Recently in State Courts Category

At the time of the American Revolution, criminal law was a mixture of case law and statutes, with the elements of some crimes being established by courts and therefore changeable by them.  In some Eastern states that is still the case.  In Massachusetts, the basic felony-murder rule comes from case law, and today the Supreme Judicial Court abolished it, prospectively only, in Commonwealth v. Brown, SJC-11669.

Generally, murder is distinguished from manslaughter by the mental element of "malice."  Definitions of "malice" vary among the states.  Under the felony-murder rule, the intent to commit certain dangerous felonies (e.g., robbery) supplies the mental element so that every participant in the robbery is guilty of murder if someone is killed.  In its most extreme form, one robber can be guilty of the murder of the other if the other is justifiably killed by the robbery victim.  Even I think that's going way too far.

I have only skimmed the opinion so far, so I won't be commenting on it at this time.  Thanks to former CJLF Fellow Christine Dowling for the tip.

Proposition 66 Upheld

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Prop66.jpgThe California Supreme Court today upheld the death penalty reform initiative, Proposition 66, rejecting the attacks on the initiative nearly across the board.  The court was unanimous in rejecting the attacks that would have invalidated the initiative in its entirely.  It divided 5-2 on the interpretation of the five-year limit and on the provision that allows superior court decisions in habeas corpus cases to be appealed to the intermediate courts of appeal rather than the state supreme court.

The case is Briggs v. Brown, S238309.

CJLF has this press release.

We have press coverage from Maura Dolan in the L.A. Times; Cheryl Miller in The Recorder; Sudhin Thanawala and Brian Melley for AP.

KOVR, CBS-13 in Sacramento has this report with me and archival footage of opponent Ron Briggs.

Prop. 66 Oral Argument Video

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The video of the June 6 oral argument in California's Proposition 66 case, Briggs v. Brown, is now available.  The court's argument archive page is here.  The argument is preceded by a tribute to Justice Werdegar, who is retiring this summer.  It begins 27 minutes into the video.  My 10 minutes begin at the 1:11 mark.  My day-after post on the argument is here.




Proposition 66 Oral Argument

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Yesterday the California Supreme Court heard oral argument in Briggs v. Brown, the case challenging Proposition 66, "the Death Penalty Reform and Savings Act of 2016."  The petitioner, Ron Briggs, who is challenging the initiative, was represented by Christina Von der Ahe Rayburn.  The named respondents are Governor Brown, Attorney General Xavier Becerra, and the Judicial Council, represented by DAG Jose Zelidon-Zepeda.  The Proposition 66 campaign committee, Californians to Mend, Not End, the Death Penalty, successfully moved to intervene in the case, and I represented the committee at the argument.  The hour was divided 30-20-10.

The argument was streamed live.  For those who didn't catch it, a link to the archived video should be posted within a week is now available on this page.

The petitioner's challenge is a scattershot attack, challenging many provisions of the initiative in an effort to bring the whole enactment down.  Press accounts of the argument focused on the issue that was discussed at length, the requirement that the direct appeal and initial habeas corpus petition be completed within 5 years.  In my view, the more important indication from the argument is which issues did not produce any questions for our side from the justices.

It is always dicey to predict from oral argument, but from what does not seem to be seriously at issue, it appears unlikely that the court will invalidate the initiative as a whole or any a substantial portion of it.

Restitution

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In People v. Martinez (S219970), the defendant's vehicle collided with a 12-year old boy riding on a scooter.  The defendant got out of his truck to check on the boy.  When the boy's mother rushed to the scene, the defendant got back into his truck and left.  The boy sustained multiple broken bones and a traumatic brain injury.  The defendant was uninsured, unlicensed, and on felony probation.  The defendant was soon located and voluntarily came forward admitting his involvement in the accident.

The defendant was charged with one felony count of leaving the scene of an accident (Calif. Vehicle Code 20001(a)).  He pleaded guilty and was sentenced to 3-years imprisonment.  At sentencing, the boy's mother stated that her son hit the defendant's truck and that it was an accident.  The defendant stated that the boy failed to stop his scooter and ran into his truck.  No findings were made regarding the defendant's responsibility for the accident.

The trial court later ordered the defendant to pay $425,654.63 in restitution to the victim's family for medical costs the boy incurred as a result of the accident.  On appeal, the defendant argued, and the Court of Appeal agreed, that
 
because defendant was not convicted for any offense involving responsibility for the actual accident and no factual determination of his responsibility for the collision or the victim's injuries has been made, the court erred in ordering restitution to the victim for treatment of the injuries he received as a result of the accident. 

Today the California Supreme Court also agreed with the defendant holding:

Where, as here, a criminal defendant is convicted and sentenced to state prison, section 1202.4 of the Penal Code (section 1202.4) provides that the defendant must pay restitution directly to the victim for losses incurred "as a result of the commission of a crime" (§1202.4, subd. (a)(1); see People v. Giordano (2007) 42 Cal.4th 644, 651-52 ("Giordano").)  "To the extent possible," direct victim restitution is to be ordered in an amount "sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct." (§1202.4, subd. (f)(3).)  Application of these provisions depends on the relationship between the victim's loss and the defendant's crime. Here, defendant's crime was not being involved in a traffic accident, nor does his conviction imply that he was at fault in the accident.  Defendant's crime, rather, was leaving the scene of the accident without presenting identification or rendering aid.  Thus, under section 1202.4, the trial court was authorized to order restitution for those injuries that were caused or exacerbated by defendant's criminal flight from the scene of the accident, but it was not authorized to award restitution for injuries resulting from the accident itself.

  

Setting the Details on Execution Methods

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The ACLU is really getting desperate to stop resumption of executions in California.  They certainly lost on one of the ballot measures last week, and it is close to certain they lost on the other.  AP has not "called" Proposition 66, but the Secretary of State's Office did remove it from its "close contests" page this afternoon when the margin inched up to the 2% threshold for "close."

In California, and in almost all states, the legislature sets the method of execution in broad terms and the prison department fills in the details.  That has been the law here and almost every capital punishment state for a long time.  The outlier is Arkansas, where a howler of a decision by the state supreme court said that violates the separation of powers.

Maura Dolan reports in the L.A. Times:

The ACLU of Northern California challenged a state law that gives the Department of Corrections and Rehabilitation wide flexibility in establishing execution procedures.

Delegating such policy decisions to a state agency, the suit says, violates separation of powers provisions of the California Constitution.
Seriously?  It never has before.
From the Stuff Stumbled Upon While Looking for Something Else File comes this press release of three weeks ago from Arizona Governor Doug Ducey:

Governor Doug Ducey today announced the appointment of Maricopa County Superior Court Judge Paul McMurdie to the Arizona Court of Appeals, Division One.

Judge McMurdie has served on the Maricopa County Superior Court since 2005.   He has presided over criminal, civil, and family law cases, and is currently the Presiding Family Court Judge. 

Prior to his trial court appointment, Judge McMurdie worked as Division Chief of Appeals and Research at the Maricopa County Attorney's Office, and also as Chief Counsel of the Criminal Appeals Section of the Arizona Attorney General's Office, under Attorneys General Grant Woods and Janet Napolitano.

It was in those pre-bench capacities that I had the pleasure of working with Paul.  Well done, Gov. Ducey.
The Florida Supreme Court has decided the case of Timothy Hurst on remand from the U.S. Supreme Court decision in Hurst v. Florida.  The majority wrongly interpreted the high court decision to require that the jury be unanimous in all of its decisions, not just the finding of the death-eligibility circumstance.

To insulate its error from a likely reversal by the high court, the Florida Supreme Court cynically added the state constitution as an additional ground for its holding, casually tossing out forty years of precedent from the restoration of capital punishment in the 1970s until the decision in Hurst.   Stare decisis?  We don't need no stinking stare decisis.

When Florida's Legislature was considering how to fix its statute in light of Hurst, the debate was all about whether to authorize a less-than-unanimous penalty verdict or go for the single-juror-veto law that lets one juror impose his will over the objection of the other 11.  I tried to tell them that the Arizona/California method of requiring the jury to be unanimous one way or the other was the way to go, and they blew me off.  Maybe now they will listen?

Chief Justice Malcolm Lucas

Retired California Chief Justice Malcolm Lucas died yesterday.  He was 89.

Justice Lucas was the lone voice of sense on the California Supreme Court in its darkest days, a time when judicial activism ran roughshod over the validly enacted will of the people, over the rights of victims, and over the state constitution itself.  He gave up a U.S. District Judge seat to take the position, and one reporter asked him why he was taking a "demotion."  There was important work to be done.

In 1986, the people stood up, said "no more," and booted three of the justices, including the notorious Chief Justice Rose Bird.  Governor Deukmejian elevated Justice Lucas to Chief Justice.  As the leader of the court, he was instrumental in restoring it to one of the finest courts in the nation.

After retirement, Chief Justice Lucas was a friend and advisor to CJLF.  He will be missed.

Kansas v. Carr Podcast

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Justice Antonin Scalia's last opinion for the U. S. Supreme Court was Kansas v. Carr, decided 8-1 on January 20.  The Federalist Society has this podcast on the decision, by yours truly.
The United States Supreme Court today decided the case of Kansas v. Carr, along with the companion case of Kansas v. Gleason.  The Carr brothers are Kansas's exemplar of why the death penalty is necessary.  Their crime spree of robbery, murder, home invasion, and rape is truly a case where any lesser penalty would be a mockery of justice.

Kansas is a conservative state, but because it selects its state supreme court justices in the worst possible way, it has a court that bends over backwards to help murderers escape justice.  It often invokes the federal constitution to do so in order to prevent its decisions from being abrogated by the legislature.  Those clearly erroneous decisions can be reversed by the United States Supreme Court, however, and today's decision is not the first.

And when the Kansas Supreme Court time and again invalidates death sentences because it says the Federal Constitution requires it, "review by this Court, far from undermining state autonomy, is the only possible way to vindicate it." Ibid. "When we correct a state court's federal errors, we return power to the State, and to its people." Ibid.
Justice Scalia wrote the opinion from the Court, and he quoted his own powerful concurring opinion in Kansas v. Marsh (2006), elevating that language from concurrence to controlling precedent.  Bravo.

In the capital sentencing regime that has been built since the 1976 cases, the process consists of two distinct steps -- eligibility and selection.  Blurring that distinction is an error, because the two decisions are quite different.  The jury instruction issue in this case illustrates the importance of keeping that distinction clear.

Connecticut Death Penalty Hearing

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Generally speaking, legislatures can make reductions in punishments retroactive to old cases or not, as they choose.  The Connecticut Legislature's repeal of the death penalty was unambiguously not retroactive, and politically it would not have passed without that savings clause.  The ink was not dry on the bill before the anti-death-penalty crowd attacked that clause of their own bill.  In a shocking act of judicial activism, the Connecticut Supreme Court in Santiago v. State declared the death penalty unconstitutional despite having rejected that claim many times over the years and despite the established history of nonretroactive changes in sentencing law in that state.

Last Thursday's News Scan noted the oral argument in the case of State v. Peeler, in which the state asks the Supreme Court to reconsider its decision.  Video of the argument is now available here.

The defense lawyer's argument is really painful to watch.  He just keeps insisting over and over that the Santiago decision must be respected as final.  So why did Santiago itself not respect as final all the earlier cases rejecting constitutional attacks on the death penalty?  The defense side seems to think that precedent is a ratchet.  No decision favoring the prosecution is ever final.  Every one is subject to constant attack.  But once the defense wins a point, it becomes absolutely sacrosanct.  This is utter nonsense.

A decision should receive no more respect as precedent than it gave to precedent.

SCOTUS Considers the Wichita Massacre

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Even among people who deal with violent crime all the time, there are some crimes of such revolting depravity, such pure evil, that they knock us back in our chairs just reading about them.  The United States Supreme Court considers such a case tomorrow.  It is the notorious case of brothers Jonathan and Reginald Carr, whose crime spree culminated in a case called the Wichita Massacre.

The horrifying facts of the case are described briefly in CJLF's brief and press release.

The Federalist Society will have a "courthouse steps" teleforum.  Details at the end of this post.
 
The Kansas Supreme Court bent over backwards to overturn the supremely well-deserved sentences of the Carr brothers.  Along with a dubious holding on severance of the cases, the majority's far-fetched theory is that because the jury was instructed to find other matters beyond a reasonable doubt, the fact that the jury was not expressly instructed on the burden of proof for mitigation meant that the jury might have turned this around and imposed a similar burden on the defendant to prove mitigating circumstances.  Under this scenario, a jury supposedly might have ignored mitigation proved by a preponderance but not beyond a reasonable doubt and then unanimously agreed to a sentence that the jurors would not have thought just if they had considered those circumstances.

"Preposterous" barely describes this convoluted logic.
Miguel Bustillo reports for the WSJ that Texas AG Ken Paxton has been indicted by a county grand jury.  However, the fact that this case was instigated by the same group that brought the preposterous charge that former Governor Rick Perry committed a crime by vetoing a bill makes the whole matter suspect.  See prior post on that case.

The allegation is violation of disclosure and registration requirements for people selling securities, prior to Mr. Paxton becoming Attorney General.

The group calls itself Texans for Public Justice.  First the case went to District Attorney of Travis County, who said she had no jurisdiction and referred the case to Collin County.  The DA there, a friend of Mr. Paxton's, recused himself.  Two defense lawyers were appointed as special prosecutors.

The Texas Legislature may want to look at the state's special prosecutor system.  People who have not been elected and who are not responsible to any elected executive officer should not be exercising the executive authority of the state.  There needs to be a better way to deal with recusals.

Background on the Weidert Case

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Those who read the entry about the Weidert case in today's News Scan may wonder why Weidert was not sentenced to life without parole.  After all, isn't killing a witness to a crime to prevent his testimony "special circumstance" murder in California?

This case was decided in the darkest days of the California Supreme Court.  See People v. Weidert, 39 Cal.3d 836, 705 P.2d 380 (1985).  Cal. Supreme in those days bent over backward to resolve every conceivable issue -- and some inconceivable ones -- in favor of murderers.  Weidert was 17 1/2 at the time of the crime, and the court held that the circumstance of killing a witness to prevent his testimony in a criminal proceeding did not apply to a person who at least initially would have been in juvenile court for the underlying burglary.

CJLF filed an amicus brief to argue against this anomalous result.  (Not me, that was before my time here.)  Justice Lucas agreed with our position, as did Justice Mosk, but the court was so stacked against the law-abiding public at the time that the decision went 5-2 the other way.

Fourteen months later, the people of California tossed out three of the justices for their consistent tilt in favor of criminals.  That vote and the consequent vast improvement in the California Supreme Court remains to this day one of the strongest arguments against life tenure for judges.

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