03/13/2020
Unintended Consequences and Second Chances
Brian Rettman was the first murder case I ever worked on. I represented Brian in 1997 drafting motions and preparing for trial as a second chair to my now retired boss, Mark Berg. Brian, together with three other young men, attempted to steal a quarter pound of ma*****na from another young man who was handling his brother’s ma*****na dealing enterprise while the older brother was incarcerated. Thinking that being armed would dissuade the dealer from fighting back, they armed themselves with handguns, but there was never any plan on killing anyone nor any intent to kill anyone. During the theft, while Brian was grabbing the bag of pot away from the dealer, one of the other young men pulled his gun and shot the dealer in the head killing him instantly. At the time, three of the four were prosecuted for first degree felony murder with special circumstances and faced life without the possibility of parole or death. Brian was 24 at the time. I was 27. The DA conceded it wasn’t a death case and we resolved for a first degree felony murder to avoid a certain life without the possibility of parole sentence after trial. When Brian entered his plea, Mark told him that if he lived a clean life in prison and committed to his programming, he would have hope that he would return to the world a relatively young man in his late 40’s, Mark’s age at the time.
California in the late 90's was a different state than it is today. Pete Wilson was Governor. The Three Strikes Law had recently been passed. California had resumed executions in 1992. And notwithstanding Mark's advice to Brian that he would have the hope of being released as a relatively young man, lifers were simply never getting paroled. While the decision to plea was a difficult one for all of us, there really was no better option under the laws as they existed at the time. For California included in its definition of first degree murder, not only offenses for which a person killed with premeditation and deliberation, but also killings that happened without premeditation, deliberation, or even the intent to kill where the killing occurred during the commission of a robbery. And as applicable to Brian, any participant in the robbery, was just as guilty of first degree murder as the actual killer.
In 2018 the California Legislature passed SB1437 which redefined accessory liability for homicides committed during a robbery such that it would still be first degree murder for the actual killer, one who aids the actual killer with the intent to kill, and to a major participant in the felony who personally acted with reckless disregard for human life. In addition to changing the culpability for crimes occurring after the statute's passing, SB1437 also provided a vehicle for those convicted of felony murder to petition the court to hold a hearing to establish whether they continued to be guilty of murder under the new definition.
When SB1437 passed, Brian was the first person I thought of. I filed a petition on Brian's behalf. First we litigated whether the legislature had the constitutional authority to change the law of murder in passing SB1437. We prevailed. The District Attorney conceded that Brian wasn't the person who actually killed the drug dealer, nor did he have the intent to kill necessary for aider and abettor liability. We were therefore set for a hearing on the issue of whether Brian was a major participant in the robbery acting with reckless disregard for human life. On the eve of the hearing, after a year and a half of litigation, and after 22 years in prison serving a life sentence for murder, we were able to renegotiate the case last week. Brian entered a new plea to a voluntary manslaughter in lieu of the murder charge. All other pleas remained the same as in 1998. Brian was released from custody two days later a free man at 47 with no parole supervision in light of his 26.5 years of credit against his 13 year 8 month sentence.
Brian Rettman is certified as a master welder and has been teaching welding to other inmates in Valley State Prison for 10 years. I understand he has already been hired as a welder. He is respectful, articulate, contrite, and remorseful. I wish him all the happiness life has to offer and am happy he now has dinner with his mother every night. Quite simply the best day of my professional life.
I must thank the members of the legislature for having the foresight to recognize that treating those who engage in felonies the same as calculated cold-blooded killers was unjust. Brian Rettman never intended to kill anyone. The unfortunate loss of another young man back in 1997 was an unintended consequence of a poorly thought out plan, by a bunch of young men acting without the benefit of experience, prudence, or hindsight.
Thanks also is extended to the many defense attorneys fighting these cases around the state who assisted in evaluating the constitutional and evidentiary issues presented by this new legislation, especially Kate Chatfield, for her direct assistance in helping me prepare to address our arguments on the constitutional claims to the original sentencing judge, Ret. Judge J. Richard Couzens, a legal scholar now who has written extensively on SB1437, and to my associate, Danielle Nygren, whose efforts in preparing pleadings and researching the evidentiary issues brought this moment to fruition.
Mark Berg was right all along. By living a clean life in prison, committing to his programming, and living with hope, Brian was released as a relatively young man with his whole life ahead of him. Second chances are a beautiful thing. And to echo the closing comments of Judge Couzens from our hearing, "I am very happy to have been a part of your re-sentencing."
