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California: Justices skeptical about death sentence appeal deadlines

California's death row
California's death row
California Supreme Court justices considering whether a ballot measure to speed up executions is unconstitutional expressed skepticism Tuesday about a provision that would require death sentence appeals to be completed within five years.

Several justices peppered a lawyer from the attorney general's office about how the deadline could be met without radically altering the court system and whether there would be consequences for failing to meet it or whether it was merely aspirational.

"So it's a mandatory deadline that's toothless?" Justice Leondra Kruger asked.

The ultimate goal is to meet the deadline, Deputy Attorney General Jose Alfonso Zelidon-Zepeda said, but he conceded it's not enforceable.

Supporters of Proposition 66 downplayed the deadline as not being a critical piece of the law that aimed at reforming a dysfunctional system that hasn't executed a condemned killer in more than a decade. But death penalty opponents said it was a flip-flop from the language of the law in order to protect the measure from a constitutional challenge.

The measure passed by 51 % of voters in November would assign more lawyers to death sentence appeals and shift some appeals to trial court judges in an effort to speed up cases. It can now take 5 years to appoint a lawyer and an average of 15 years to complete appeals.

Supporters said the court could strike the 5-year time limit and still uphold the law, but death penalty opponents said the deadline was not merely a guideline - it was a critical piece of a false promise made to voters.

"The voters were promised that they could make death penalty cases happen faster and cheaper and without killing ... any innocent people," attorney Christina Von der Ahe Rayburn, who challenged the measure, argued. "The voters were promised a trifecta that everyone in this room, I believe, knows is not quite possible to achieve."

Foes of capital punishment argued that Proposition 66 was unconstitutional because it would strip the state's high court from deciding how it handles cases and it would disrupt the court system, cost the state more money and undermine the appeals process.

The state Judicial Council, which sets policy for the courts, would have the burden to put changes in place that would affect trial courts and both levels of appeals courts. Justice Goodwin Liu asked how such changes would take effect with no plan in place and how many cases the high court would have to hear per year to get through a backlog of more than 380 appeals.

"That is a massive delegation of power to reorganize a third branch of government," Liu said. "One would expect that if legislation were to do that the legislation should make clear ... what trade-offs are needed to be made so that can be enacted into law. Not an aspirational goal that just says, 'Come as close as you can to five years and you guys go figure it out.'"

Zelidon-Zepeda, who was frequently interrupted, said cases should be handled as quickly as possible and it was important to let the measure take effect to see how it works.

The ballot initiative was designed to "mend not end" capital punishment in California, where nearly 750 inmates are on death row and only 13 have been executed since 1978.

A competing measure to repeal capital punishment lost at the polls by a slightly wider margin. Both sides acknowledged the current system is broken.

"The one thing everybody agreed on was that the status quo was unsatisfactory," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, who also argued in support of Proposition 66. "What they're asking to do is override the voters and keep the status quo."

Even before all the votes were counted and the reform measure was declared a winner, challengers went to court to block it.

Ron Briggs, a former pro-capital punishment supervisor from El Dorado County whose father wrote the ballot measure that expanded California's death penalty in 1978, brought the measure with former state Attorney General John Van de Kamp, a longtime death penalty opponent, who died in March.

The challengers also targeted Proposition 66 for violating a requirement that a ballot measure only cover a single subject.

They said it appealed to voters by incorporating unrelated elements that would allow condemned inmates to be housed more cheaply at prisons other than San Quentin and would require a percentage of inmate pay to go toward victim restitution.

But that issue got short shrift and Justice Kathryn Werdegar said the court allowed ballot measures to embrace a wide range of subjects. Historically, the court has given wide latitude to the will of the voters and shot down most challenges to ballot measures.

The 7 justices must rule within 3 months.

Chief Justice Tani Cantil-Sakauye and Justice Ming Chin, both members of the Judicial Council, which is a defendant in the case, recused themselves.

They were replaced by Court of Appeal justices from Sacramento and Orange counties, who were less active in the arguments.

Source: Los Angeles Times, June 7, 2017


State Supreme Court skeptical about key death penalty provision


California's death chamber
California's death chamber
A 5-year deadline "may not be achievable without radically changing the ability of the courts to carry out their functions," said Justice Leondra Kruger.

A central feature of a ballot measure aimed at speeding up executions in California - its requirement that the state Supreme Court decide all death penalty appeals within 5 years - got an apparent thumbs-down from the court's justices Tuesday and drew little support even from the measure's defenders, who sought to recast the mandate as a nonbinding guideline.

It was far less clear, however, whether the court planned to strike other provisions of the wide-ranging initiative, Proposition 66, which won in November with a 51 % majority while the voters were also rejecting a rival measure, Proposition 62, to repeal the state's death penalty law.

Condemned prisoners in California now wait more than 20 years, on average, for a final ruling on their appeals. Prosecutors and crime-victims' groups who backed Proposition 66 told voters the measure would cut that period in half by requiring faster court action, limiting some types of appeals, and requiring more lawyers to accept capital cases.

One of its provisions said the state's high court, which hears the appeals required by law in every death sentence, "shall" rule within 5 years of sentencing, more than twice as fast as its current pace. The same 5-year deadline would apply to the 2nd-stage appeals known as habeas corpus, which often focus on claims of misconduct by prosecutors or jurors and inadequate representation by defense lawyers.

At a hearing Tuesday in Los Angeles on a lawsuit seeking to overturn the entire measure, several justices suggested that such a timetable, if binding, would be unconstitutional.

California has long been what 1 expert calls a "symbolic death penalty state," 1 of 12 that has capital punishment on the books but has not executed anyone in more than a decade. Prodded by voters and lawsuits, the nation's most populous state may now roll back toward allowing executions, though observers are split on how quickly they will resume, if at all.

A 5-year deadline "may not be achievable without radically changing the ability of the courts to carry out their functions" in any cases other than death penalty appeals, said Justice Leondra Kruger.

Defenders of the measure countered that, despite the wording of Prop. 66, the 5-year timetable was not mandatory. Deputy Attorney General Jose Zelidon-Zepeda noted that Prop. 66 did not specify any consequences, such as dismissal of the appeal, if the court took longer than 5 years to decide it.

"What the measure was trying to do was speed up the process" and encourage the court to eliminate unnecessary delays, Zelidon-Zepeda said. He noted that Prop. 66 directs the state Judicial Council to propose methods to handle capital cases more quickly and efficiently.

"That is a massive delegation of power to reorganize the 3rd branch of government," said Justice Goodwin Liu.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation and one of the authors of Prop. 66, told the court that a 5-year timetable was achievable and that California courts were more willing than courts in other states to postpone death penalty hearings at defense lawyers' requests. But he said the ballot measure "does acknowledge that the goal will not always be met."

The justices seemed skeptical - "So it's a mandatory deadline that's toothless?" asked Kruger - but they also questioned the contention by opponents of Prop. 66 that eliminating the deadline should invalidate the entire measure.

The lawsuit was filed by the late John Van de Kamp, a former state attorney general, and Ron Briggs, a former El Dorado County supervisor whose father, state Sen. John Briggs, R-Fullerton (Orange County), sponsored the 1978 ballot measure that established the current death penalty law.

They argued that Prop. 66 violated a state constitutional rule limiting initiatives to a single subject - a position that drew no apparent support from the justices Tuesday - and that the 5-year deadline, and other provisions, interfered with judicial authority and reduced safeguards against wrongful death verdicts.

"The voters were promised that they could make death penalty cases happen faster and cheaper and without killing ... any innocent people," said the plaintiffs' lawyer, Christina Von der Ahe Rayburn.

Noting that the court has a backlog of nearly 400 capital cases, Rayburn said Prop. 66 was drafted to require rulings within 5 years - in "very mandatory" language - and that it was uncertain that the voters would have passed it if they had been told the timeline was merely advisory.

But Liu told Rayburn that the willingness of Prop. 66's defenders to recast the mandate as a guideline "removes a central pillar of your argument." "There's still a lot more to it," he said of the ballot measure.

Another provision seeks to reduce delays in capital cases by requiring defense lawyers to handle death penalty appeals if they accept other court assignments to represent criminal defendants. Rayburn argued that only the state's high court is authorized to set standards for lawyers in death appeals, now handled only by lawyers with experience in death penalty or other murder cases.

Another change would eliminate the authority of a state administrative agency to review the legality, after considering public comment, of California's proposed procedures for executions by a single drug, replacing the former 3-drug procedure.

A ruling in Briggs vs. Brown, S238309, is due within 90 days.

Source: San Francisco Chronicle, June 7, 2017

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