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SF Chron Has Dismal Story on Prop 34

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Bob Egelko has this story in the San Francisco Chronicle on California's death penalty repeal initiative.  What's wrong with the story?  The hardest part of writing this post was deciding where to begin.

Let's start with the description of the federal lethal injection litigation.  "Since the injunction [in 2006], state officials have appealed every order by federal and state judges...."  The implication is that the state has been fighting hard to carry out the death penalty, and inherent delays have prevented it.  There is just one problem.

The statement that the state has appealed every order of federal judges is a patent falsehood.

Judge Fogel's "conditional denial" of a preliminary injunction was appealed by Morales, not the state.  When it ripened into a grant, the state did not appeal.  In 2010, after the Supreme Court had decided Baze v. Rees and after the CDCR had promulgated the protocol as a regulation under the Administrative Procedure Act, murderer Albert Greenwood Brown intervened and got an injunction that permitted the state to proceed only by modifying its protocol to a single drug.  That order was appealed by Brown, not the state.  On remand from the Ninth Circuit, Judge Fogel issued an unconditional stay, and the state did not appeal.  On December 10, 2010, Judge Fogel denied the state's motion to dismiss, and the state did not appeal.  On January 19, 2011, murderers Mitchell Sims and Stevie Fields intervened and got a stay, and the state did not appeal.  Three weeks later, the Ninth Circuit rejected a challenge to Arizona's substantially equal three-drug protocol, and the state did nothing.

How many orders by federal judges has the state actually appealed in this matter?  Zero.  I have uploaded the docket.  Read it for yourself.  There are two notices of appeal, both by inmates.  Although this is not the most important point in the story, it is the one with the clearest and most objective true and false.  The statement is just flat false, and it is very easy to check.
As for the state litigation over the Administrative Procedure Act, the state did appeal both orders of the superior court (with the second appeal now pending), but the implication that the state has vigorously fought the litigation is misleading.  The state did not seek Supreme Court review in the first case, holding execution protocols subject to the Administrative Procedure Act.  That state did not oppose the wording of the superior court's injunction in the second case.  If taken literally, that injunction would preclude invocation of any of the exceptions to the APA, with no basis whatever in law for such a preclusion.  The state then invoked this injunction in other court proceedings (by CJLF and the LA DA) attempting to force a resumption of executions.  If the Brown Administration has not exactly "taken a dive" in this litigation, it has at least taken unnecessary punches and failed to punch back with anything like the vigor needed.  You would never know that from reading the Chronicle story but would instead get the opposite impression.

More subjective is the discussion of the No on 34 campaign's position that the people now claiming that the system is dysfunctional are the ones who made it so, specifically naming the ACLU.  "'The system is broken because they broke it,' Anne Marie Schubert, a Sacramento County deputy district attorney, recently told The Chronicle's editorial board."

The story says, "Those arguments rest on shaky ground - the ACLU doesn't represent death penalty defendants, the 'endless delays' are mostly built into the system or attributable to court rulings and the state's struggles to comply with them...." 

The argument that death penalty opponents are largely responsible for the delays is not at all shaky.  While it is true that the ACLU no longer takes on representation directly -- our taxpayer dollars now needlessly fund representation on multiple habeas petitions in cases with no claim of innocence -- that organization has been very much involved in the campaign of obstruction over the years.  For example, in 2006 when Senator Morrow introduced a bill to reform state habeas procedures (which would have saved money in addition to reducing delays), the ACLU opposed it.  The bill was killed in committee, as all the bills that would have reduced delay and expense have been killed.

More broadly, it is beyond reasonable dispute that the capital defense bar generally has been engaged in a campaign of obstruction.  On August 30, in its unanimous opinion in In re Reno, the California Supreme Court confirmed what everyone involved has long known.  The capital defense bar is regularly engaged in filing phonebook-sized briefs full of claims that are obviously meritless.  See prior post. The blame for this is shared by the Legislature and the Supreme Court itself for putting up with it until now, but to absolve the defense bar is to blind oneself to reality.  And of course the anti-death-penalty bar is very much behind Proposition 34.  The head of the ACLU's anti-death-penalty efforts is the campaign manager.

Far from "shaky," the argument is sound.

How about the execution protocol problem?  Could that be resolved with a single-drug protocol and executions resumed in short order?  The answer is an unambiguous "no" if you believe the article.  "But nothing will happen quickly - new execution procedures would require another round of public hearings, then approval by state and federal judges."  But the California Penal Code expressly authorizes adoption of a regulation on a temporary basis to meet CDCR's "operational needs," and executions could be resumed while CDCR goes about the long permanent regulation process.  Anyone who has followed the litigation knows that, but the article says matter-of-factly that it can't be done quickly.  That is, at best, reporting one side's position as fact without mentioning the other side's. 

"In fact, according to the available studies - conducted by independent authors, and cited by Prop. 34's supporters - even a modest streamlining of California's death penalty process will take time and money."

Oh, it's a fact that streamlining will cost money rather than save money?  Apparently "independent authors" is intended to refer to Alarcon and Mitchell, but "independent" does not mean unbiased.  As we are showing in our posts on A&M's articles, and as has been pointed out throughout this debate, these articles skew every debatable inference in favor of racking up a large bill for what we have already spent and what reform would require.

And what about John Burton's stacked, deeply divided commission?  "More broadly, a state commission headed by former Attorney General John Van de Kamp and including prosecutors and defense lawyers, said in 2008 that California could reduce its Death Row waiting period to the national average, then 12 years, at a cost of $95 million a year."  No mention of the fact that the commission was deeply divided.  No mention of the fact that the commission chose one of the most strident anti-death-penalty partisans in the state as its director, and the report is largely his work.  No mention of the fact that all but one of the prosecutors and victim advocates on the commission refused to join that report.  No mention of the fact that the report was so badly biased even Jerry Brown wouldn't join it.  Nope, reading the article one would think that this report was the consensus result of a fair process, the exact opposite of the truth.

Opponents of the initiative point out that other states, notably Virginia, get their cases done in far less time than California.  To attack this position, the article says, "As Alarcon points out, however, Virginia, Florida and Texas, three of the nation's swiftest-executing states, are also among the leaders in cases of Death Row inmates cleared by DNA evidence while awaiting execution."

But that is not true.  Texas is not all that swift and is not a state we cite.  As for Virginia, take a look at the DPIC's database of "innocence" cases.  There is a grand total of one case from Virginia, even with DPIC's notoriously loose standards for "innocence."  The "leader" statement, as applied to the state that is our primary example, is false.

And finally, the article ends with the ACLU statement.

"You can have a fast death penalty system but not one that's also cheap and high quality," she said. "You have to spend a lot of money, and if it's fast, you (still) lose out on justice. You're going to execute innocent people."

Baloney.  Most of the delay and much of the cost of the present system is spent litigating issues that have nothing whatever to do with whether we have the right guy.  We could keep every bit of the present review of such issues, which only come up in a small fraction of cases, and eliminate large amounts of the delay and expense.

But you won't learn that reading this article.

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