The End of an Era

by Gerald F. Uelmen

From July 1, 2009, to June 30, 2010, the California Supreme Court published 96 opinions, adding 2,957 pages to the Fourth Series of California Reports. Sifting through these pages, a reader is haunted by two contrasting images. The first is of a dynamic court confronting exciting new challenges with bursts of creative energy, to build new spires to guide the lower courts. The second is of a besieged judiciary, flooded with death penalty appeals, that barely holds back the torrent by filling sandbags. Both images involve phenomenal judicial resolve, but when will the drudgery of filling ever more sandbags completely sap the vigor and enthusiasm of the aging justices? The surprise announcement in July of Chief Justice Ronald M. George's retirement may be the first of several departures marking the end of the George Court. (Indeed, until the chief's announcement, five of the court's seven justices had served together for 14 years, an all-time record.)

The governor acted quickly to replace George, within a week naming Associate Justice Tani Cantil-Sakauye from the third appellate district in Sacramento to succeed him. She was expected to be confirmed last month and will appear on the November statewide ballot.

Despite the air of real change in the Supreme Court's chambers, one daunting reality remains the same: Death penalty appeals continue to dominate the workload.

The Death Docket
This year capital cases consumed 1,369 of the new pages, about 46 percent of the court's total output.

The justices affirmed 21 of the 22 death judgments that came up for review, and all but one of the affirmances were unanimous. Yet the crushing backlog on the death docket was barely diminished: Seventy-seven death appeals and 89 habeas petitions - all fully briefed - remain on the court's calendar, where a two-year wait still separates the filing of final briefs from oral argument. Meanwhile, California prosecutors delivered 29 more capital convictions in 2009, bucking the national trend of declining use of the death penalty. The state now houses 702 inmates on San Quentin's death row.

The lone reversal came in People v. Butler (47 Cal. 4th 814 (2009)). While awaiting trial for the 1994 murder of two college students, Raymond Oscar Butler stabbed a fellow jail inmate to death. After he was convicted and sentenced to death for the students' murder, he demanded the right to represent himself in the still-pending trial for the inmate's killing. The trial court granted his request, but because he was deemed dangerous to other inmates he was denied access to the law library and his right to self-representation was revoked. The state Supreme Court had affirmed his death sentence for the murder of the college students, but it reversed his conviction and death sentence for the inmate's murder, concluding that a defendant's right to self-representation is absolute. Justice Carol Corrigan wrote the 5?2 majority opinion, with Justices Marvin Baxter and Ming Chin dissenting. This decision means that Butler will get another trial in superior court; he's already bound for another trip to the high court for a habeas petition challenging the conviction for the college students' murder. If he is again convicted and sentenced to death for the inmate's killing, there will be yet another direct appeal and another habeas review by the justices. Once Butler's state appeals and habeas petitions are exhausted, he can seek relief in federal court. At the current pace, it likely will be 2035 before the court sets an execution date.

The case reprised another startling example of the delays besetting California's administration of the death penalty: People v. Burgener (46 Cal. 4th 231 (2009)), decided in May of last year. Michael Ray Burgener, now 60, was sentenced to death in 1981 for a murder committed during a robbery in 1980. Nearly 30 years later, his appeals have not yet concluded. The court noted that its ruling was the fourth published opinion on appeal, and added, "it may not be the last." (46 Cal. 4th at 233.)

Burgener's court history is a repetitive and seemingly never ending story. In 1986 his death sentence was reversed because of ineffective assistance of counsel at the penalty phase. The case was remanded for a new penalty hearing, at which the trial judge sentenced him to death but later modified his ruling to life in prison. However, that modification was reversed by the court of appeal after the prosecution sought review. On remand, the case was assigned to a new judge, who yet again sentenced Burgener to death. Twelve years later, the California Supreme Court reversed that ruling, because the judge failed to exercise his independent judgment. On the third remand, that same judge again imposed the death penalty after the defendant waived counsel and agreed to represent himself. On appeal, the Supreme Court once again vacated the death judgment, concluding that the record was insufficient to show that the waiver of counsel was knowing and intelligent.

The case was then remanded for hearing on modification of the death sentence - to be heard by yet another trial judge - because the second trial judge had died. Thus, after 28 years, Burgener's direct appeal is still pending. Only when it is resolved will state habeas corpus proceedings commence. The odds are that it will be at least another ten to twelve years before all proceedings in state and federal courts have been resolved. At that point, Burgener will be 70 years old. His confinement on death row will have cost the state of California $3.68 million more than if he'd been sentenced to life without parole.

Perhaps cases like Butler and Burgener are what Chief Justice George had in mind when he called the administration of California's death penalty "dysfunctional."

Declining Dissent Rates
Continuing the trend noted last year, the court's overall dissent rate was a minuscule 3.8 percent. That's the share of cases in which at least one justice voted against the majority result, either writing a separate opinion or joining the dissenting opinion of another justice. The leading dissenter was Justice Carlos Moreno, who parted company with the majority in eight cases. Justice Joyce Kennard was second with only five dissenting votes. Chief Justice George registered a single rare dissent, joining Justices Moreno and Kathryn Werdegar to protest the outcome of Boeken v. Philip Morris USA, Inc. (48 Cal. 4th 788 (2010)). In that case, a majority led by Justice Kennard affirmed the res judicata dismissal of a wrongful death action against the cigarette manufacturer after a prior loss-of-consortium claim was dismissed with prejudice. The dissenters argued that a cause of action for nonfatal injuries resulting in loss of consortium is distinct and separate from a later-accruing wrongful death action if the injuries result in a spouse's death.

Boeken was one of only two cases that split the court 43. The other saw the chief justice aligned with the majority against dissenting Justices Baxter, Chin, and Corrigan. In Pearson Dental Supplies, Inc. v. Superior Court (48 Cal. 4th 665 (2010), Justice Moreno authored the majority opinion carving out a narrow exception to the general rule that arbitration awards are not subject to judicial review, even for errors of law. The case arose when an employee subject to a mandatory arbitration agreement lost his case after the arbitrator plainly misapplied a tolling provision and ruled that the claim was time-barred.

Construing Initiatives
Proposition 83, popularly known as Jessica's Law, was enacted by the voters in 2006. It subjects convicted sexually violent predators to an indefinite commitment unless they prove they are no longer dangerous. It also imposes stringent limits on where registered sex offenders can live, prohibiting residence within 2,000 feet of a school or park. Defendants challenged these provisions in two cases, both of which were decided by 52 margins.

In People v. McKee (47 Cal. 4th 1172 (2010)), a majority led by Justice Moreno ruled that violent sex offenders must be treated the same as persons subject to civil commitment under other statutes where the state has the burden of justifying continued confinement, unless the state can prove that sexually violent predators present a substantially greater risk to society. Justices Baxter and Chin dissented. Then, in In Re E.J. (47 Cal. 4th 1258 (2010)), a majority led by Baxter held that new parole restrictions on the residency of sexual offenders could be applied retroactively to previously paroled convicts. Justices Moreno and Kennard dissented.

In two unanimous decisions, the court construed the provision in California's Constitution that prohibits the amendment of initiatives by statute. In People v. Kelly (47 Cal. 4th 1008 (2010)) - in which I represented the defendant - the court struck down statutory limits on the amount of medicinal marijuana a patient could possess, finding that the restrictions were an impermissible amendment of Proposition 215 (the Compassionate Use Act adopted by initiative in 1996). And in People v. Superior Court (Pearson) (48 Cal. 4th 564 (2010)), the justices concluded that 1990's Proposition 115 was intended to limit only pretrial discovery and thus had no bearing on statutory provisions for discovery in post-conviction habeas corpus proceedings.

Compare and Contrast
Two cases before the California justices involved hot-button issues also before the U.S. Supreme Court. In Caperton v. A. T. Massey Coal Co. (129 S. Ct. 2252 (2009)), the federal high court ruled that the due process clause required the disqualification of a member of the West Virginia Supreme Court whose election campaign benefited from a litigant's $3 million contribution. In People v. Freeman (47 Cal. 4th 993 (2010)), meanwhile, a unanimous California Supreme Court rejected a litigant's claim that a trial judge's refusal to recuse himself violated her constitutional right to due process. The court found that Marilyn Freeman's case did not come close to the "extreme facts" presented by Caperton.

In another closely watched case this term, the U.S. Supreme Court ruled that it was reasonable under the Fourth Amendment for a police department to examine its employees' private use of the department's computers and pagers, despite a supervisor's implied assurance that such use would remain private (City of Ontario v. Quon, 130 S. Ct. 2619 (2010)). But in Hernandez v. Hillsides, Inc. (47 Cal. 4th 272 (2009)), the state Supreme Court, construing California's constitutional right to privacy, unanimously concluded that a private employer's use of video surveillance in an attempt to identify perpetrators of unauthorized computer access in a residential facility for neglected and abused children was not "sufficiently offensive or serious" to give rise to liability, even though a jury might find that it intruded on the employees' reasonable expectations of privacy.

In Conclusion
Though few lawyers will ever have occasion to read the "sandbags" with which the California Supreme Court is shoring up our death penalty law, these precedents will be applied and followed in all California criminal cases. Defense lawyers sometimes complain that so much of our criminal jurisprudence comes from opinions in capital cases, where the George Court's high affirmance rate skews the results. They suggest that in California, the phrase "death is different" really means that imposing a sentence of death actually increases the likelihood the verdict will be affirmed on appeal.

To illustrate the point, consider the results in criminal appeals. During the past year, the court reviewed 36 noncapital criminal appeals. In 28 of those (77 percent), the prosecution prevailed. But the rate goes up in death cases during the period covered by this article, 95 percent of the death judgments were affirmed.

That closely tracks the record for the entire 14-year history of the George Court. Since 1997, it has decided 279 death penalty cases and upheld the sentence in 251 of them (90 percent, a higher rate than any other state in the country). When these cases are reviewed by the federal courts via habeas corpus petitions, 62 percent are reversed. Thus, it is fair to say that for the George Court, death cases are different, but not so different in outcome from other criminal appeals.

As the chief justice retires, a crushing capital caseload continues to sap the court's energy.

Gerald F. Uelmen is a professor of law at Santa Clara University. Data for this article were compiled by Jordan Ciliberto, Class of 2010.

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