthias with preparation of his appeal response, talked of Davis' eagerness to confess once a friend warned him that his palm print had been found on Polly's top bunk.

"He's the one that initiated the contact and made the admission over the phone," Jacobs said.

Davis' ultimate sentence, delivered after a series of emotional statements from Polly's survivors, may best be remembered for his own hateful remarks, in which he leveled accusations at the girl's father, Marc Klaas.

Klaas said he's given no consideration to "the obscene little anniversary" marked today and "the veil of gloom" produced by Polly's disappearance and death has finally begun to lift.

"I don't consider him, but he is always there," Klaas said of Davis. "And he always will be.

"But you know how much he controlled me. There was that period from the moment he took my child to the moment the judge finally sentenced him. But we can't let this guy have a stranglehold on our lives."