A Los Angeles County Superior Court judge has refused to rubber stamp an agreement between a controversial prosecutor and defense attorneys to remove a man from death row for a 1996 double murder in South Gate.

In a sign that the bench is beginning to push back against some of District Attorney George Gascón’s sweeping social justice policies, Judge Roger Ito last week in a Norwalk court rejected Deputy District Attorney Shelan Joseph’s stipulation to defense claims that 57-year-old Samuel Zamudio is intellectually disabled, exempting him from the death penalty.

Joseph, an ally of Gascon hired from the Los Angeles County Public Defender’s Office, has requested that Zamudio be resentenced to life in prison without the possibility of parole.

Judge to question psychologist

Instead, Ito has scheduled an evidentiary hearing for March 18, 2022, so he can question a psychologist who evaluated Zamudio, who was sentenced to death in 1997 for the fatal stabbings of 79-year-old Elmer Benson, and his wife, Gladys, 74, during a robbery at their South Gate home.

“He (Ito) said that this is the first time as a bench officer that he has not accepted a proposed stipulation between the parties,” said Kathleen Cady, an attorney who represents the Bensons’ children, Jane Bouffard and Tom Vardon. “The judge said that he wants to ensure that the process is transparent for the people, the defendant, the victims and the public.”

The District Attorney’s Office did not immediately respond to a request for comment. Zamudio’s case is pending before the court due to a habeas corpus petition, which is typically used to determine if an inmate’s detention is lawful.

Attorneys with the San Francisco-based Habeas Corpus Resource Center representing Zamudio have indicated they intend to file a motion to disqualify Ito, Cady added. Officials with the center declined to comment.

Joseph said in the stipulation filed with the court on Nov. 30 that Zamudio’s  intellectual disability diagnosis is supported by 35 exhibits, including mental health, education and jail records along with declarations from doctors and psychologists.

“The Los Angeles County District  Attorney’s Office believes that Mr. Zamudio has established that he is intellectually disabled,” the stipulation says. “Respondent will not support executing a person who is intellectually disabled.”

Gov. Gavin Newsom has placed a moratorium on executions in California, which has not put an inmate to death since 2006.

The U.S. Supreme Court has ruled that executing people with intellectual disabilities violates the Eighth Amendment prohibition against cruel and unusual punishment.

Collusion between Gascón, AG?

Bouffard and Vardon believe Joseph is attempting to concede the defense’s intellectual disability claim because of Gascón’s opposition to the death penalty and not due to the law or facts of the case, Cady said.

“They have a right to expect that DA Gascón follow the law as enacted by the legislators and the voters, and not undertake to change a sentence based on his own personal philosophy and policy,” she said. “Based on what has occurred, it appears that the prosecutor and defense are colluding to subvert justice because of Gascón’s policy against the death penalty.”

Aside from Cady’s criticism, Gascón also faces a second recall effort, which the Prosecutors Alliance of California believes is destined to fail.

“Recall proponents stand for more punishment, not more safety,” Cristine DeBerry, founder and executive director of the alliance, said in a statement. “Dated, tough-on-crime approaches have not made our communities safer, but have produced insecurity and instability that has increased recidivism rates and exacerbated homelessness in our communities.

“Fully 95 percent of the people we send to prison will come home, and research has consistently shown that longer sentences can actually make individuals more likely to commit future crimes,” DeBarry said. “It’s time to stop the finger pointing and work with us on prevention and problem solving.”

Elsewhere, Gascón’s staff members are revolting against what they describe as his soft-on-crime approach to reimagining justice in Los Angeles County.

A high-ranking prosecutor, who asked not to be identified for fear of retaliation, alleges Gascón and California Attorney General Rob Bonta are working in tandem as part of an apparent legal strategy that already has overturned the death penalty sentences of at least four Los Angeles County convicted killers.

On Nov. 5, Bonta filed notices of withdrawal in Los Angeles County Superior Court and deferred to the District Attorney’s Office habeas corpus petitions from the condemned inmates challenging their death sentences, records show.

In each instance, the District Attorney’s Office then told the court it conceded the inmates’ claims and asked the judge to vacate their death sentences. As a result, each inmate was resentenced to life in prison without the possibility of parole.

The Attorney General’s Office has recently filed at least 20 other withdrawal notices, prompting Gascón’s critics to fear that more convicted killers will soon also have their death sentences vacated.

“When Proposition 66 passed in 2016, returning petitions challenging death penalty convictions to local trial courts, some district attorneys requested that the California Department of Justice work with them to handle these cases,” a spokesperson for the Attorney General’s Office said in a statement.

“At the request of the Los Angeles County District Attorney’s Office, we have agreed to end that temporary arrangement. The locally elected district attorney will assume sole responsibility for state court habeas death penalty cases currently pending before the Los Angeles County Superior Court. We are accordingly respecting that request.”

Gascón is the only district attorney in California to request responsibility for capital cases, according to the Attorney General’s Office.

The prosecutor-turned whistleblower also criticized Gascón for taking more than 50 capital cases that consist of “complex procedural histories” from a half-dozen experienced prosecutors and reassigning them to Joseph.

“These are the most serious and egregious cases in the criminal justice system,”  the prosecutor said. “The California Supreme Court and federal courts have reviewed and upheld the conviction and sentence. Yet, despite all of this, the district attorney has decided to ignore the jury’s findings and the judiciary’s decision.

“To ensure a predetermined outcome based upon his ideology, he placed these cases in the hands of a career public defender, who is not only a longtime advocate against the death penalty, but is willing to take a dive to undermine the case. The victims and the public are left without an advocate.”