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Fixing California's Death Penalty Appeals

Following up on my post on the retirement of Cal. CJ Ronald George, here are some ideas for the next CJ (as well as the Associate Justices and the Judicial Council) to consider regarding fixing California's death penalty.

First, they can simply stop allowing the defense bar to drag out the record certification process and the briefing of capital appeals. Enforce the deadlines and stop giving so many extensions.  Effective representation does not require briefing every conceivable issue, Jones v. Barnes, 463 U. S. 745 (1983), and, no, death is not different in this respect.

Second, reduce the time limit for filing the habeas petition to one year from appointment instead of three. Congress thinks one year is enough. See 28 U.S.C. ยง2255(f). Virginia gives an even shorter time. Three years is preposterous.

Third, automatically refer every capital habeas case to the original trial judge with directions to expeditiously appoint counsel, complete discovery, conduct any necessary evidentiary hearing, and write a report with findings and recommendations, like the federal magistrate judges do.  It would be a lot easier to get the cases through federal habeas if we had written findings and opinions instead of Cal. Supreme's present "postcard denials."

Fourth, amend the rules on counsel qualifications to expand the pool of qualified attorneys. California's standards are among the most restrictive in the nation, and we are getting little in return for this unnecessary restrictiveness.

Fifth, require every attorney taking appointments in noncapital felony appeals who has the requisite experience to accept capital appointments as well. The appellate projects are so flush with attorneys wanting to do noncapital appeals that they are turning down applications from qualified attorneys in order to keep the ones on their present lists fully employed. Require taking capital cases as well as the price of admission to the club.

All of these measures can be taken by the judiciary alone. We at CJLF urge the Governor to appoint a new CJ with the courage and determination to make this system work.

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