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Time to Appeal Jones v. Chappell, Ms. Harris

Today in Los Angeles, Judge Cormac Carney entered final judgment on Claim 27 of Jones v. Chappell, his absurd decision that delay in the review of capital cases is a reason to change a death sentence to life imprisonment.

Federal Rule of Civil Procedure 54(b) permits a judge to enter final judgment on one claim while other claims remain pending "if the court expressly determines that there is no just reason for delay," which this judgment does.

This final judgment is appealable under 28 U.S.C. ยง 1291.  See, e.g., Brown v. Eli Lilly & Co., 654 F.3d 347 (CA2 2011).  A notice of appeal must be filed within 30 days.

There is no reason not to appeal this decision.  There is no excuse not to.


California's Attorney General Kamala Harris was always anti-Prop. 8/pro-same sex marriage. Thus, she never defended Prop. 8 in federal court nor sought to appeal Judge Walker's decision striking down Prop. 8 as unconstitutional.

Harris is also a long-time stringent anti-DP advocate. Thus, one might question whether she will appeal Judge Carney's decision. And, if she does appeal, how vigorously she will defend California's DP.

I don't see how Harris can avoid appealing Carney's decision. But I wouldn't be surprised if she came up with some lame excuse not to appeal. I'm sure that she will be consulting with Gov. Brown on the tact they will take.

In any event, any appeal she files, regardless of how weakly worded, would open the door to Kent's powerful amicus brief. But, as the Prop. 8 litigation makes clear, he needs her to open the door.

Under California law, could the murder victims' survivors file an appeal if the Attorey General declines to do so.

I'm assuming here that California did not seek reconsideration before Judge Carney. If that's correct, I view it as a bad sign.

When I was doing appeals for the USAO for EDVA, in cases where the government lost, I would routinely seek district court reconsideration. This was not because I thought I would get it, which I virtually never did. It was to give the district judge every chance to get with it and, more importantly, to show the Fourth Circuit that I had given him every chance to get with it before taking up their time. I also considered it the gentlemanly thing to do, so everyone knew what I was going to argue to the Circuit.

I can't imagine AG Harris didn't have the same thought. Thus the failure to seek district court reconsideration is a bad sign.

I don't think it would be much trouble for her to refuse to seek any further consideration of this case. First, she probably agrees with it. Second, she isn't going to care what the electorate generally thinks, because the only electorate that matters to her are the hardcore types who turn out in Democratic primaries. I'm quite sure that a majority of THAT electorate is opposed to capital punishment, just as it's opposed to any serious criminal punishment at all. Thus it's actually a plus for her to be able to claim, when she runs in the primary against Gavin Newsome in a few years, that she effectively ended the racist, Puritanical, fascist, dada dada dada death penalty. Plus she saved the state soooooo much money!

The only problem here is being insufficiently cynical about Ms. Harris and what really drives her. The idea that an Attorney General might actually feel obliged to defend state law against the ruling of a lawless, showboating federal district judge is just so...........old fashioned.

In addition to Bill's comments, I would note the fact that Harris will make a lot of friends on the California Supreme Court by not challenging Carney's decision.

That court has been fed up with hearing DP cases for some time. CJ George called California's DP sysytem "dysfunctional." And that court doesn't want to continue to have their calendar bogged down with time-consuming, resource-draining, capital cases. They would like to pawn those cases off to lower appellate courts -- courts that are already overrun with criminal appeals.

So it looks like Harris will have the executive (Brown), the judiciary (at least the Cal Supremes), and California's left-leaning legislature on her side if she refuses to appeal Carney's decision.

Based on my research, I don't believe that the victim's next-of-kin can appeal Carney's ruling. But I would run that issue by Professor Paul Cassell -- paul.cassell@law.utah.edu. -- a brilliant advocate on behalf of crime victims.

I am 0 for my career on Rule 59 motions so I think absent new evidence or change in law they are largely futile efforts.

Hypothetically speaking.... lets say Judge Carney is correct and the delay is cruel and unusual punishment - is a possible course of action to not appeal and once one of the various reforms on California death penalty procedure is enacting seek relief under 60 (b)(5)?

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