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Capital Cases and the California Courts of Appeal

As noted previously on this blog, an initiative to fix California's death penalty is now circulating.  The initiative has been carefully drafted so that few solid arguments can be made against it from either a policy or a constitutional perspective.  The opposition will be from people who do not want the death penalty to work so that they can claim its "broken" status as a reason to repeal it.  That ulterior motive should be transparent to the voters, who overwhelmingly favor mending it over ending it.

So I've been curious to see what arguments the opponents would come up with.  We are now seeing them trickle out.  One bogus argument being floated is that the initiative would overwhelm California's intermediate appellate courts, the courts of appeal.
In most states there are two levels of appellate courts for felony cases. Every convicted felony defendant gets an appeal as of right to an intermediate appellate court, typically decided by a three-judge panel.  Then, the state's highest court can review the case if it chooses, but it only reviews a small fraction of the cases, generally those presenting questions of law on which the lower courts have divided.

A few small states have no intermediate level.  All felony cases go to the state's high court.  Texas and Oklahoma have two-headed court systems.  After the intermediate appellate court, civil cases go to the Supreme Court and criminal cases go to the Court of Criminal Appeals.

In most states, but not the federal system, all capital cases bypass the intermediate level and go directly to the highest court of criminal jurisdiction.  That works okay in smaller states with few capital cases.  It's not too bad in Texas, where the highest criminal court does only criminal cases and has no civil workload.  In larger states with a single high court it can be a problem, and the problem is particularly acute in the largest state, California.

Consider, for example, the case of Daniel Frederickson, sentenced to death in Orange County in 1998.  First, the Supreme Court allowed appointment of counsel, certification of the record, and briefing to drag on for 13 years.  That extended delay is quite unnecessary, but it is a topic for another post.  Briefing was completed on March 8, 2011.  Nothing has happened since.  Why not?  Of course capital cases are complex, but they don't take three years to decide.  There is no case that cannot be decided within a year of the completion of briefing.

The California Supreme Court is simply overloaded.  As of March 4, 2014, according to the Department of Corrections and Rehabilitation, there are 752 death sentences among 746 inmates on death row.  (Some have more than one.)  Of these, 293 have been affirmed on direct appeal, and 11 have been reversed and are awaiting retrial.  That leaves a backlog of 448 sentences to review, too much for seven justices, even with a large staff.

The cases really are not that difficult relative to other murder cases.  The guilt-phase issues are not much different from a noncapital murder case.  The penalty-phase issues are governed by a large, established body of caselaw from the state and federal high courts, leaving no major questions of law to resolve.  It's pretty much applying established law to particular facts, which is what the courts of appeal do day in and day out.  The records and briefs are larger than noncapital first-degree murder cases because there are two phases of the trial, but they are not really more difficult otherwise.

How much of an increase in workload would it be for the intermediate courts of appeal to decide these cases in the first instance?  The Judicial Council's annual report looks at workloads in terms of pending appeals per authorized justice and filings and dispositions per year per authorized justice.  (See Judicial Council of California, 2013 Court Statistics Report, pp. 21-22.)  Statewide, there were 15,531 appeals disposed of in Fiscal Year 2011-12 and 13,051 appeals pending at the end of the fiscal year.  There are 105 authorized justices.  These are the most recent figures available.

Adding 448 cases to the backlog adds 4 cases per justice to the existing 124 cases per justice.  That is an increase of only about 3% in the number of cases.  Even allowing that capital cases have more issues per case than a typical appeal, this is still a backlog that can be disposed of in a few years.  Sitting in three-judge panels, the backlog will require that each justice sit on about 12 cases and write about 4 majority opinions on average.  That is hardly a crushing burden.  To further reduce the workload, the court could issue a "per curiam" memorandum, written by the staff, disposing of claims that are clearly meritless under established law, which is generally most of them.  A signed opinion could then address the issues with some substance, typically a small number.

California has been running around 20 incoming capital appeals a year.  Once the backlog is cleared, a justice will only have to write a majority opinion once every five years and only sit on a panel about once every other year.  This is a minimal increase in workload.

The Supreme Court's workload will be vastly reduced.  Given the importance of capital cases, they will still have a special place at the Supreme Court.  The high court will have to review the result, but not every nuance of the opinion, in every case.  In nearly all cases, this should end with a one-line summary affirmance, just as the U.S. Supreme Court did in the days when its mandatory appellate docket was much larger than it is today.

It is perfectly obvious that taking the workload presently assigned to 7 people and spreading it among 105 is a far more efficient way to deal with a group of cases that today consists mostly of routine and frequently frivolous claims.  This change will, along with the other reforms, make the system work.  That is exactly why the opponents oppose it.



Wouldn't particular courts of appeal, for example the Fourth District, Division Two, get hit harder by the increased caseload, depending upon how often the DA in the county (or counties) within their appellate jurisdiction seek (and obtain) capital punishment?

Riverside County I believe has the highest per capita capital case prosecution rate in California. Under the proposed initiative, would all of these successful prosecutions fall into the laps of the Fourth District, Division Two. Or would they be able to be transferred to other DCAs to spread out the increased workload?

New cases coming in would be appealed to the courts of appeal in their geographic jurisdiction. That would be uneven, as you suggest, but the load is not large as a portion of the court's total load.

The backlog consists of cases already automatically appealed to the Supreme Court. The initiative gives that court authority to transfer the cases to the courts of appeal, as it presently has for noncapital cases. The court need not transfer them strictly geographically but could spread the load around.

Perhaps one way to get extra manpower on the appellate judge level is to have a system for superior court judges (and or retired appellate judges on "senior status") to sit by designation to get more cases heard quicker.

I'm sure most capital cases are complex but are they any more complex than "complicated" civil matters like class actions, large construction defect matter and/or unfair competition. I tend to think not and those do not usually take 3 years to get heard an the intermediate level.

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