Death penalty withdrawn in slain cop case

January 16, 2009 6:34:50 PM PST
The Santa Clara County District Attorney's Office will withdraw its request for the death penalty in the case of accused cop killer DeShawn Campbell following a judge's ruling that the man is mentally retarded.

The family of slain San Jose police Officer Jeffrey Fontana, who was fatally shot in October 2001 during a routine traffic stop on Calle Almaden in south San Jose's Almaden neighborhood, joined District Attorney Dolores Carr today to announce the decision to take the death penalty off the table.

"Withdrawing the death penalty in this case is an extremely difficult decision for me, for this office, to make," Carr said. "I continue to believe that the death penalty is an appropriate penalty in certain cases, including this one."

Prosecutors instead will seek a sentence of life without the possibility of parole.

Family members, prosecutors and police Chief Rob Davis each reiterated their disappointment with Judge Diane Northway's recent decision to change her August 2007 ruling that Campbell is not mentally retarded.

The Court of Appeals in January 2008 requested Northway consider reopening the hearing with new evidence after a witness gave incorrect testimony about Campbell during the first hearing.

Northway changed her ruling Dec. 19, 2008, after hearing from a defense expert and ruled that Campbell is mentally retarded.

The expert, according to Carr, relied on a standardized test but used the test it in a way that should have rendered the results inconclusive.

"We therefore respectfully, but vehemently, disagree with Judge Northway's decision because we believe that it was profoundly unscientific, and wrong," Carr said.

Carr blamed the specifics of a law that prohibits the death penalty in cases where a defendant is mentally retarded. She said the law provides for no standardized method for proving whether a person is mentally retarded, leaving the decision up to judges presented with various forms of contradictory evidence.

Because an appeal on the ruling would delay the seven-year-old case even further and would likely be fruitless, the case will go to trial Tuesday, prosecutor Lane Liroff said.

"Obviously we're disappointed," Davis said of the "ultimate justice" begin taken off the table.

He said there will be outreach to the Police Department to help employees understand the case and continue with their work professionally.

Fontana's younger brother, Greg Fontana, said his family is also disappointed but has come to terms with the case.

"We're comfortable with life without the possibility of parole," Greg Fontana said. "We would've loved the death penalty because it would have been the ultimate justice, and Jeff, being a police officer, he deserves that justice."

Greg Fontana described his brother as an athletic, funny and charming man who growing up knew he wanted to be a cop.

"(Jeff) was a great cop, and unfortunately he died doing what he loved," he said.