Davis' lawyer argues client wasn't told of right to counsel

SAN FRANCISCO -- More than 15 years after the disappearance and murder of 12-year-old Polly Klaas of Petaluma grabbed headlines around the country, her killer's attorney appeared before the state's high court on Tuesday, asking that his conviction be tossed out.

At issue during the hourlong California Supreme Court hearing was a brief encounter Richard Allen Davis had with Petaluma Police Sgt. Mike Meese hours before his Dec. 4, 1993, videotaped confession, without an attorney present. Davis' appeals lawyer, Phillip Cherney, argued Tuesday that authorities failed to properly inform his client of his right to counsel.

"If he were a rich man, he would have had counsel at his side," Cherney told the Supreme Court.

On the videotape, Davis admitted strangling Polly two months earlier, after abducting her from her home during a girls' slumber party, where he also tied up two of her friends.

Davis, who had been arrested on burglary charges while Klaas remained missing, became the prime suspect after police matched his palm print to one found in the girl's bedroom. While being taken for fingerprinting, Meese asked Davis if the girl was still alive. Davis replied that he had nothing to do with Polly's disappearance and Meese told the suspect to call him if he wanted to talk.

Shortly afterward, Davis called Meese and told him Polly was dead.

Such encounters between police and suspects are often tossed out of court because of failure to inform suspects about their rights to an attorney. But there's an exception called the "rescue doctrine" that allows police to ignore a suspect's rights to counsel if they believe someone's life is in jeopardy.

The majority of seven justices appeared skeptical of Davis' appeal, which turns on the notion that the police had little reason to believe that Polly was still alive after going missing for more than 60 days. They appeared to agree with Senior Assistant Attorney General Ronald Matthias' argument that as long as the slightest chance existed that the girl was still alive, then police were justified in ignoring his rights to consult an attorney.

"There are factors so important that they override the right to counsel," Chief Justice Ronald George said during the arguments.

Jurors in 1996 found Davis guilty of first-degree murder and of the "special circumstances" of kidnapping, burglary, robbery and attempting a lewd act on a child, making him eligible for the death penalty.

Polly's death at the hands of Davis, who had an extensive kidnap and assault record going back to the 1970s, led to the creation of California's three-strikes law. Voters approved the law in 1994 requiring a 25-years-to-life sentence for criminals.

In 662 pages of documents filed with the court, Cherney also alleged other grounds to overturn the conviction, including prosecutor misconduct to improper jury instructions. Cherney even complained that California's inability to quickly carry out executions is itself wrong because for Davis "to endure the uncertainty and ever-present tension on death row for such an extended time constitutes cruel and unusual punishment."

The California Supreme Court must rule on the case within 90 days.

Though the Supreme Court affirms nearly all death penalty cases, chances are that Richard Allen Davis will die of something other than execution even if his 1996 sentence is upheld. State and federal court challenges have put executions on indefinite hold for the past three years.

"He has already outlived one of Polly's grandparents," said Marc Klaas, the victim's father. "It is an absolute travesty of justice."

U.S. District Court Judge Jeremy Fogel halted executions in February 2006 and ordered the state to revise flawed lethal injection procedures.

State officials have since changed the dosage of the lethal three-drug cocktail, improved staff training and spent $850,000 on a new, roomier and brighter death chamber at San Quentin. But before prison officials could submit the new procedures for Fogel's approval, a state judge ruled in December 2007 that the revised protocols had to first be reviewed by the public before they could be implemented.

Seth Unger, a spokesman for the state's prison system, said Tuesday that authorities have dropped their challenge to the state judge's ruling after 14 months of appeals and will soon solicit public comment on the new procedures, a process that could take more than a year to complete. Even then, there's uncertainty whether executions will quickly resume once the public comment is gathered.

Davis, now 54, has been now on California's death row for well over a decade, with his appeals likely to continue through the federal court system for at least several more years.

"We don't have the death penalty in California, so we can let these creeps live on death row for years and years," Marc Klaas said.