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The Errors of Alarcon & Mitchell, Part 1 -- Murtishaw

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As explained in the intro post, this is a first in a series of posts examining errors in the Alarcon and Mitchell (A&M) articles in Loyola LA Law Review on the California death penalty.

I will begin with A&M's use of the case of David Murtishaw, who died of a heart attack 32 years after he was first sentenced to death.  A&M claim that this is an example of the wasteful system.  Actually, this case is an example of courts wrongly overturning valid judgments.  Further, the case illustrates how changes subsequently made would have prevented what happened in that case.

A&M do not even mention what Murtishaw did.  Writers whose goal is to convince readers of an anti-death-penalty position generally omit or soft-pedal the facts of the crime.  Given that the bottom line here is justice, however, the facts are essential, and we should always begin with the crime.

Defendant and his brother-in-law went shooting in the desert.  They came across four USC students shooting a film for a cinema class.  Murtishaw shot them all.  Two died at the scene.  One died two days later.  The fourth survived and testified.  There is no doubt whatever in this case that Murtishaw callously murdered three people.  This is an exemplar of the kind of crime that warrants the death penalty.
The appeal from the conviction and sentence of death was heard by the notoriously anti-death-penalty California Supreme Court during the Rose Bird era.  See People v. Murtishaw, 29 Cal.3d 733 (1981).  That court rejected all of Murtishaw's claims but one -- his objection to a brief statement of an expert opining that Murtishaw would continue to be dangerous in prison.

The California death penalty law was still new at the time of the trial.  The Legislature passed a new statute, over Jerry Brown's veto, following the U.S. Supreme Court decisions in Gregg v. Georgia, 428 U.S. 153 (1976), and its companion cases.  In Gregg, the high court praised Georgia's decision to allow wide-open evidence and argument in the penalty phase.  See pp. 203-204.  In the companion case of Jurek v. Texas, 428 U.S. 262 (1976), the high court specifically approved predictions of future dangerousness as a valid factor to be considered.  See pp. 274-275.  With these decisions in mind, the drafters of California's law authorized evidence "as to any matter relevant to aggravation, mitigation, and sentence...."

Nonetheless, the California Supreme Court majority declared the admission of this evidence to be reversible error.  They didn't like it and thought expert predictions of dangerousness were not reliable enough to be admitted as evidence.  As a matter of policy, I would prefer excluding such predictions on both sides also, but policy preferences were not the issue.  Certainly such predictions are not so unreliable as to be categorically excluded from court proceedings.  We use them all the time in mental commitment proceedings.  The Constitution allows them.  The statute authorized them.  The Bird Court simply saw an excuse to overturn a thoroughly justified death sentence and seized on it.  Justice Frank Richardson explained the errors of the majority in his dissent, 29 Cal. 3d at pp. 775-780.

Five years later, the people of California denied retention to three of the justices who joined this opinion, and rightly so.  Since then, our state supreme court has reversed only the small fraction of capital judgments that should be reversed and correctly affirmed the vast majority.  The problem that caused the first erroneous reversal in this case has been corrected.

Murtishaw had a second sentencing hearing and, not surprisingly, was again sentenced to death.  At the 1983 hearing, the trial judge mistakenly gave the jury an instruction that reflected the November 1978 death penalty law, rather than the 1977 law in effect when Murtishaw committed the murders in April 1978.  The 1977 law says the jury will be guided by the aggravating and mitigating factors and decide the appropriate punishment of death or life in prison.  The 1978 law says the jury will weigh the aggravating against mitigating factors and return a death sentence if the aggravating outweighs the mitigating.

That instruction was, of course, an error of state law.  In practice, though, there is little difference in these two verbal formulations.  The "weighing" is so inherently subjective that there is no constraint preventing the jury from imposing the sentence they think is just.  The notion that twelve people would unanimously sentence a defendant to death when they did not think that was the appropriate sentence, merely because they had been instructed to "weigh" rather than decide what is "appropriate," is far-fetched, to put it mildly.  There is no indication in the opinions in this case that the defense attorney objected to the instruction or that anyone involved in the trial thought there was a problem.

But the California Supreme Court, in its 1989 decision on appeal from the resentencing, did not rest on generalizations alone. See People v. Murtishaw, 48 Cal.3d 1001 (1989). The state high court examined the instruction in the context of the evidence and arguments to determine how the jury would have understood their responsibilities, a method the United States Supreme Court endorsed the next year in Boyde v. California, 494 U.S. 370 (1990).  Under a constitutional requirement not to reverse judgments unless a miscarriage of justice would occur, the state high court affirmed the sentence.

Murtishaw filed a federal habeas corpus petition.  The federal district judge found no ground for relief and denied the petition.

On appeal from that decision, the Ninth Circuit found most of Murtishaw's claims meritless in Murtishaw v. Woodford, 255 F.3d 926 (2001).  However, the court overturned the death sentence, finding that the instruction violated the Ex Post Facto Clause of the United States Constitution, a provision limiting the ability of legislatures to make changes in criminal law retroactive to earlier crimes.

But the Ex Post Facto Clause does not prevent all changes in the law from applying to trials for earlier crimes.  In Collins v. Youngblood, 497 U.S. 37 (1990), the U.S. Supreme Court held that this clause restricts only four specific types of changes: making an act criminal that previously was not, making a crime one of greater degree than previously, increasing the punishment for a crime, or permitting conviction on less evidence than previously.

How about the particular change at issue in the Murtishaw case, changing the manner in which the sentencer determines whether a murderer should be sentenced to death, with an "outweigh" criterion in place of a previous open-ended statute?  We don't have to guess.  We know.  The United States Supreme Court expressly decided this precise point 24 years before the Ninth Circuit's decision in Murtishaw.

In Dobbert v. Florida, 432 U.S. 282 (1977), the high court considered an Ex Post Facto challenge to the application of Florida's then-new death penalty law to a prior murder.  The earlier law had an open-ended provision for the jury to recommend mercy.  The new law added a requirement of aggravating circumstances and a weighing process.  The court held this was not an Ex Post Facto Clause violation for two reasons.  First, the changes were ameliorative, favorable to the defendant overall.  Second, the changes were procedural, not subject to the Ex Post Facto Clause at all.  The court expressly held that these reasons were independent, and it would have rejected the claim on the ground the changes were procedural even if they had not been ameliorative.  See footnote 6.

How can Murtishaw's claim be distinguished from the "procedural" holding of Dobbert?  It can't.  The high court precedent is smack on point.  What does the Ninth Circuit's opinion say about this point of Dobbert?  Absolutely nothing.  The only mention of Dobbert in the entire opinion is a parenthetical noting that another Ninth Circuit opinion cited Dobbert for another point.

The Ninth Circuit was wrong in Murtishaw.  Ruling to the contrary without any discussion of Dobbert was judicial malpractice.  Why didn't the U.S. Supreme Court take the case up?  The Supreme Court only takes, and only can take, about one or two percent of the cases it is asked to take.  It regularly turns down, even if wrongly decided, cases with quirky facts unlikely to be repeated, choosing instead to take up cases that decide broad questions of law affecting many cases nationwide.  In Supreme Court practitioner parlance, the Murtishaw case was "not certworthy."

Ninth Circuit decisions wrongly overturning correct capital judgments were nothing new in 2001.  In a study I did in 1995, I found that when the Ninth Circuit and a state high court disagreed on a question of law governing capital cases and the issue was subsequently resolved by the U.S. Supreme Court, the state court was right and the Ninth was wrong the vast majority of the time (with "right" operationally defined as the U.S. Supreme Court's answer to the question).

By 1996, Congress was fed up and sharply limited the power of the lower federal courts to overturn state court judgments simply because they disagreed with them.  In the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), it enacted 28 U.S.C. §2254(d).  That law says that the lower federal courts can overturn state court decisions only if they are contrary to or an unreasonable application of clearly established federal law as defined in Supreme Court precedent, not the circuit's idiosyncratic views.  However, Congress neglected to make this change retroactive, so the Ninth continued to wrongly overturn California cases that were already in the pipeline when the law was enacted, including Murtishaw

It is unlikely that the Ninth Circuit would get away with such an error today.  The pre-AEDPA cases are nearly all through the pipeline.  Because the errors are so much more clear when viewed through the §2254(d) standard, the Supreme Court is more comfortable reversing them on a summary basis, which it has done many times since cases subject to AEDPA started coming through.

Alarcon and Mitchell fail to recognize that the reversals in Murtishaw were wrong, and they fail to recognize that the problems that caused the wrong reversals have been fixed.  As a result, they draw the wrong conclusions from this case.  They make a "straw man fallacy" argument, saying that Murtishaw's appeals were not frivolous.  Nobody said the appeals in this case were frivolous.  There are indeed cases that are delayed for years with frivolous appeals, see, e.g., In re Reno, 55 Cal.4th 428 (2012), but the problem in this case was erroneous reversals and unnecessary retrials.

A&M cite this case, along with two others, as an example "of some of the most serious flaws in California's death-penalty system, of why the appeals process takes so long, and of what those long delays cost in terms of taxpayer dollars and in compromising the integrity of our criminal justice system."  But because they misdiagnose what went wrong in the case, they miss the point across the board.

The Murtishaw case took too long and ended in a miscarriage of justice because the California Supreme Court, before 1987, looked for any excuse to overturn death judgments and because the Ninth Circuit, with the power of de novo review in cases filed in federal court before April 26, 1996, did the same.  The California Supreme Court no longer does so, and the Ninth Circuit no longer has the power of de novo review.  If the reforms in place today had been in place then, Murtishaw would very likely have been executed on the judgment from his first trial, only a few years after judgment, and at far less cost to the taxpayers.

Instead of being an example of what is presently wrong with the system, Murtishaw is an example of why we can expect cases to move through the system more quickly in the coming years.  It stands for exactly the opposite of what A&M cite it for.

1 Comment

What a post!

It would be nice if Judge Alarcon or his ex-clerk had the courage to debate you on these issues.

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