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Burying the Courts in Paper

Part of the strategy against the death penalty is to bury the courts in reams of paper containing every conceivable claim, most of which are bull manure.  Today the Justices of the California Supreme Court said unanimously that they are mad as hell and not going to take it any more.  Well, not exactly in those words, but close.  "[I]t is the considered opinion of the court that we face an emergency situation in which the time and effort required to read and evaluate wholly meritless and abusive exhaustion petitions threatens to undermine the proper functioning of this court."  (In re Reno, S124660.)

Wait, don't the ABA Guidelines require that "Post-conviction counsel should seek to litigate all issues, whether or not previously presented, that are arguably meritorious under the standards applicable to high quality capital defense representation, including challenges to any overly restrictive procedural rules"?  Yes, but California's high court told the ABA it doesn't much care what they think, citing the U.S. Supreme Court opinion in Bobby v. Van Hook.  "Habeas corpus counsel, like appellate counsel, 'performs properly and competently when he or she exercises discretion and presents only the strongest claims instead of every conceivable claim.' "  The inner quote is from In re Robbins, which in turn relies on the U.S. Supreme Court opinions in Jones v. Barnes and Smith v. Murray.  See CJLF Brief, p. 9.

The court made some changes in the way all habeas petitions after the first will be handled.  The petitioner is strictly limited to 50 pages unless permission is granted to exceed that limit.  (Look for permission to be asked in every case.)  The reason(s) why the claim is not defaulted must be specified in the initial pleading; no waiting for later in the process.  Defense counsel are on notice that sanctions may be imposed for filing frivolous or abusive petitions.

A big part of the problem here is that capital appellate and habeas representation has become the domain of anti-death-penalty crusaders who do not want the system to work.  Recruitment of noncrusaders has been hampered by the admonitions from the ABA et al. that these massive briefs, the writing of which consumes one's whole practice for years, are ethically required.  Now that the court has clarified that they are ethically forbidden, perhaps we can broaden the pool.

The problems in California's death penalty are fixable.  If the Legislature won't act, many of the needed changes can be made judicially.  Today's decision is a step in the right direction.

Update (rev) (8/31):  Scott Graham has this article for The Recorder on law.com.  Reports of this important case are curiously absent from California's general-interest newspapers.


All the court needs to do after this is dismiss an appeal. Watch these guys scream bloody murder.

Here's an article from South Gate Patch:

LOS ANGELES (CNS) - The California Supreme Court today denied the latest appeal in the case of a man convicted of murdering three boys in Los Angeles County in the 1970s.

The state's highest court unanimously rejected a petition filed by attorneys for Harold Ray Memro, who legally changed his name to Reno while on death row in December 1994.

Memro was convicted of first-degree murder for the July 1976 slaying of 10-year-old Ralph Chavez Jr. and the October 1978 death of 7-year-old Carl Carter Jr., and second-degree murder for the July 1976 killing of 12-year-old Scott Fowler.

His initial conviction for the slayings was overturned by the California Supreme Court and he was retried and again sentenced to death in 1987.

Chavez and Fowler were found dead near a pond in John Anson Ford Park in Bell Gardens on July 26, 1975. The boys -- who had been fishing at the park -- had their throats slit.

Memro told police that he had gone to the park to take pictures of young boys and admitted slitting the boys' throats, according to a 1995 ruling from the California Supreme Court.

He also told police that he choked the 7-year-old boy -- who was the son of a family friend -- after the youth asked to leave Memro's apartment where he had hoped to take nude photos of him, according to the 1995 ruling.

Memro later claimed that his confession involving the 1975 killings was coerced by South Gate police.

In the latest ruling, Associate Justice Kathryn M. Werdegar wrote that there was ``strong, even overwhelming evidence he was guilty of killing three boys, that he forcibly sodomized one victim (possibly after he was dead) and that he represented a continuing threat to the safety of children in the neighborhood (inferable from the discovery by police that petitioner possessed hundreds of photographs of young children).''

The justices found that the 521-page petition filed by the defense in its latest appeal is ``an example of an abusive writ practice'' and ``is by no means an isolated phenomenon.''

``Some death row inmates with meritorious legal claims may languish in prison for years waiting for this court's review while we evaluate petitions raising dozens or even hundreds of frivolous and untimely claims,'' Werdegar wrote.

The California Supreme Court will allow an unlimited length for the first habeas corpus petition submitted on a death row inmate's behalf, but limit subsequent petitions to 50 pages, according to the ruling.


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