BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair S
2007-2008 Regular Session B
6
3
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SB 636 (Harman)
As Introduced February 22, 2007
Hearing date: January 15, 2008
Government Code; Penal Code
MK:br
DEATH PENALTY APPEALS: APPOINTMENT OF COUNSEL
HISTORY
Source: Author
Prior Legislation: SB 1558 (Morrow) - not heard Senate Public
Safety 2006
SB 378 (Morrow) - failed Senate Public Safety 2005
SB 513 (Lockyer) - Ch. 869, Stats. 1997
SB 1088 (Lockyer) - from Conference 1997, content
placed in
SB 513 (Lockyer) on 9-10-97
SB 911 (Calderon) - held in Senate Approps. 1997
AB 1471 (Pacheco) - held in Assembly Approps. 1997
SB 1533 (Calderon) - failed in Senate Criminal
Procedure 1996
AB 195 (Morrow) - Ch. 1086, Stats. 1996
AB 2462 (Morrow) - held in Senate Approps. 1996
AB 2008 (K. Murray) - vetoed 1996
AB 1508 (Bowler) - held in Assembly Public Safety
1993
AB 2196 (Bentley) - failed in Assembly Public
Safety 1991
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Support: Peace Officers Research Association of California
Opposition:Habeas Corpus Resource Center; American Civil
Liberties Union; California Attorneys for Criminal
Justice; Taxpayers for Improving Public Safety;
California Public Defenders Association
KEY ISSUES
SHOULD THE WRIT OF HABEAS CORPUS BE ESSENTIALLY ELIMINATED FOR A
CAPITAL CASE AND REPLACED BY A NEWLY CREATED POSTCONVICTION REVIEW
IN THE SUPERIOR COURT?
SHOULD THE STANDARDS FOR APPELLATE COUNSEL IN A CAPITAL CASE BE
LOWERED AND SET IN STATUTE INSTEAD OF DETERMINED BY THE SUPREME
COURT?
SHOULD ALL ATTORNEYS WHO DO NON-CAPITAL INDIGENT APPEALS BE REQUIRED
TO APPLY TO DO CAPITAL APPEALS?
SHOULD THE BOARD OF DIRECTORS OF THE HABEAS CORPUS RESOURCE CENTER
BE APPOINTED BY THE MEMBERS OF THE SUPREME COURT INSTEAD OF THE
APPELLATE PROJECTS?
SHOULD THE OFFICE OF THE STATE PUBLIC DEFENDER AND THE CRIMINAL
DIVISION OF THE ATTORNEY GENERAL GET ADDITIONAL PERSONNEL?
PURPOSE
The purpose of this bill is to create a new type of
postconviction review in capital cases instead of habeas corpus,
to change the standards for counsel in capital cases, to add
personnel to the State Public Defender and the Attorney General
and to make changes to the board of directors of the Habeas
Corpus Resource Center.
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The California Constitution provides "[h]abeas corpus may not
be suspended unless required by public safety in cases of
rebellion or invasion." (Cal. Const., art. I 11.)
The California Constitution , in pertinent part, provides that
"[t]he Supreme Court, court of appeal, superior courts, and
their judges have original jurisdiction in habeas corpus
proceedings. . . ." (Cal. Const., art. VI 10.)
The California Constitution , in pertinent part, provides that
"[t]he Supreme Court has appellate jurisdiction when judgment of
death has been pronounced. . . ." (Cal. Const., art. VI 11.)
Existing law creates the Office of the State Public Defender.
The State Public Defender represents indigent defendants in
capital appeals at both the state and federal level and may
represent defendants in other appeals if the office "is
fulfilling the responsibilities to provide representation" in
the capital appeals or the State Public Defender determines a
limited number of cases are necessary for training. (Government
Code 15402 et seq.)
This bill provides that in order to ensure indigent defendants
have effective assistance of counsel in capital appeals, the
office of the State Public Defender shall maintain no less than
127 funded positions, including 67 attorney positions.
This bill also increases the positions in the Criminal Division
of the Department of Justice by six.
Existing law provides that the Judicial Council shall adopt
rules of court regulating the selection of appointed counsel,
other than the State Public Defender, to handle criminal appeals
by indigent defendant. These rules shall establish procedures
for the appointment of counsel in all appellate districts. In
developing these rules, the Judicial Council shall consider the
need to include screening of eligible appointees, the need to
match the skills and experience of the attorney with the demands
of the case and the process by which this might be done, and the
need or desirability of evaluating an attorney's performance
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before assigning the attorney to another case. (Government Code
68511.5.)
This bill would require appointees to non-capital cases to have
either applied to the Supreme Court within six months of meeting
the court's competence standards or been appointed by the
Supreme Court to represent an indigent defendant in a death
penalty appeal or postconviction review appeal.
Existing law creates the judicial branch the California Habeas
Corpus Resource Center (HCRC) which shall have all of the
following duties:
Employ up to 30 attorneys who may be appointed by the
Supreme Court to represent any person convicted and
sentenced to death in this state, who is without counsel
and who is determined by a court of competent jurisdiction
to be indigent, for the purpose of instituting and
prosecuting postconviction actions in the state and federal
courts, challenging the legality of the judgment or
sentence imposed against that person, and preparing
petitions for such executive clemency. Any such
appointment may be made concurrent with the appointment of
the State Public Defender or other counsel for the purpose
of direct appeal.
Seek reimbursement and expenses under federal law when
providing representation to indigent persons in federal
courts and process those payments.
Work with the Supreme Court in recruiting members of the
private bar to accept death penalty habeas case
appointments.
Establish and periodically update a roster of attorneys
qualified as counsel in postconviction proceedings in
capital cases.
Establish and periodically update a roster of
experienced investigators and experts who are qualified to
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assist in postconviction proceedings in capital cases.
Employ investigators and experts as staff to provide
services to appointed counsel upon request of counsel,
provided that where the provision of those services is to
private counsel under appointment by the State Supreme
Court, those services shall be pursuant to contract between
appointed counsel and the center.
Provide legal or other advice or, to the extent not
otherwise available, any other assistance to appointed
counsel in postconviction proceedings as is appropriate
where not prohibited by law.
Develop a brief bank of pleadings and related materials
on significant, recurring issues which arise in
postconviction proceedings in capital cases and to make
those briefs available to appointed counsel.
Evaluate cases and recommend assignment by the court of
appropriate attorneys.
Provide assistance and case progress monitoring as
needed.
Timely review case billings and recommend compensation
of members of the private bar to the court.
The center shall annually report to the Legislature,
Governor, and the Supreme Court on the status of the
appointment of counsel for indigent prisoners in
postconviction capital cases, and on the operations of the
office. (Government Code 68661.)
Existing law provides the Supreme Court shall offer to appoint
counsel to represent all state prisoners subject to a capital
sentence for postconviction proceedings. (Government Code
68662.)
Existing law provides that no counsel appointed to represent a
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state prisoner under capital sentence in state postconviction
proceedings shall have previously represented the prisoner at
trial or on direct appeal in the case for which the appointment
was made, unless the prisoner and counsel expressly requests
continued representation. (Government Code 68553.)
Existing law provides that HCRC shall be managed by an executive
director who shall be responsible for the day-to-day operations
of the center and chosen by a five member board of directors
with Senate confirmation. Each Appellate Project shall appoint
one board member, all of who shall be attorneys. However, no
attorney who is employed as a judge, prosecutor, or in a law
enforcement capacity shall be eligible to serve on the board.
The executive director shall serve at the will of the board.
(Government Code 68664.)
This bill provides instead that the executive director shall be
chosen by a seven-member board of directors and confirmed by the
Senate and that each Justice of the Supreme Court shall appoint
one board member.
Existing law provides that the Judicial Council and the Supreme
Court shall adopt, by rule of court, biding and mandatory
competency standards for the appointment of counsel in death
penalty direct appeals and habeas corpus proceedings.
(Government Code 68665.)
Existing Rules of Court provide that an attorney appointed as
lead or associate counsel in a death penalty appeal must have at
least the following qualifications and experience:
(1)Active practice of law in California for at least four years.
(2)Either:
(A) Service as counsel of record for a defendant
in seven completed felony appeals, including one
murder case; or
(B) Service as counsel of record for a defendant
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in five completed felony appeals and as supervised
counsel for a defendant in two death penalty appeals
in which the opening brief has been filed. Service
as supervised counsel in a death penalty appeal will
apply toward this qualification only if lead or
associate counsel in that appeal attests that the
supervised attorney performed substantial work on the
case and recommends the attorney for appointment.
(3)Familiarity with Supreme Court practices and procedures,
including those related to death penalty appeals.
(4)Within three years before appointment, completion of at least
nine hours of Supreme Court-approved appellate criminal defense
training, continuing education, or course of study, at least six
hours of which involve death penalty appeals. If the Supreme
Court has previously appointed counsel to represent a defendant
in a death penalty appeal or a related habeas corpus proceeding,
and counsel has provided active representation within three
years before the request for a new appointment, the court, after
reviewing counsel's previous work, may find that such
representation constitutes compliance with this requirement.
(5)Proficiency in issue identification, research, analysis,
writing, and advocacy, taking into consideration all of the
following:
(A) Two writing samples-ordinarily appellate
briefs-written by the attorney and presenting an
analysis of complex legal issues;
(B) If the attorney has previously been
appointed in a death penalty appeal or death
penalty-related habeas corpus proceeding, the
evaluation of the assisting counsel or entity in that
proceeding;
(C) Recommendations from two attorneys familiar
with the attorney's qualifications and performance;
and
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(D) If the attorney is on a panel of attorneys
eligible for appointments to represent indigents in
the Court of Appeal, the evaluation of the
administrator responsible for those appointments.
(California Rule of Court 76.6(d).)
Existing Rules of Court provide that an attorney appointed as
lead or associate counsel to represent a person in death
penalty-related habeas corpus proceedings must have at least the
following qualifications and experience:
(1)Active practice of law in California for at least four years.
(2)Either:
(A) Service as counsel of record for a defendant in
five completed felony appeals or writ proceedings, including
one murder case, and service as counsel of record for a
defendant in three jury trials or three habeas corpus
proceedings involving serious felonies; or
(B) Service as counsel of record for a defendant in
five completed felony appeals or writ proceedings and
service as supervised counsel in two death penalty-related
habeas corpus proceedings in which the petition has been
filed. Service as supervised counsel in a death
penalty-related habeas corpus proceeding will apply toward
this qualification only if lead or associate counsel in that
proceeding attests that the attorney performed substantial
work on the case and recommends the attorney for
appointment.
(3)Familiarity with the practices and procedures of the
California Supreme Court and the federal courts in death
penalty-related habeas corpus proceedings.
(4)Within three years before appointment, completion of at least
nine hours of Supreme Court-approved appellate criminal defense
or habeas corpus defense training, continuing education, or
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course of study, at least six hours of which address death
penalty habeas corpus proceedings. If the Supreme Court has
previously appointed counsel to represent a defendant in a death
penalty appeal or a related habeas corpus proceeding, and
counsel has provided active representation within three years
before the request for a new appointment, the court, after
reviewing counsel's previous work, may find that such
representation constitutes compliance with this requirement.
(5)Proficiency in issue identification, research, analysis,
writing, investigation, and advocacy, taking into consideration
all the following:
(A) Three writing samples - ordinarily two appellate
briefs and one habeas corpus petition-written by the
attorney and presenting an analysis of complex legal issues;
(B) If the attorney has previously been appointed in a
death penalty appeal or death penalty-related habeas corpus
proceeding, the evaluation of the assisting counsel or
entity in that proceeding;
(C) Recommendations from two attorneys familiar with
the attorney's qualifications and performance; and
(D) If the attorney is on a panel of attorneys eligible
for appointments to represent indigent appellants in the
Court of Appeal, the evaluation of the administrator
responsible for those appointments. (California Rule of
Court 76.6(e).)
Existing Rules of Court provide for alternative qualifications
for appellate or habeas counsel in a capital case. It provides
that the Supreme Court may appoint an attorney who does not meet
all of requirements meet the member of the bar and criminal law
background requirements if the attorney has the qualifications
for being an appellate or habeas counsel and:
(1)The court finds that the attorney has extensive experience in
another jurisdiction or a different type of practice (such as
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civil trials or appeals, academic work, or work for a court or
prosecutor) for at least four years, providing the attorney with
experience in complex cases substantially equivalent to that of
an attorney qualified under (d) or (e).
(2)Ongoing consultation is available to the attorney from an
assisting counsel or entity designated by the court.
(3)Within two years before appointment, the attorney has
completed at least 18 hours of Supreme Court-approved appellate
criminal defense or habeas corpus defense training, continuing
education, or course of study, at least nine hours of which
involve death penalty appellate or habeas corpus proceedings.
The Supreme Court will determine in each case whether the
training, education, or course of study completed by a
particular attorney satisfies the requirements of this
subdivision in light of the attorney's individual background and
experience. If the Supreme Court has previously appointed
counsel to represent a defendant in a death penalty appeal or a
related habeas corpus proceeding, and counsel has provided
active representation within three years before the request for
a new appointment, the court, after reviewing counsel's previous
work, may find that such representation constitutes compliance
with this requirement. (California Rule of Court 76.6(f).)
This bill provides instead that the Judicial Council and the
Supreme Court shall adopt, by rule of court, the following
binding and mandatory competency standards for the appointment
of lead counsel in death penalty direct appeals and
postconviction review appeals:
The attorney must have been admitted to practice in
California or another state for a total of five years and
have at least three years experience in handling of appeals
or postconviction proceedings in felony cases. The court
shall consider experience in defense and prosecution
equally for this purpose.
The court, for good cause, may appoint an attorney not
meeting the requirements above whose background, knowledge,
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or experience would otherwise enable him or her to properly
represent the defendant, with due consideration to the
seriousness of the possible penalty and to the unique and
complex nature of the litigation.
Existing law provides that every person unlawfully imprisoned or
restrained of his 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 incarcerations; or
False physical evidence, believed by a person to be
factual, probative, or material on the issue of guilt,
which was known by the person at the time of entering a
plea of guilty, which was a material factor directly
related to the guilty plea. (Penal Code 1473.)
Existing Rules of Court state that if a judge imposes a sentence
of death, an appeal by the defendant is automatically taken by
the Supreme Court. (California Rule of Court 34.)
Existing Federal Law provides for expedited federal action in
capital habeas actions for states that "opt-in" by having
postconviction procedures or which have "unitary review"
procedures. (28 U.S.C. 2261-2266.)
This bill establishes an expedited system of review of cases in
which the death sentence is imposed.
This bill states that the purpose of the expedited review is to:
Comply with the 28 U.S.C. Sections 2261-2266 in order to
get an expedited federal habeas proceeding.
Improve accuracy, completeness and justice of review of
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proceedings by requiring that postconviction review
commence immediately after the imposition of a sentence of
death and that factual questions be resolved in the forum
best suited to resolve them.
Allow for the full and fair examination of all legally
cognizable postconviction issues by the trial court and the
California Supreme Court.
Eliminate, to the fullest extent possible, unreasonable
and unjust delays in the resolution of postconviction
issues by reducing the number of proceedings in capital
cases.
This bill eliminates existing habeas corpus for death penalty by
providing that notwithstanding any other statute or rule, a
motion created by this bill and a direct appeal are the only
procedures for challenging a sentence of death or the conviction
that resulted in the sentence of death, except a claim may be
made for ineffective assistance of appellate counsel.
This bill provides that after a sentence of death is imposed,
the trial court shall have a hearing where the court shall:
Advise the defendant of the nature of review
created by this bill.
Advise the defendant of the right to direct appeal
counsel.
Advise the defendant that the issue of ineffective
assistance of trial counsel before trial, at trial, or
during the penalty phase of hearing may only be raised
on postconviction review and on postconviction review
appeal.
Advise the defendant that the issue of ineffective
assistance of counsel on direct appeal counsel may
only be raised by way of a petition for a writ of
habeas corpus filed in the California Supreme Court by
new postconviction counsel or by the defendant.
Determine whether the defendant intends to pursue
postconviction review.
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If the defendant intends to pursue postconviction
review, determine whether the defendant intends to
proceed with or without counsel.
This bill provides that after a full discussion on the record,
if the defendant knowingly, voluntarily and intelligently waives
the right to postconviction review and/or appointed counsel then
the trial court shall enter that waiver on the record.
This bill provides that if the defendant chooses to pursue
postconviction review, the trial court shall enter an order
appointing new postconviction counsel for the defendant unless:
The defendant has retained new postconviction
counsel.
The defendant has elected to proceed without counsel
and the trial court finds, after a full discussion on
the record, that the defendant's election to proceed
without counsel is knowing, intelligent and voluntary.
The defendant elects to have trial counsel continue
representing the defendant for purposes of
postconviction review and specific findings are made
including by keeping trial counsel the defendant waives
the right to raise ineffective assistance of counsel.
This bill provides that in appointing new postconviction
counsel, the trial court shall appoint one or more attorneys at
least one of whom meets the qualifications set forth in this
bill.
This bill provides that in any case in which the trial court
appoints new postconviction counsel or new postconviction
counsel is retained, the new postconviction counsel shall not be
retained or appointed to act as co-counsel with trial counsel
and shall not be associated or affiliated with trial counsel.
New postconviction counsel shall exercise independent judgment
and act independently from trial counsel.
This bill provides that ineffectiveness of counsel during
postconviction review shall not be a basis for relief.
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This bill provides that at least one attorney appointed to
represent a defendant in proceedings governed by this chapter
shall have been admitted to practice in California or another
state for a total of five years and have at least three years
experience in the handling of appeals or postconviction
proceedings in felony cases. Experience in defense and
prosecution shall be considered equally for this purpose.
However, the court for good cause may appoint an attorney not
meeting the requirements whose background, knowledge, or
experience would otherwise enable him or her to properly
represent the defendant with due consideration to the possible
penalty and to the unique and complex nature of the litigation.
This bill provides that in any case in which a defendant has
been sentenced to death, this bill governs all post conviction
review.
This bill provides that the initial motion for post-conviction
review shall be filed within six months and shall state with
particularity the grounds upon which the defendant intends to
rely, including a statement of facts and citations of law. The
claims to be considered are to limited to those which could have
been grounds for relief on habeas corpus prior to the enactment
of this bill and cannot be made on appeal, allege ineffective
assistance of counsel or meet the criteria set forth for a
successive petition.
This bill provides that neither the defendant nor the
prosecution may file a motion for reconsideration or rehearing
of the trial court's ruling on the motion for postconviction
review. The granting or denying of a motion for postconviction
review under this section is a final order reviewable on appeal
by the California Supreme Court.
This bill provides that unless relieved by the Supreme Court,
postconviction counsel shall continue to represent the defendant
on appeal from trial court's grant or denial of the motion. If
the direct appeal is completed, postconviction counsel shall
concurrently evaluate whether the defendant has a substantial
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claim of ineffective assistance of appellate counsel, and if so,
file a habeas corpus petition for that claim in the Supreme
Court.
This bill provides that a motion shall be dismissed if it is not
filed within six months of the appointment of counsel unless one
or more of the following apply:
The failure to raise the claim in a timely initial
motion was the direct result of interference by government
officials with the presentation of the claim in a manner
which violated the Constitution or laws of the United
States or California.
The facts upon which the claim are based were unknown to
the defendant and could not have been ascertained by the
exercise of due diligence, and the defendant has a
substantial claim that he or she is actually innocent.
The right asserted by the defendant is a constitutional
right that was recognized by the U.S. or California Supreme
Court, the constitutional right applies retroactively to
the defendant's case, and the motion is filed within 90
days of the date of the decision, or, if retroactively is
not clearly established at the time the right is
recognized, within 90 days of the decision making it
retroactive.
Clear and convincing evidence establishes that the
defendant is actually innocent of the offense.
This bill provides that before a successive motion is filed, the
party shall apply in the Supreme Court for an order authorizing
the Superior Court to consider the motion.
This bill defines specified terms in the bill.
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This bill applies retroactively to persons sentenced to death
prior to the effective date of the bill, unless a habeas corpus
petition was filed prior to the effective date.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity
remains nearly exhausted as prisons today continue to be
operated with a significant level of overcrowding.<1> A year
ago, the Legislative Analyst's office summarized the trajectory
of California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<2>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
--------------------
<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007); see
also, court orders, infra.
<2> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
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disrupted by the resulting lockdowns.<3>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
The federal court has appointed a receiver to take over the
direct management and operation of the prison medical health
care delivery system from the state. The crisis has continued
to escalate and, in July of last year, the federal court
established a three-judge panel to consider placing a cap on the
number of prisoners allowable in California prisons. It is
anticipated that the court will reach its decision this year.
In his order establishing the judicial panel, Judge Thelton
Henderson stated in part:
It is clear to the Court that the crowded conditions
of California's prisons, which are now packed well
beyond their intended capacity, are having - and in
the absence of any intervening remedial action, will
continue to have - a serious impact on the Receiver's
ability to complete the job for which he was
appointed: namely, to eliminate the unconstitutional
conditions surrounding delivery of inmate medical
health care.
. . . (T)his case is also somewhat unique in that even
Defendants acknowledge the seriousness of the
overcrowding problem, which led the Governor to declare
a state of emergency in California's prisons in October
2006. While there remains dispute over whether crowded
conditions are the primary cause of the constitutional
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<3> Analysis 2007-08 Budget Bill, supra, fn. 1.
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problems with the medical health care system in
California prisons, or whether any relief other than a
prisoner release order will remedy the constitutional
deprivations in this case, there can be no dispute that
overcrowding is at least part of the problem. . . .
The record is equally clear that the Receiver will be
unable to eliminate the constitutional deficiencies at
issue in this case in a reasonable amount of time
unless something is done to address the crowded
conditions in California's prisons. This Court
therefore believes that a three-judge court should
consider whether a prisoner release order is warranted
. . . . (Hon. Thelton Henderson, Order dated July 23,
2007 in Plata v. Schwarzenegger (N.D. Cal) No. C01-1351
TEH (citations omitted).)
Similarly, Judge Lawrence Karlton stated:
There is no dispute that prisons in California are
seriously and dangerously overcrowded. () The
record suggests there will be no appreciable change
in the prison population in the next two years.
(Hon. Lawrence K. Karlton, Senior Judge, United
States District Court, Order dated July 23, 2007 in
Coleman v. Schwarzenegger (E.D. Cal.) No. S90-0520
LKK JFM P (citations omitted).)
This bill does not appear to aggravate the prison overcrowding
crisis.
COMMENTS
1. Need for This Bill
According to the author:
Currently on death row, there is a backlog of at
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least 122 defendants, if not more, who have not been
assigned counsel to represent them in the automatic
appeal process required by state law. Death row
inmates wait an average of four to five years before
either the Supreme Court can appoint a private
attorney to take their case or the Office of the
State Public Defender (OSPD) can assign staff counsel
to take their case.
While indigent defendants languish for years on death
row without counsel, the case gets stale, memories
fade, witnesses or counsel die, and files get
misplaced. This situation is not fair to either the
defendant or to the victim's family, and places a
greater burden on state resources in compensating for
the consequences of delay.
In the mid-1990s, the California State Legislature
passed SB 513 (Lockyer), as well as other legislation
reforming aspects of the death penalty process, to
provide for legal representation of indigent death
row inmates to reduce the backlog of capital cases
and to begin to comply with federal requirements for
expedited federal habeas corpus procedures. To this
end, SB 513 created the California Habeas Resource
Center (HRC) to employ up to 30 attorneys to
represent indigent death row inmates in habeas corpus
proceedings, as well as authorized OSPD to hire 15
additional staff attorneys.
Almost eight years later there has only been a slight
decrease in the backlog. While there are many
reasons for the lack of significant progress intended
by SB 513 (i.e. budget cuts to OSPD, unwillingness of
private counsel to take cases, etc.), the Legislature
needs to reassess the state's current approach,
pinpoint its shortcomings, and recommit to addressing
the backlog problem.
2. Eliminating State Habeas in Death Penalty Cases
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This bill creates a new system of review for cases where the
sentence of death has been imposed which seems to attempt to
take the place of the writ of habeas corpus in those cases.
a. Constitutional
By eliminating habeas corpus, this bill expressly
conflicts with the California Constitution which provides:
Habeas corpus may not be suspended unless
required by public safety in cases of rebellion
or invasion. (Cal. Const., art. I 11.)
CAN A STATUTE TAKE AWAY THE RIGHT TO HABEAS CORPUS?
IS THIS SECTION CONSTITUTIONAL?
b. Must be filed in 6 months
This bill calls the review it creates "post-conviction"
review. It must be filed with the trial court within six
months of the appointment of counsel, which according to this
bill must occur "at a hearing to be held after the date upon
which the sentence of death is imposed." How long "after the
date upon which the sentence of death is imposed" is not
stated, so in theory it could be indefinitely, but practically
since the defendant must be present it seems likely it would
occur before the defendant is transferred to death row. The
"post-conviction" review is limited to issues that can
currently be through a writ of habeas corpus.
The Habeas Corpus Resource Center (HCRC) notes that:
Proposed section 1509.7(a) requires that, with
narrow exception, an initial motion for
post-conviction relief be filed with the trial court
within six months of the appointment of counsel.
This extraordinarily short briefing schedule will
further complicate efforts to recruit counsel to
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represent death-sentenced prisoners. Moreover, the
bill applies equally to cases with very brief
records and those with enormously long records, to
those with a single special circumstance and those
with multiple special circumstances, to those with
one statutory aggravator and those with many. This
impracticable timeliness requirement is directly
contrary to the stated goal of providing competent
capital post-conviction representation. Moreover,
proposed Chapter 1.5 does not address a timeline for
record correction. Under the proposed bill,
"post-conviction review" counsel will presumably be
forced to brief errors without the benefit of a
complete record.
The ACLU agrees stating:
Currently, habeas corpus petitions in death penalty
cases must be filed within two years of the appointment
of counsel. SB 636 would establish a six-month filing
deadline. Given the length of the record in capital
trials, it would be impossible for a competent attorney
to comply with this deadline. Death penalty trials are
exceedingly complicated. One recent trial in Alameda
County lasted for more than 18 months. Simply reading
the record in a case such as this requires a
substantial amount of time; fully investigating the
possible claims for relief takes even longer.
Moreover, evidence of innocence typically does not
surface until years after the trial. According to the
Death Penalty Information Center, the average wait for
exoneration for innocent people on death row is nine
years. Reducing the filing deadline to six months will
prevent any meaningful review of death penalty cases
with the inevitable result that innocent people will be
executed.
Subsequent petitions or untimely petitions are restricted
to:
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The failure to raise the claim in a timely
initial motion was the direct result of
interference by government officials with the
presentation of the claim in a manner which
violated the constitution of laws of the United
States or California.
The facts upon which the claims are based were
unknown to the defendant and could not have been
ascertained by the exercise of due diligence, and
the defendant has a substantial claim that he or
she is actually innocent.
The right asserted by the defendant is a
constitutional right that was recognized by the
U.S. or California Supreme Court, the
constitutional right applies retroactively to the
defendant's case, and the motion is filed within 90
days of the date of the decision, or, if
retroactively is not clearly established at the
time the right is recognized, within 90 days of the
decision making it retroactive.
Clear and convincing evidence establishes that
the defendant is actually innocent of the offense.
It is not clear that a defendant who initially waived his or
her right to review could find an attorney and file a claim
within 90 days of a Supreme Court decision. For example, this
would have required a defendant who is mentally retarded to
realize the decision in Atkins v. Virginia (2002) 122 S.Ct.
applied to him or her, get counsel, and have the counsel be
able to get the documents such as medical records, school
records, employment records and conduct any interviews that
might prove the retardation, in time to file a petition.
HCRC also expresses concerns about the narrowness of the
exceptions to the six-month deadline:
[A]defendant who discovers evidence at a time later
than the filing deadline which would entitle him or
her to relief from judgment or penalty cannot bring
that information before the court unless he or she
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can also demonstrate actual innocence of the crime
of conviction by clear and convincing evidence.
Given the severely truncated timeline proposed for
post-conviction review, the scenario of new facts
arising after the filing of a motion for
post-conviction review is likely. Moreover, a
defendant will be denied relief in cases in which
new facts arise but do not pass the due diligence
test because the post-conviction attorney was
ineffective, also a likely scenario in light of the
proposal to allow unqualified attorneys to represent
capitally sentenced clients.
The bill also explicitly precludes a claim that goes only
to sentence or degree of offense when allowing a person to
file a claim that shows they are "actually innocent." In
a death penalty case, claim going "only to sentence or
degree of offense" can mean the difference between life
and death.
IS IT APPROPRIATE TO TAKE A MOTION THAT CURRENTLY TAKES TWO
YEARS OR MORE AND MUST BE FILED IN THE SUPREME COURT AND
REQUIRE IT BE FILED WITHIN SIX MONTHS IN THE SUPERIOR COURT?
IS IT POSSIBLE FOR A PERSON TO FILE A CLAIM WITHIN 90 DAYS
OF A COURT DECISION RECOGNIZING SUCH A CLAIM?
SHOULD SUBSEQUENT CLAIMS GOING TO "SENTENCE OR DEGREE OF
OFFENSE" WHICH COULD MEAN THE DIFFERENCE BETWEEN LIFE IN
PRISON AND DEATH, BE EXPLICITLY NOT ALLOWED TO BE BROUGHT IN
A SUBSEQUENT PETITION?
c. Post-conviction relief to be filed in the superior
court
This bill would require a person sentenced to death to
file for postconviction relief in the court that imposed
the sentence. Postconviction relief may be based on a
bias or mistake by the trial judge, prosecutorial
misconduct and incompetence of counsel. It is unlikely a
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person will get any real relief before the court that
committed the bias or mistake or who tolerated
prosecutorial misconduct or did not step in when a defense
attorney was incompetent. The Eighth Amendment mandates a
meaningful review for capital cases and it seems unlikely
that such review would be considered meaningful.
CAN A REVIEW BY THE COURT THAT IMPOSED THE SENTENCE OF DEATH
BE A MEANINGFUL REVIEW AS REQUIRED BY THE EIGHTH AMENDMENT?
d. Requirement of immediate waiver or intention to
pursue
At the hearing following sentencing the judge is to inform
the defendant of his or her right to postconviction review
and appoint counsel and at that point the defendant has to
state an intention to pursue the review or waive his or
her right to it. If the defendant does not state an
intention to pursue review, the judge shall state on the
record that waiver was knowingly, voluntary and
intelligent.
While the defense attorneys and prosecutors in the
underlying case will be present, the defendant will have
no independent counsel at this point. The ACLU notes
that after having just been sentenced to death, a
defendant "is almost always emotionally distraught,
frequently unable to make decisions of this nature."
The defendant may at this time choose to have the trial
counsel continue with the case. It is unclear what this
would do to a county public defender caseload and would
not assure that the attorney who handled the trial is
competent to handle an appellate case. HCRC further
notes that if a defendant chooses to maintain trial
counsel:
. . . he or she must waive any challenge to the
effective assistance of trial counsel. These
sections make clear that, contrary to the purported
purpose of ensuring the accuracy, completeness, and
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justice of the review proceedings and allowing for
the full and fair examination of all legally
cognizable claims, this bill seeks to expedite
executions by permitting defendants who received
substandard representation during their capital
trials to be put to death without review of that
deficient representation. Ineffective assistance
of trial counsel is one of the biggest problems
plaguing death penalty cases and the claim for
which relief is granted most often. A proposal
that prevents courts from reviewing such claims is
alarming. The bill also makes no provision for
separate counsel to advise newly death-sentenced
inmates as to the wisdom of waiving ineffective
assistance of counsel claims, leaving them to rely
on the advice of their trial counsel, a
circumstance entailing an inherent conflict of
interest.
CAN A DEFENDANT KNOWINGLY WAIVE THE RIGHT TO REVIEW WITHOUT THE
ADVICE OF COUNSEL?
IS A PERSON JUST SENTENCED TO DEATH COMPETENT TO MAKE A DECISION
REGARDING WAIVING HIS OR HER RIGHT TO REVIEW?
COULD A COUNTY PUBLIC DEFENDER'S OFFICE HANDLE BEING MAINTAINED AS
COUNSEL FOR POSTCONVICTION REMEDIES?
IF THE DEFENDANT MUST WAIVE THE RIGHT TO THE ISSUE OF THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL, IS THIS MEANINGFUL REVIEW?
3. Appointment of Counsel
This bill statutorily changes the standards for appellate
counsel in a death penalty case and provides for appointment of
counsel by the trial court not the Supreme Court in the newly
created postconviction review.
a. Standards
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Under existing law the standards for appellate and habeas
counsel in a capital case is set by the Judicial Council and
the Supreme Court. First, because of the separation of powers
issue, while the Legislature can request that the Court
promulgate rules it is not clear that the Legislature can
mandate what those rules must be.
Next, this bill significantly reduces those standards.
Existing Rules of Court require specified criminal felony
appellate experience, including death appeal experience as well
as familiarity with the Supreme Court and its practices and
procedures. This bill reduces the standards to allow only 3
years of practice in felony appeals or postconviction
proceedings but does not specifically require any experience in
the complex issues of a capital case. The bill also says that
prosecution experience should be considered in the same manner
as defense experience, where actually the skills one develops
as a prosecutor are not identical to those of a defense
attorney. HCRC is also concerned about the standard mandated
in this bill stating:
The bill would result in the appointment of previously
unqualified counsel, by definition less experienced in
post-conviction capital defense than those certifiable
under current standards, to represent clients in an
environment providing them less time and more
restrictions than that in which their more experienced
colleagues have worked. Reducing the minimum
competency standards for lawyers eligible to represent
capital appellants and petitioners in order to ensure
that every capital defendant is represented, regardless
of whether that attorney is qualified to carry out the
representation competently, violates principles of due
process and equal protection. California Rules of
Court Rule 8.605 currently permits the California
Supreme Court to appoint counsel in capital habeas
cases only if it has determined "that the attorney has
demonstrated the commitment, knowledge, and skills
necessary to competently represent the defendant."
Subsection (a) alters these minimum standards and
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merely requires a total of five years experience
practicing law in any state, three of which include
handling appeals or post-conviction proceedings in
felony cases. The bill fails to require that this
felony experience include representation of clients in
serious felony cases or taking the cases to completion.
Under the provisions of this bill, a lawyer from
another state with no practicing knowledge of or
experience with California law and having represented
low-level felony clients, such as those convicted of
simple possession of narcotics offenses, can begin
representation of death row inmates as soon as he or
she passes the California bar.
The bill further decreases the qualifications of
attorneys by declaring prosecution and defense
experience to be fungible. By these terms, a lawyer
whose sole experience was as a prosecutor might receive
appointment to represent a capitally sentenced prisoner
in post-conviction proceedings immediately upon leaving
the district attorney's office. Proposed subsection
(b) allows an attorney who cannot meet the
significantly reduced qualifications set forth in
proposed subsection (a) to represent capital clients if
the Court finds the attorney's background, knowledge,
or experience would otherwise enable him or her to
properly represent capital clients. Although Rule
8.605 contains provision for alternative qualification,
the bar to qualification for non-capital defense
attorneys is significantly lowered by implementation of
the reduced qualifications in proposed subsection (a).
Moreover, unlike the current alternative qualification
provision, proposed subsection (b) does not require
available ongoing consultation from assisting counsel,
completion of Supreme Court-approved training and
continuing education in criminal appellate or habeas
corpus defense, familiarity with the practices and
procedures of the California Supreme Court and the
federal courts in death penalty-related habeas corpus
proceedings, or proficiency in issue identification,
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research, analysis, writing, investigation, and
advocacy.
CAN THE LEGISLATURE SPECIFICALLY REQUIRE THE SUPREME COURT TO
ADOPT A STANDARD FOR COMPETENCY WITHOUT VIOLATING SEPARATION OF
POWERS?
SHOULD THE DUTY TO SET THE STANDARDS FOR APPELLATE COUNSEL IN A
CAPITAL CASE REMAIN WITH THE SUPREME COURT AND THE JUDICIAL
COUNSEL?
WHAT EFFECT WILL CHANGING THE STANDARDS HAVE ON A PERSON
RECEIVING MEANINGFUL REVIEW?
b. CAP attorneys required to take capital cases
The California Appellate Projects help supervise attorneys who
handle non-capital criminal appeals. This bill would require
those attorneys to apply to handle a capital appeal or
postconviction review appeal within six months of meeting the
standards for counsel set forth in this bill. This does not
seem workable. The attorneys who do these cases, who do not
already do capital appeals, often do CAP briefs as just a
portion of their practice or as something they do on the side
or in retirement. Some would not be considered qualified
under existing standards. Others would not want to make the
time and emotional commitment that a capital case entails,
especially since this bill provides that once appointed as
postconviction counsel the person must continue to represent
the defendant unless relieved by the Supreme Court.
The ACLU believes that:
If this provision is adopted, the predictable result
will be that attorneys will simply refuse to handle
any criminal appeals at all. The vast majority of
appointed criminal appellate attorneys are solo
practitioners who are not qualified to handle a death
penalty case. Moreover, the cost to the individual
practitioner off handling a death penalty case may be
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exorbitant. Individual practitioners forced to choose
between forgoing all criminal appeals and taking a
death penalty case that they cannot afford to handle
and are not qualified for will almost certainly choose
the former. Attorneys cannot be forced to risk
financial collapse or malpractice.
DOES IT MAKE SENSE TO REQUIRE CAP ATTORNEYS TO DO CAPITAL
APPEALS?
WHAT ARE THE UNFORSEEN CONSEQUENCES IN MAKING ALL CAP ATTORNEYS
DO CAPITAL APPEALS?
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c. Appointment by superior court
Under existing law, the Supreme Court appoints habeas counsel.
This bill would have the superior court appointing
postconviction counsel using the standards discussed above.
It also seems to encourage the appointment of the trial
counsel as the postconviction counsel. Trial counsel would
have an inherent conflict on any ineffective assistance claim
and as the ACLU points out, no competent trial counsel would
accept such an appointment, yet this bill encourages that.
Furthermore, the court appointing the counsel just heard the
case. This seems to raise a potential conflict also.
SHOULD THE SUPERIOR COURT APPOINT THE COUNSEL FOR THE
POSTCONVICTION PROCEEDINGS?
IS IT APPROPRIATE TO ALLOW TRIAL COUNSEL TO BE RETAINED AS
POSTCONVICTION COUNSEL?
4. Changing HCRC's Board
HCRC is run by an executive director who is appointed by a five
member board and confirmed by the Senate. The board is
appointed by each of the Appellate Projects. This bill changes
the board to a seven member board with each Supreme Court
Justice making an appointment. The reason for this change is
unclear.<4> In the prior introduction of this identical bill,
SB 378 (Morrow) 2005, the author argued that it is to increase
---------------------------
<4> The version of SB 1088 (Lockyer) that went to Conference
Committee in 1997 had a three member board appointed by the
Governor, the Pro Tem and the Speaker. The issue of who shall
get the appointments and in which branch of the government the
board should reside was raised at the Conference Committee. The
version leaving the Conference Committee had the board make-up
as it currently exists and that language was put into SB 513
(Lockyer) on 9/10/97. SB 513 was subsequently chaptered.
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HCRC's accountability to the Supreme Court, however staff has
never heard that the Supreme Court has a problem with HCRC being
unaccountable, in fact it has been staff's understanding that
HCRC and the Supreme Court has had a good working relationship.
In fact, in a March 24, 2005 letter to the author of SB 378,
Beth Jay, the principal staff attorney to the Chief Justice
suggested the expansion of HCRC, as well as OSPD, which would
seem unlikely if they felt that HCRC needs more oversight from
them. HCRC states:
This amendment would shift the responsibility of appointing
the members of the Board from the five Appellate Projects in
the State of California to the seven Justices of the
California Supreme Court. Section 68665(b) currently
provides for the appointment of Board members by the
Appellate Projects because the Appellate Projects are the
entities best positioned to identify those individuals in the
criminal defense community most qualified to serve on the
Board of the HCRC. The purpose of the Board is to ensure
that the HCRC provides high-quality representation to death
row inmates in California as well as high-quality training,
assistance, and mentoring to private capital habeas corpus
counsel. Because the mandate of the HCRC is to provide
direct representation to capitally sentenced petitioners
before the California Supreme Court, it is important that the
agency function, and appear to function, independently from
the Court. Having the Board appointed by members of the
Court would compromise that independence.
WHY CHANGE HCRC'S BOARD?
DOES APPOINTMENT BY THE SUPREME COURT FOR A BOARD THAT OVERSEES
AN AGENCY THAT BRINGS CASES BEFORE THE COURT CREATE AN
APPEARANCE OF IMPROPRIETY AND COMPROMISE THE INDEPENDENCE OF THE
OFFICE?
5. Increase in OSPD and AG
This bill statutorily increases the positions in OSPD to 127
with 67 of those positions being attorneys. In 1998 when HCRC
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was created, OSPD was authorized for 128 positions. In budget
year 2002-2003 OSP was cut to their current 81 positions. The
office could use additional positions, assuming qualified
people could be found. The numbers in this bill however do not
make sense, 60 support positions for 67 attorney positions
seems disproportionate - 80-90 attorney positions would be more
reasonable. The bill should also be clear that the positions
should be available but filled only if qualified applicants are
available.
Along with the increase in positions for the OSPD, this bill
increases by six the criminal division of the AG, but there is
no corresponding change in the HCRC. It is likely that the
author did not increase HCRC because of the new postconviction
review created in this bill. However, without the elimination
of habeas in this bill, any increase in the OSPD would need a
parallel increase in HCRC or the system would become more
imbalanced. Any increase with the hope that there will be more
cases handled should also trigger an increase in Supreme Court
personnel to handle the increased cases. As Beth Jay, the
principal staff attorney to the Chief Justice said in her March
24, 2005 letter to the author "Providing counsel for defendants
on death row is, of course, only part of the story. Three
components are integral to the system of appellate review of
death penalty matters: defense counsel, counsel from the
Attorney General's Office, and staff for the Supreme Court.
Strengthening one component must be accompanied by similar
adjustments to the other two in order to be effective."
IF OSPD IS STATUTORILY MANDATED TO INCREASE STAFF, WHAT IS THE
APPROPRIATE SUPPORT STAFF TO ATTORNEY RATIO?
IF THE OSPD IS MANDATED TO HAVE A SPECIFIC NUMBER OF ATTORNEYS,
SHOULD IT ALSO BE CLEAR THAT THE POSITIONS SHOULD ONLY BE FILLED
BY QUALIFIED APPLICANTS?
IF OSPD AND THE AG ARE GIVEN ADDITIONAL PERSONNEL, SHOULDN'T
HCRC AND THE SUPREME COURT ALSO GET ADDITIONAL PERSONNEL?
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