In 1990, the voters of California passed Proposition 115, which among other things added a discovery chapter to the Penal Code, §§ 1054.1 et seq. (Most important criminal law is enacted by initiative in California, due to the permanent dysfunctionality of our Legislature.) Among the provisions of this law is: "This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant...." (Emphasis added.) The Legislature can amend the chapter, but only by a 2/3 vote.

What part of "only" did the solons not understand? They enacted a statute, Penal Code § 1054.9, giving new postconviction discovery rights to defendants sentenced to death or life without parole, and they passed it by less than a 2/3 vote. Although on its face the statute does not seem terribly burdensome, in practice it has been used in a much more aggressive manner.

In the case of Barnett v. Superior Court, the California Supreme Court was considering some issues related to the application of this statute, but CJLF asserted in an amicus brief that the whole statute was unconstitutional as an unauthorized legislative amendment of an initiative. (This theory was first advanced by the Contra Costa County District Attorney's Office.) Today the court issued this order:

The above-entitled matter is transferred to the Court of Appeal, Third Appellate District, with directions to establish a briefing schedule and then consider and decide the issues raised in the brief of amicus curiae, Criminal Justice Legal Foundation, filed November 5, 2007, and petitioner's answer to that brief, filed December 17, 2007. (Cal. Rules of Court, rule 8.528(d).) Kennard, J., was recused and did not participate.