DECEMBER 24, 2007

Death-Penalty Dysfunction

By Michael C. McMahon

All now seem to agree that California's death-penalty system is broken and dysfunctional. The question has become, Can it be fixed, or should it be abandoned as a relic of a barbaric past? As New Jersey becomes the first state in 40 years to abolish the death penalty, California continues to rearrange the deck chairs on a sinking ship.

Just last month, the California Supreme Court recommended that the state constitution be amended to allow appeals from judgments of death to be transferred from the high court to the various courts of appeal. California Judicial Council News Release 76, Nov. 19, 2007. If two-thirds of the state legislators vote to do so, the legislative constitutional amendment will be placed on the November 2008 California General Election ballot. The proposed constitutional amendment would rewrite Section 12 of Article VI of the California Constitution.

Under this newest proposal, California's treatment of death-penalty appeals would more closely resemble the systems in Alabama and Tennessee. However, those states require a second appeal to the state Supreme Court. Under the California proposal, our Supreme Court could summarily affirm the decision of the Court of Appeal. The new system would be more efficient, but less cautious and careful, than the appellate process in those Southern states.

This change in appellate procedure may seem subtle. To the extent that it won't do much to solve the problems with California's death-penalty system, it is subtle. But it is also symbolic. By sending the appeals to California's highest court, California has acted as if the fair administration of the death penalty is important. Transferring those cases to the courts of appeal sends a very different message.

Our Supreme Court's recent handling of the Lockheed Litigation Cases, S132167 JCCP 2967 (Cal. Nov. 1, 2007), demonstrates the care shown to important matters. The Lockheed Litigation Cases involve mass toxic-tort litigation arising from injuries allegedly suffered by 640 plaintiffs following exposure to a variety of organic solvents. The prevailing parties on review before the Supreme Court included Exxon Mobil Corp., Union Oil Company of California, Chevron and Unocal.

Review was belatedly dismissed because a majority of the justices recused themselves due to conflicts of interest created by ownership of stock in one or more of the oil company defendants. In a less important case, Court of Appeal justices would have been appointed to fill the vacancies and determine the appeal.

However, in the Lockheed cases, the Supreme Court recognized that a decision by a panel comprising primarily designated justices from the Court of Appeal would never carry the same precedential value as a case decided by the Supreme Court justices. In that civil context, important cases deserve a decision from the Supreme Court's justices and no one else.

In the eyes of many, the same is true of a judgment of death.

The current proposal grows out of frustration with the sheer number of pending cases. Presently, 76 death appeals have been fully briefed and await oral argument. It is tempting to transfer them to a lower court. But whether you support or oppose capital punishment, there is much not to like with the court's newest proposal.

The proposal increases the risk that the innocent will be executed. By California law and tradition, appeals from judgments of death have been heard and determined by our state's highest court. Our state constitution requires it.
California voters elected to maintain that tradition as recently as 1984, when they passed Proposition 32, which specified that appeals involving judgments of death could not be transferred to the Court of Appeal. It makes sense. The 105 justices in our courts of appeal have no training or experience regarding death-penalty appeals, nor do the staff attorneys who work for those courts.

Allowing death-penalty appeals to be heard in those courts significantly increases the risk of inconsistency among California's six appellate districts and the risk of plain old judicial error. Practice before the 5th District in Fresno is very different from practice before the 2nd District in Ventura. Although uniformity of decision is a desirable goal, California's courts of appeal are so diverse and numerous that it is a difficult goal to accomplish and maintain.
The fact that the California Supreme Court can later review the Court of Appeal decisions adds another unpredictable layer of legal process. Any thoughtful and meaningful review of the transferred death cases will demonstrate that the original transfer to the Court of Appeal was merely a false economy. However, death-penalty lawyers fear that any re-review by the state Supreme Court will quickly become cursory and perfunctory. Perhaps they are cynical, but their cynicism may be rooted in a strong factual basis.

The proposal also ignores California's shortage of death-penalty lawyers. The state desperately needs to double or triple the number of qualified lawyers representing defendants on death row. The cases are complex, the pay is relatively low and few lawyers are willing to take on the burdens and stress associated with a client on death row.

Currently, 288 defendants on death row are awaiting the appointment of a lawyer who can assist them with the preparation and filing of a petition for habeas corpus review. Few of these cases present pure questions of law. Most tend to be fact-intensive and to require extensive forensic investigation, testing and interviews of witnesses. Potential death-appeal and habeas lawyers are fearful that they will work for years on the case and not be reimbursed adequately for their time and expenses. Not being paid quickly and adequately makes one cynical.

Finally, the proposal creates new costs, while the original costs of the death penalty remain unpaid.
The Sixth Amendment right to counsel includes the right to ancillary services that will assist counsel in preparing a defense. Tran v. Superior Court, 92 Cal.App.4th 1149 (2001). California's 1977 death-penalty law ensured that cash-starved counties could obtain reimbursement from the state for the reasonable costs of providing the defendant with "a complete and full defense." Penal Code Section 987.9.
This promise made us all feel better about the fairness of the death penalty, but California has refused to reimburse the counties for many years. As a result, the quality of death-penalty defense varies widely from case to case and county to county. This funding defect generates serious appellate issues that contribute to the backlog of cases awaiting review.

Lest there be any confusion, I don't think that California's death penalty does much to promote public safety. Enormous human and financial resources are diverted to a small number of cases. Those resources might be better spent elsewhere. The occasional random execution does not make me or my family feel any safer. Many talented prosecutors feel the same way. They enforce the death penalty because it is on the books. If it were abolished tomorrow, they would continue to show up and fight crime.

As long as there are capital cases, much could be done to achieve the false promise of Penal Code Section 987.9: "a complete and full defense" for every defendant. But if California continues to shortchange those it seeks to execute, many talented lawyers will prefer to work for the oil companies, whose cases are at least ensured careful treatment from California's highest court.

Michael C. McMahon is a California State Bar certified specialist in both criminal and appellate law. He serves as chief deputy public defender in Ventura County and has worked as a senior staff attorney for the Court of Appeal.