BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 1058 (Leno) 8
As Introduced February 18, 2014
Hearing date: April 8, 2014
Penal Code
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WRIT OF HABEAS CORPUS
HISTORY
Source: California Innocence Project
Prior Legislation: None
Support: Ella Baker Center for Human Rights; ACLU; California
Public Defenders Association; California Attorneys for
Criminal Justice; Legal Services for Prisoners with
Children; Friends Committee on Legislation; California
Catholic Conference; Taxpayers for Improving Public
Safety
Opposition:California District Attorneys Association
KEY ISSUE
SHOULD "FALSE EVIDENCE" FOR PURPOSES OF A WRIT OF HABEAS CORPUS
INCLUDE OPINIONS OF EXPERTS THAT TESTIFIED AT A HEARING OR TRIAL
THAT HAVE BEEN EITHER REPUDIATED BY THE EXPERT OR UNDERMINED BY
LATER SCIENTIFIC RESEARCH OR TECHNOLOGICAL ADVANCES?
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PURPOSE
The purpose of this bill is to allow a writ of habeas corpus
when evidence given at trial has subsequently been repudiated by
the expert that testified or undermined by later scientific
research or technological advances.
Existing law provides that every person unlawfully imprisoned or
restrained of his or her liberty, under any pretense whatever,
may prosecute a writ of habeas corpus to inquire into the cause
of such imprisonment or restraint. (Penal Code § 1473(a).)
Existing law states that a writ of habeas corpus may be
prosecuted for, but not limited to, the following reasons:
False evidence that is substantially material or
probative on the issue of guilt, or punishment was
introduced against a person at any hearing or trial
relating to his incarceration;
False physical evidence believed by a person to be
factual, material or probative on the issue of guilt, which
was known by the person at the time of entering a plea of
guilty and which was a material factor directly related to
the plea of guilty by the person; and,
Any allegation that the prosecution knew or should have
known of the false nature of the evidence is immaterial to
the prosecution of a writ of habeas corpus. (Penal Code §
1473(b).)
Existing law states that nothing in this section shall be
construed as limiting the grounds for which a writ of habeas
corpus may be prosecuted or as precluding the use of any other
remedies. (Penal Code § 1473(d).)
This bill provides that for purposes of a writ of habeas corpus
"false evidence" shall include opinions of experts that have
either been repudiated by the expert who originally provided the
opinion at a hearing or trial or that have been undermined by
later scientific research or technological advances.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
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2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
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The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
California Penal Code, section 1473 allows for
individuals who have been wrongfully convicted based on
"false evidence"-evidence which is later proven to be
false, untrue, or misleading-to have their convictions
reversed. Under the current version of California
Penal Code § 1473(b)(1), if an incarcerated individual
can demonstrate to a court there is a "reasonable
probability" that, had false evidence not been
introduced against them, the result would have been
different, the court may determine that the original
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conviction was wrongful and should be reversed.
Current law provides this remedy for eyewitness
testimony, where the witness recants the original
testimony that served as the basis for the conviction.
It also provides this remedy for perjury, where a
witness comes forward to say he or she lied on the
stand to convict an individual. However, it does not
account for the situation in which a forensic expert
testifies at trial as to specific forensic facts, which
are later disproved, either by the expert himself or by
the general scientific community.
Forensic science testing errors are the second most
common reason for the wrongful conviction of innocent
men and women in the United States.<1>
The issue this bill seeks to address was clearly
depicted in the California Supreme Court case, In Re
Richards, 55 Cal.4th 948 (2012). The Richards 4-3
majority upheld petitioner's conviction, holding that
"expert testimony" is different from other types of
testimony in that it is merely the opinion of the
expert, not evidence in and of itself, and so can never
be "true" or "false." Because of this, the court found
Richards had failed to establish the falsity of the
original expert testimony, which had served as the
basis for his conviction. The Richards dissent,
written by Justice Liu, pointed out the injustice of
the majority opinion; noting that the false evidence
statute Penal Code § 1473(b), used by the majority, did
not make a distinction between lay and expert
testimony, but that the majority's opinion placed a
heavier burden on any petitioner seeking relief from
false evidence presented by expert testimony. Liu
noted that there is no reason to treat the two types of
testimony differently because, just as the truth or
falsity of the eyewitness testimony under 1473(b)
-----------------------
<1> California Commission on the Fair Administration of Justice
"Report and Recommendations Regarding Forensic Science Evidence"
May 8, 2007 http://www.ccfaj.org/rr-problems-official.html .
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depends on the truth or falsity of the underlying facts
concerning their perceptual abilities, so too does the
truth or falsity of the expert's testimony depend on
the underlying facts essential to the expert's
inferential method and opinion.
2. Habeas Corpus
Habeas corpus, also known as "the Great Writ", is a process
guaranteed by both the federal and state Constitutions to obtain
prompt judicial relief from illegal restraint. The functions of
the writ is set forth in Penal Code section 1473(a): "Every
person unlawfully imprisoned or restrained of his or her
liberty, under any pretense whatever, may prosecute a writ of
habeas corpus, to inquire into the cause of such imprisonment or
restraint." A writ of habeas corpus may be prosecuted for, but
not limited to, the following reasons:
False evidence that is substantially material or
probative on the issue of guilt, or punishment was
introduced against a person at any hearing or trial
relating to his incarceration;
False physical evidence believed by a person to be
factual, material or probative on the issue of guilt, which
was known by the person at the time of entering a plea of
guilty and which was a material factor directly related to
the plea of guilty by the person; and,
Any allegation that the prosecution knew or should have
known of the false nature of the evidence is immaterial to
the prosecution of a writ of habeas corpus. (Penal Code §
1473(b).
3. False Evidence
As noted in the author's statement In Re Richards, 55 Cal.4th
948 (2012) found that in a habeas petition the "false evidence
standard is not met" just because new technology causes an
expert to reject his or her earlier testimony. The fact that
the expert has changed his or her opinion has no bearing on the
validity of the original opinion. This was a change in the law.
Prior to Richards cases where technology or science has changed
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were brought successfully.
As science changes, theories used by experts in trials becomes
outdated. For example outdated or flawed "science" used by
arson investigators has caused the state of Texas to review 1085
Texas arson convictions. (
http://www.ipoftexas.org/statewide-arson-review ) And, questions
have been raised about the science of "shaken baby syndrome" as
used in criminal convictions. (see for example Balko, Radley,
"Shaken Baby Syndrom and the Flawed Science in Criminal Courts."
The Washington Post
http://www.washingtonpost.com/news/the-watch/wp/2014/02/21/shaken
-baby-syndrome-and-the-flawed-science-in-our-criminal-courts/ )
In order to take into account new science and education, this
bill explicitly provides that for purposes of a habeas petition
"false evidence" shall include opinions of experts that have
either been repudiated by the expert who originally provided the
opinion at a hearing or a trial or that have been undermined by
later scientific research or technological advances.
Essentially, this bill returns the ability of a person to bring
a writ of habeas on these grounds that existed prior to
Richards.
4. Support
In support, the ACLU notes that prior to the Richards decision:
[I]nnocent individuals could and often did
successfully challenge their convictions when evidence
underlying their original conviction has be
substantially undermined by scientific and
technological advances. One such instance was the
case with Kenneth Marsh.
Marsh was convicted in November 1983 for the death of
33-month Philip Buell, who died 10 months earlier from
a head injury sustained when he fell off a couch and
hit his head on a brick hearth. Although the incident
was originally treated as an accidental fall by the
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San Diego prosecutors later charged Marsh with the
murder of young Philip. At trial, the prosecution's
medical experts claimed that the only way Philip could
have sustained the injuries was through abuse.
Marsh filed a petition for writ of habeas corpus in
October 2002 seeking a new trial after evidence was
uncovered that proved Marsh's innocence. Based on the
false evidence provided at Marsh's original trial, his
habeas petition was granted and new charges were
dismissed-he is now a free man. Had Marsh's case been
decided today, it is possible that he would remain in
prison for the tragic accidental death of Buell.
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5. Opposition
CDAA opposes this bill stating:
Certainly, experts who provide testimony that they know
to be untrue should be prosecuted under the myriad laws
that already cover perjury, false evidence and
obstruction of justice. However, an expert opinion
that is later invalidated by scientific or
technological advances is not false evidence. To
categorize it as such is to suggest some nefarious
intent on the part of the expert that likely does not
exist.
More generally, we believe that this clarification is
unnecessary, given the permissive nature of Penal Code
Section 1743. It is already clear from the language in
subdivisions (b) and (d) that a writ of habeas corpus
may not be filed for any reason.
The seemingly limitless ground for which a writ of
habeas corpus may be filed would ostensibly include
experts who have repudiated their prior opinions, as
well as opinions that have later been invalidated by
scientific and technological advances.
While we believe it is inaccurate and prejudicial to
define these opinions as false evidence, we agree that
persons who have been convicted as a result of flawed
opinion should be able to file for a writ of habeas
corpus. In fact, they already can.
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