Transferring Appeals is Not The Answer
The Recorder
Commentary By Michael Ogul
January 4, 2008

California Supreme Court Chief Justice Ronald George has proposed transferring capital appeals from the Supreme Court to the courts of appeal in order to promote the “fair and reasonably prompt disposition of capital appeals.” He’ll be lobbying for the proposal when he appears before the California Commission on the Fair Administration of Justice next week.

The best way to do this, however, is not to push piles of work around, but to provide the funding necessary to make sure that condemned individuals receive effective assistance of counsel, and that defendants don’t have to wait years for lawyers to be appointed to represent them. Such funding is indispensable if we honestly want to prevent the execution of innocent people and provide fair representation to everyone on death row.

A major reason for the slow disposition of capital appeals ­ as recognized by Chief Justice George ­ is the delay in obtaining counsel. Presently, there are 90 condemned prisoners on California’s death row who do not have any attorney representing them in their automatic appeal.

Even more distressing is the fact that 288 (of the total 667 condemned individuals) have no attorney representing them in post-conviction proceedings on habeas corpus. On average, it takes about four years for a person on death row to have an attorney appointed to represent him before the appeals process can even begin.

Few qualified attorneys are willing to take these cases, and it’s not just because of the low pay. A fundamental problem is that the court does not compensate for all of the hours required by competent defense counsel to do their jobs. This problem is exacerbated in habeas corpus proceedings, where funding limits for investigative and expert expenses do not allow counsel to properly investigate the issues in an ordinary capital case, much less one that is complex.

As a practical matter, these funding caps do not apply to the fortunate condemned prisoners who are represented by one of the two state agencies that provide post-conviction counsel ­ the State Public Defender and the Habeas Corpus Resource Center ­ or to large civil firms willing to underwrite the hundreds of thousands of dollars necessary to investigate and litigate a case. Moreover, the cap doesn’t apply to the attorney general’s office, which represents the prosecution in every capital appeal and habeas proceeding.

Yet the great majority of condemned prisoners are hamstrung by funding caps. They’re eventually represented by court-appointed attorneys who are not paid for all the work that must be performed for clients to be treated as the law entitles them. That unfairness continues to deter qualified attorneys from working on capital appeals and habeas petitions.

The chief justice’s Nov. 19 press release announcing his let-the-appeal-courts-handle-it plan mentioned other, as yet unannounced “proposals to (1) modify and improve capital-related habeas corpus procedures and (2) increase the number of counsel qualified and willing to accept appointment in capital proceedings.” Those aims are admirable ­ so admirable in fact, that they need to be resolved before pushing for a transfer of capital appeals to the lower appellate courts.

A sentence of death is the most severe punishment that any court of law can ever impose. In very obvious terms, when a death sentence is affirmed on appeal and is carried out, the individual defendant is killed, right along with any possibility of future relief, no matter how compelling a demonstration of error or innocence might later come about. And wrongful execution is not a mere hypothetical.

In recent years, post-conviction DNA testing and other advances have revealed the innocence of 124 individuals on death rows across the nation. In hundreds of other cases nationwide, death sentences have been reversed due to serious constitutional errors that were recognized on direct appeal or in post-conviction habeas proceedings. These facts illustrate the undeniable need for critical evaluation of any death sentence, lest we suffer the execution of innocent people.

CALLED SUPREME FOR A REASON

The California Supreme Court, not the district courts of appeal, is the best tribunal for conducting this evaluation. The California Constitution requires that all death judgments be reviewed by the California Supreme Court. And every other state with the death penalty except Alabama also mandates this practice.

This requirement is needed for a very good reason. We trust our highest court to make the most important decisions, and none is more important than whether the state should execute an individual. In addition, review by our supreme court affords cases the added reliability of seven independent justices deciding a person’s fate instead of only three, which is the normal appellate-level treatment. A decision to affirm or reverse a death sentence should require the consensus of a greater number of jurists, not less.

Moreover, it’s important to recognize that each court of appeal district represents only a small portion of our state, and answers only to the voters in that district. No question, there are disparities in whether the same kinds of crimes will bring death sentences in different counties. A murder is likely to result in a death sentence in some counties, but not in others. Even among large counties, the fact is that some sentence defendants to death up to five times as often as other counties. And, according to a 2005 Santa Clara Law Review article, “death sentencing rates are lowest in counties with the highest non-white population.” Changing the California Constitution to make a district court of appeal the final arbiter of whether a defendant lives or dies ­ rather than the state supreme court, which answers to all voters ­ only exacerbates these geographic disparities.

FUNDING IS THE ANSWER

As it turns out, there’s another way to achieve the stated goal of “fair and reasonably prompt disposition of capital appeals,” and to avoid wrongful executions in the process: by providing proper funding and qualified counsel at the trial level.

When the legislature re-launched the death penalty in California in 1977, one of the conditions was that the state would be required to reimburse local governments for the cost of defense services under Penal Code §987.9. These costs cover things like work by co-counsel, investigation and expert witnesses ­ things that are fundamental to any fair evaluation of someone’s guilt, or of whether that person should be executed.

However, soon after Gov. George Deukmejian took office, reimbursement by the state was terminated, and it has never been restored. Thus, in virtually every California county, funding for the essential needs for fair representation is compromised by competing demands of local public defender offices or line items in county budgets. §987.9 funding must be restored in order to provide the basic tools for effective capital defense.

The restoration of trial court funding for capital cases ­ and the greater reliability that would result ­ would end up reducing the California Supreme Court’s caseload. It would mean fewer death verdicts at the trial court level, as well as fewer post-conviction claims of ineffective assistance of counsel. In essence, it would allow trial counsel to complete more of the investigation that all too often is left for post-conviction counsel to do years after the defendant has already been sentenced.

So instead of dropping death cases in the appeal courts’ laps, the state supreme court and our legislators should consider a far simpler, fairer ­ and in all likelihood cheaper ­ solution: providing adequate funding for the effective representation of capital defendants at all stages of their proceedings. That is the only way to prevent the execution of innocent people and provide fair representation to everyone on death row.

Michael Ogul is a criminal defense attorney who has been involved in death penalty litigation for more than 27 years. He is a consultant to the California Center for Judicial Education and Research’s “Death Penalty Benchguide,” and a member of the board of directors of the California Public Defenders Association.