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The Four Trials of Capital Cases

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The California Court of Appeal for the Third District, which rarely gets involved in capital cases, has issued a long opinion on discovery in the case of Barnett v. Superior Court, C051311. (Hat tip: Ward.) The most interesting part for people outside California is Justice Sims' concurring opinion with his commentary on the state of capital litigation today. An excerpt follows:

The typical modern death penalty case usually involves four trials.
The first trial determines whether the defendant is guilty of the offense. If the jury finds him guilty with special circumstances, the second trial determines the penalty: death or life without possibility of parole.
The third trial is the trial of the jurors who arrived at the decisions in the first two trials. The third trial is usually initiated by an investigator for the defendant, who locates trial jurors and gets one or more of them to supply an affidavit detailing what went on in the jury room. Then, the third trial examines the jurors’ deliberations in minute detail in order to make sure that the jurors have not engaged in any “misconduct,” such as telling other jurors about their own personal experiences in life. (See e.g., People v. Schmeck (2005) 37 Cal.4th 240, 292-294; People v. San Nicolas (2004) 34 Cal.4th 614, 643, 651.)
If the conviction and death penalty survive the third trial, the groundwork has been laid for the fourth trial, which is the trial of the attorneys (both prosecutor and defense counsel) who participated in the original trial. This fourth trial ordinarily arises in habeas corpus proceedings. The Legislature has seen fit to aid everybody in this fourth trial with the enactment of section 1054.9, which, as Justice Robie’s opinion spells out, allows a defendant to "discover,” among other things, every scrap of paper currently possessed by the prosecution or law enforcement that was prepared by any law enforcement agency that had anything to do with any witness. In this trial, appellate attorneys spend hours in the quiet of their offices composing attacks on the decisions of trial counsel made instantly in the heat and crush of trial.

For those who like to keep track of such things, Justice Sims was appointed in 1982 by then-Gov., now Mayor, and soon-to-be AG Jerry Brown (D).

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This opinion did attract some attention from a leading legal journal:

3rd District Justice Decries Delays in Executions

By Laura Ernde
Daily Journal Staff Writer

A state appellate justice on Tuesday denounced what he called an "emasculated" death-penalty system that allows decades to elapse before murderers are executed.
"This is in absolute and complete derogation of the will of the voters of California who have repeatedly approved the death penalty in initiatives since 1978," wrote Justice Richard M. Sims III of the 3rd District Court of Appeal.
Sims made his strongly worded point in a concurring opinion to a decision clarifying defendants' post-conviction discovery rights. Barnett v. Superior Court of Butte County, C051311 (Cal. App. 3rd Dist. 2006).
A 2003 state law gave defendants who are sentenced to death or life in prison without parole the right to request documents to be used for a habeas petition.
Sims complained that the law, Penal Code Section 1054.9, will further drag out death-penalty appeals, providing "yet another excuse for a defendant to litigate, and litigate, and litigate."
Sims went into the details of Barnett's long criminal history of robbery and rape that culminated with the July 1986 torture and murder of Richard Eggett.
"If the day ever comes when we have afforded perfect due process to this model citizen, Lee Max Barnett, and he is executed," Sims wrote, "few will remember the circumstances of his crimes, which involve the torture and stabbing to death of Richard Eggett."
"It is very rare to see a sitting justice write something that strong in tone," said Shaun P. Martin, a criminal law professor at the University of San Diego School of Law.
Martin said Sims was reflecting a common sentiment among many people that death-penalty appeals take far too long to process.
But Martin said there's a reason for the intensive procedures, which is to make sure that no mistakes were made, particularly in death-penalty cases.
"Death is different. You can't take it back," he said.
Sims, 63, is a former superior court judge and attorney in private practice. He got his law degree from Harvard, where he was president of his class. He was appointed to the appellate bench by Gov. Edmund G. "Jerry" Brown in 1982.
Lynne S. Coffin, former president of California Attorneys for Criminal Justice, said she was surprised to see a judge volunteer his opinion on an existing law.
Although California recently gave capital defendants the opportunity to request documents before filing a habeas petition, it's a long-standing tradition in other states, she said.
The seminal decision on interpreting the law came from the California Supreme Court in 2004. In re Steele, 32 Cal.4th 682.
But the 3rd District in Barnett, along with two published opinions it issued last week, attempted to address a few outstanding issues. Those cases are People v. Superior Court of Shasta County (Maury), C051946, and Kennedy v. Superior Court of Colusa County, C052243.
Deputy Attorney General Eric Christoffersen said he was pleased with the Barnett decision because it rejected most of the defendant's requests for information.
The fact that it took Justice Ronald B. Robie 109 pages to explain the court's decision shows the vast amount of information Barnett was seeking through the discovery process 20 years after his trial, Christoffersen said.
"It's a good example of the intense litigation that goes on in capital cases," he said.

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