Here is an update on the California lethal injection suit, in which we represent two family members of murder victims, Bradley Winchell and Kermit Alexander, suing to get CDCR off the dime on establishing a lethal injection protocol. A prior post after the hearing is here. An NBC report featuring Mr. Alexander is noted here.
A week after the hearing, Judge Chang issued the final ruling on the demurrer. This document is essentially a reprint of the tentative ruling with the post-hearing adjustments added at the end. That can be a bit confusing if you are not used to it. The final ruling on the demurrer is not a decision of the case. It just says that CDCR's attempt to have our suit thrown out at the threshold fails and the case can go forward. CDCR was ordered to answer the allegations of the petition within 10 days.
CDCR really did not want to answer and went to extreme lengths to avoid answering. The AG, on behalf of CDCR, filed a writ petition with the Court of Appeal. That is, even though an order overruling a demurrer is not appealable, they want the Court of Appeal to step in with a special kind of order called an "extraordinary writ." On top of that, they wanted an immediate stay of all proceedings in the trial court. Since the only thing happening imminently in the trial court was the requirement that they answer, the only reason for an immediate stay was to avoid answering.
I immediately set to work writing a quickie rebuttal to the stay request, but the following day, before I could finish it, the Court of Appeal clerk called to tell me the stay was denied. CDCR had to answer.
A week after the hearing, Judge Chang issued the final ruling on the demurrer. This document is essentially a reprint of the tentative ruling with the post-hearing adjustments added at the end. That can be a bit confusing if you are not used to it. The final ruling on the demurrer is not a decision of the case. It just says that CDCR's attempt to have our suit thrown out at the threshold fails and the case can go forward. CDCR was ordered to answer the allegations of the petition within 10 days.
CDCR really did not want to answer and went to extreme lengths to avoid answering. The AG, on behalf of CDCR, filed a writ petition with the Court of Appeal. That is, even though an order overruling a demurrer is not appealable, they want the Court of Appeal to step in with a special kind of order called an "extraordinary writ." On top of that, they wanted an immediate stay of all proceedings in the trial court. Since the only thing happening imminently in the trial court was the requirement that they answer, the only reason for an immediate stay was to avoid answering.
I immediately set to work writing a quickie rebuttal to the stay request, but the following day, before I could finish it, the Court of Appeal clerk called to tell me the stay was denied. CDCR had to answer.
So what is the deep dark secret they fought so hard to avoid revealing to the public? Our petition in the Superior Court alleged that CDCR already has a protocol. In paragraph 10 of the Answer, CDCR admits, publicly for the first time I know of, that they do have one, although they characterize what they have as "preliminary drafts."
Paragraph 9 is also a gem:
Meanwhile, back in the Court of Appeal, we have filed our Preliminary Opposition to the writ petition. We will see what the Court of Appeal has to say. My money is on a one-line denial.
Paragraph 9 is also a gem:
9. In response to paragraph 9, respondent lacks sufficient information or belief to respond to the allegation that all reviews of the sentences of Michael Morales and Tiequon Cox have been completed and none are pending.Seriously? The Attorney General tracks these cases quite closely. Of course they have the information. The paragraph goes on:
Respondent denies that the sentences of Michael Morales and Tiequon Cox have gone unexecuted since 2006 and 2011, respectively, solely because CDCR has not adopted an execution protocol meeting the requirements of the [other court decisions on lethal injection].Really? What other reason is there? There are no stays of execution in effect. The injunctions allow CDCR to go forward with executions if they meet the requirements.
Meanwhile, back in the Court of Appeal, we have filed our Preliminary Opposition to the writ petition. We will see what the Court of Appeal has to say. My money is on a one-line denial.
Are the State's answers given under oath? If so, there's a perjury case here -- not that it will ever be brought (except via a private attorney general).
I wonder if Judge Chang would convene a hearing at which CJLF would have the chance to ask these questions directly to a state witness.
When mere mortals answers a verified complaint, we must verify the answer. Government officials are exempt. In addition, I can see barely enough daylight between the answer and an outright lie to avoid prosecution for perjury even if the answer were verified.
Hearings in cases such as this do not generally involve testimony of witnesses in court. They are typically decided on legal arguments and documentary evidence.