Trying to Save a Murderer’s Life With the Human Touch

On a morning in May of 1995, Denise Gragg sat on the floor in a cramped public defender’s office and talked about the challenge that might come someday of trying to convince 12 jurors to spare John Famalaro’s life.

That “someday” came this week.

“Although I’m accused of having too liberal a view on what cases should or shouldn’t be death penalty cases,” Gragg said that day two years ago, “there are cases where I understand why they are. This is not one of those cases, and I can’t help but think that absent the publicity--if Denise Huber’s body had been found the day after she disappeared instead of three years afterward--I don’t think this would be a death penalty case.”

That’s all academic now, because it is a death penalty case. Jurors slept on their life-or-death deliberations Tuesday night. Today, they resume.

There’s no way to predict their decision, except to note that the same panel last month agreed with the prosecution’s contention that Famalaro kidnapped and sexually assaulted Denise Huber before killing her, two aggravating factors that made him eligible for execution. He was arrested in 1994 after keeping her body in a freezer for three years after killing her.

For a case in which the public defender’s office once hoped the district attorney wouldn’t ask for the death penalty, one gets the sense that death may be the favorite.

That prospect brought me back to my conversation with Gragg and fellow Deputy Public Defender Leonard Gumlia. Some of it was off the record, because the trial was well off in the distance and the two weren’t prepared to concede there even would be a penalty phase.

For that reason, I switched gears and asked about defending highly unpopular clients like Famalaro, at the time about as unpopular a defendant as Orange County had. Our conversation also occurred against the backdrop of the ongoing O.J. Simpson trial and the recent arrest of a man named Timothy McVeigh for the bombing a month earlier of the federal building in Oklahoma City.

“I found that when I first took this job that I was very idealistic and I viewed myself in that way,” Gumlia said. “I was helping the underprivileged and indigent, and it was good to protect individuals’ rights and defend the Constitution and to make sure innocent people weren’t convicted. I no longer have those discussions, at least not very often, with my friends or with people who approach me, because I find I can’t win them as easily as I once could. So I don’t talk about my job publicly, just for that reason.

“I don’t engage in those debates and give people a chance to complain as much as they used to. I stick to myself more. I haven’t tried to affirmatively engage in that kind of colloquy anymore, because I have found I cannot convince the world this [defending unpopular clients] is a necessary act.”

As Famalaro’s fate now hangs in the balance, I remember how committed Gragg and Gumlia were that day to keeping him from being executed. “If we focus them [jurors] on the factors they’re supposed to be considering, we win,” Gragg said. “The only way we lose is if we allow them to get sidetracked by the weirdness. The fact he kept her in a freezer for three years doesn’t make this crime any worse.”

And yet, now that the trial has ended, that “weirdness” surely is somewhere in the jurors’ minds. Not to mention the daily courtroom presence of Denise Huber’s parents and their pained testimony about the impact on their lives of her murder.

Whatever chance Famalaro has is the same one Gragg and Gumlia saw when they took on the case. It would come down to “humanizing” Famalaro, they told me.

“When we’re talking about humanizing,” Gragg said, “we’re not talking about a ploy to make the jury like the guy. But it is the process of learning about him as a human being, so he can be presented to a jury as a whole person, not defined as the charges define him.”

We also talked that morning about my pet peeves with the death penalty--its arbitrariness and politicization. Referring to the Los Angeles district attorney office’s decision not to request the death penalty in the Simpson case, Gumlia noted: “If O.J. can put on a knit cap, put on gloves, carry a weapon to a scene and kill two people and after having some violence in his background . . . “

The task, Gragg said, would be to remind the jurors “of the wide spectrum of killers and to determine whether Famalaro, given all the circumstances of his life and circumstances of this crime, deserves to be killed or not.”

On the day we talked, at a time that now seems so long ago, it was all theory and conjecture on how a jury would treat Famalaro. Perhaps as soon as today, theory will give way to reality.

Gumlia and Gragg will see how good their instincts were about what it would take to save Famalaro’s life.

Dana Parsons’ column appears Wednesday, Friday and Sunday. Readers may reach Parsons by writing to him at The Times Orange County Edition, 1375 Sunflower Ave., Costa Mesa, CA 92626, or calling (714) 966-7821.