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).