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Argument on California's Delayed Death Penalty

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The US Court of Appeals for the Ninth Circuit held oral argument yesterday in Jones v. Davis, the case in which a federal district judge ruled that the extreme delays in California's death penalty render it unconstitutional as a violation of the defendant's rights.  Make no mistake, the delays are unconstitutional as well as unconscionable, but they are a violation of the rights of the murder victims' families under Article I, Section 28 of the California Constitution.  To the extent the delays occur in federal court (and that is a large extent), they are a violation of the rights of the victims' families under 18 U.S.C. §3771.  The remedy is to fix the delays.  Links to earlier posts are collected in this post.

Before the argument, I said that I was confident that the decision would be reversed on one of the several limitations on habeas corpus breached by Judge Carney.  After the argument, others are saying it looks that way as well.
The Ninth Circuit website has video and audio of the argument.

The panel was Judges Graber, Rawlinson, and Watford.  When the panel was announced, a reporter asked me if I was discouraged that all three were appointed by Democratic Presidents.  Not at all.  This panel is moderate for the Ninth.  (It's all relative.  On the Fifth they would be regarded as left-wing.)  Judges Graber and Rawlinson have established track records as persons of sense.  They don't always rule the way I would, but they don't go off on wild tangents like some judges on the Ninth.  Judge Watford has joined the court more recently and doesn't have as much of a track record.  On this court, we could have gotten a much, much worse panel.

Maura Dolan reports for the LA Times:

During a hearing before a U.S. 9th Circuit Court of Appeals panel, three judges focused on procedural land mines that could imperil last year's ruling by U.S. District Judge Cormac Carney declaring California's system of capital punishment unconstitutional. None of the 9th Circuit judges revealed any leanings, but all focused on legal rules that might require them to overturn Carney's decision.
If they were going to decide on the merits that California's death penalty is unconstitutional, wouldn't they have asked some questions about it?  It seems highly unlikely they would not.  Judge Watford seems focused on the exhaustion issue.  The LAT reports that he, "said he had 'major problems' with the fact that Carney ruled on an issue not yet addressed by the California Supreme Court."

Judge Susan P. Graber, a Clinton appointee, suggested the state high court might already have rejected the constitutional argument, albeit in a more narrow context. Federal courts are supposed to defer to decisions by state judges in criminal cases.

"The California Supreme Court has made it quite clear that the record in this case does not warrant relief on the merits," Graber said.

Judge Johnnie B. Rawlinson, another Clinton appointee, questioned whether Carney's ruling was based on direct U.S. Supreme Court precedent.

"I am having difficulty with your argument," she told Laurence. "Has the Supreme Court ever said the fact that one is lingering on death row for a finite number of years or an infinite number of years constitutes a constitutional violation?"
These would be issues under 28 U.S.C. §2254(d) if the California Supreme Court is deemed to have ruled on the question and under the rule of Teague v. Lane regardless of whether Cal. Supreme has ruled on it.

Loyola Law School professor Laurie Levenson, who attended the hearing, said it appeared death penalty opponents faced "an uphill battle" with the court.

Cautioning that predicting a hearing's outcome amounted to reading tea leaves, she said: "The tea leaves said to me that the panel would be most comfortable sending it back" to state court.
Brenda Gazzar has this article in the Los Angeles Daily News quoting someone who does not agree all that often with Professor Levenson but does this time:
 
Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said he was pleased the panel showed interest in the exhaustion requirement, for which he said there are "very few exceptions."

"I was encouraged to see that because I think that's probably the simplest and cleanest way to resolve the case," Scheidegger said. "This claim should be denied on the ground that the petitioner did not bring it to the state court first."
Howard Mintz has this article in the San Jose Mercury News.

Yesterday I talked about the case with John and Ken of KFI Radio in Los Angeles.

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