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Does a California District Attorney Have Standing to Intervene in a Federal Habeas Corpus Case?

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If I were Attorney General of California, Judge Carney's decision in Jones v. Chappell, noted here, here, here, here, and here would have been greeted the same day by a fiery denunciation and a Churchillesque pledge to fight it wherever, whenever, and for as long as it takes.  Instead, we have who we have, and we hear [sound of crickets chirping].

The Attorney General is the chief law enforcement officer of the State of California and has a constitutional duty to see that its laws are enforced.  (Cal. Const. Art. V § 13.)  Until we hear otherwise, we should assume that Ms. Harris will do her duty and do everything in her power to have this clearly erroneous obstruction of the law overturned.  Purely hypothetically, though, I have been musing about the possibilities.  So let's take a little stroll down the "what if" road.

In California, can the District Attorney intervene in a federal habeas corpus collateral attack on a felony conviction and appeal a grant of relief if the Attorney General fails to?
Unlike the federal government, California and most (maybe all) states do not have a "unitary executive."  Instead, executive authority is divided among a variety of independently elected officials.  The President can fire any policy-making executive officer, including the United States Attorney General and United States Attorney, but the Governor cannot fire the California Attorney General or the county district attorneys.  They answer to the people.

Criminal cases are prosecuted in the name of the People of the State of California.  The District Attorney is the public prosecutor (Govt. Code § 26500) and therefore represents the People in the prosecution.  When the case goes up on appeal to the Court of Appeal or the Supreme Court, the Attorney General takes over and defends the judgment.  If the case returns to Superior Court, e.g., to set an execution date, the District Attorney represents the People again.

Sometimes in legal proceedings the person or entity named as the defendant is not the real party in interest.  For example, if a judge makes a ruling that is not immediately appealable, the losing party may ask a higher court to order the judge to rule differently (called a peremptory writ).  The case in the higher court is nominally Jones v. Superior Court, but the winning party in the trial court is the one who actually defends the judge's ruling and is called the "real party in interest."

Now to federal habeas corpus.  The case is nominally a civil suit by the prisoner against the warden for unlawful imprisonment, even though in reality it is an attack on the validity of the judgment in the criminal case.  The People of the State of California are not named as a party.  States generally can't be sued in federal court due to the Eleventh Amendment, and the lower federal courts have no jurisdiction to hear appeals, as such, in state criminal cases.

In the Jones case, BTW, Judge Carney issued an order purporting to vacate Jones's death sentence.  That is just one more of the many errors in this decision.  He has no authority to do that.  His only authority is to issue a "conditional writ of habeas corpus," ordering the warden to release Jones unless he is resentenced.  It also follows that the order in this case has no direct effect on any other murderer's case or sentence.

Now, the Attorney General is the civil attorney for state officers, so she represents the warden, the named party in a habeas action.  The warden may not actually care if a death sentence is overturned.  Jeanne Woodford was the nominal respondent in all capital cases while she was warden of the Big Q, and she was opposed to capital punishment the whole time.  Still is.

The real party in interest is the People of the State of California.  If the interest of the People in defending and enforcing their judgment in the criminal case is not being represented, can the District Attorney intervene on behalf of the People, as real party in interest, and take the appeal the Attorney General should take but will not?

I don't honestly know.  I hope we don't have to find out.

14 Comments

Kent,

Do you know if Ms. Harris has been asked by anyone in the press if she is going to appeal?

I guess one further thought is that the district attorney who convicted the defendant and obtained the death sentence probably would have standing under traditional standing doctrine, to wit, that he be a party directly and substantially affected by the judgment below.

AP reports: "I honestly don't know," she said.

Because it's a difficult decision? Because it's a matter less important than whatever else she has been working on? No and no.

But the District Attorney is not party to the criminal case. He is an attorney, representing his client, the People of the State of California.

It's complicated.

Or she. This is an L.A. case.

Kent, I'm not endorsing this decision, just pointing it out as I've been through this fight before: Saldano v. Cockrell, 267 F.Supp.2d 635 (E.D. Tex. 2003). It did not end well for the DA.

Thanks, Ed, that's very interesting. As noted in the OP, I hope we don't have to find out.

AG Harris successfully defends death sentence against Lackey claim. (People v. Vines (2011) 51 Cal.4th 830, 892). But refuses to appeal Carney's decision declaring California's DP unconstitutional based upon Lackey claim. Doesn't seem consistent to me, unless Carney's decision was based upon something other than Lackey -- something other than what AG Harris had previously argued to the California Supreme Court is irrelevant to the constututionality of California's DP.

I still believe that AG Harris, despite her personal preference, has no choice but to appeal Carney's decision and, in the end, will do so.

As to Kent's comment on DA standing, I don't believe LA DA Lacey can appeal Carney's decision, if AG Harris refuses to do so. On that point, I wonder if AG Harris will consult with DA Lacey on the issue before making her decision whether or not to appeal. One would hope that she would. Just as one one hope that she would afford serious weight to opinion of the victim's survivors on the issue.

It's true that the DA is not a party. But the people the DA represents are -- indeed, they were the only governmental party when the death sentence was imposed, since the DA for Los Angles had no portfolio to represent the people of the state of California. If the DA can seek and obtain the death sentence, mustn't he/she have standing to defend the judgment he/she won?

I agree it's complicated. And certainly you know more about California law than I. But I would note that the Ninth Circuit explicitly took a broad view of standing when it allowed the proponents of Prop 8 to defend it on appeal even though the state of California refused to do so.

If mere private interest groups have standing to defend state law in the Ninth Circuit, I have to think a duly elected DA in the local jurisdiction where state law was applied has standing a fortiori.

Take a look at Dorsey v. Banks, 749 F.Supp.2d 715 (2010). But note the fact that in that case the Attorney General "vigorously defended" the case from the outset and objected to the magistrate's R&R on the same grounds as the County Prosecutor. (page 719).

"But I would note that the Ninth Circuit explicitly took a broad view of standing when it allowed the proponents of Prop 8 to defend it on appeal ..."

Yes, but there is a small problem citing that decision in a brief. The Supreme Court reversed on that very point.

Then if nothing else good comes of this, it can be one case in which CA9 follows SCOTUS law.

Let me ask this: Can't SCOTUS grant cert directly to the judgment of the district court? Didn't it do that in Mistretta? Suppose it just issued a writ of cert right now, sua sponte if it needs to, and if Ms. Harris does not care to defend California's death penalty, the Court could appoint someone, just as it appointed Paul Cassell to defend Section 3501 when DOJ refused to do so?

Indeed, maybe it could appoint you and Paul Clement. I can't imagine a better combination.

Yes, all this would be highly unusual, but the Court has power to do everything I'm suggesting, and this is an extraordinary case to say the least, and an important one for the single most contentious issue in American criminal punishment.

If the LA DA appealed Carney's decision wouldn't (or shouldn't) the Ninth Circuit do what it did in the Prop. 8 case: Request that the California Supreme Court answer the question of whether, under California law, the DA is permitted to be heard/appeal a court's decision in a habeas case when the state's officials responsible for representing the respondent state agency refuses to do so?

Penal Code 1506 (relating to state habeas proceedings) appears to grant this right.

And in cases where the People (as opposed to the Director of Corrections) are the real party in interest, it appears as though the DA has the right to be heard on appeal. (In re Sassounian (1995) 9 Cal.4th 535. But note: Defendant not sentenced to death.)

As the Supreme Court's decision in the Prop. 8 case makes clear, however, California law can't determine the standing question in federal court. But wouldn't (shoudn't) California law at least be relevant to the question of whether or not the DA, as the real party in interest, should be permitted to intervene as a party, or at least have the right to be heard/appeal, when a federal court grants a defendant's habeas petition?

As Kent states, this is complex. In any event it points out that the law needs to be amended so that under these circumstances (i.e., assuming AG Harris refuses to appeal Carney's decision) the DA should be permitted to appeal.

Indeed, I don't see any good reason why the DA who secured the death verdict shouldn't be the primary party defending that verdict if it is attacked in a federal court habeas proceeding. The prosecutor has this responsibility/right in the federal system (i.e., the US Attorney who secured the conviction handles the appeal and any collateral proceedings) and in many states, New York for example.

I could never understand why California cuts the DA out of the equation after a conviction is obtained, and replaces him/her with an entity that has a far more attenuated interest in defending the verdict.

A case has to be "in the court[] of appeals" before the Supreme Court can grant a writ of certiorari under 28 U.S.C. § 1254. In most cases, the case is "in" that court after filing of a notice of appeal.

The high court is authorized to grant the writ "before or after rendition of judgment" for federal court of appeals cases but it very rarely does so before. Mistretta was very much an exception.

The only cases that go straight from federal district court to the Supreme Court are the cases for which a three-judge district court are required: reapportionment, prisoner release orders, and a few others.

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