Chief Justice Speech - January 10, 2008

TESTIMONY BEFORE THE COMMISSION ON THE FAIR ADMINISTRATION OF JUSTICE
SACRAMENTO, CALIFORNIA
JANUARY 10, 2008
CHIEF JUSTICE RONALD M. GEORGE

Good morning. I want to thank your Chairman, the Honorable John Van de Kamp, and your Executive Director, Professor Gerald Uelman, for inviting me to address the Commission today at this hearing focused on the fair administration of the death penalty in California. I intend to confine my remarks to issues arising out of the California Supreme Court’s handling of appeals and related habeas corpus proceedings in capital cases and will be pleased to respond to questions at the conclusion of my prepared remarks.

As I wrote in an opinion piece that appeared Monday of this week in the Los Angeles Times: “Thoughtful individuals on both sides of the death penalty debate should be able to agree on one thing: The existing system for handling capital appeals in California is dysfunctional and needs reform. The state has more than 650 inmates on death row, and the backlog is growing.”

I would add that all of us at this hearing today should be in agreement that the current system is not functioning effectively, although there may be some who are not inclined to do anything to remedy the years of often unproductive delay that occur under the current system — delay that results in part from state court proceedings and in part from federal court proceedings.

Before I begin, I thought it might be helpful to place my comments in context. As Chief Justice of California, I serve in several capacities, one of which is Chief Justice of the Supreme Court itself. In that capacity, I preside over the court’s administrative conferences. My vote in administrative matters, as is true in the decisions of our court, is but one of seven. The proposal that I shall be discussing today has been adopted unanimously by all the members of our Supreme Court; it is not mine alone.

This proposal does not, and properly cannot, reflect the view of any justice for or against the death penalty — a matter that lies within the province of the people and their elected representatives. Nor would the justices consider it appropriate to address the merits of any proposals to alter the scope of the death penalty in California.

As Chief Justice of California, I also have responsibilities that extend to the overall statewide administration of justice by the judicial branch. Thus, by way of recent example, and pursuant to express authorization contained in Article VI, section 6, of the California Constitution, I assigned a team of experienced jurists to sit in Riverside County to address a critical backlog in criminal matters. In any given year, I make hundreds of such assignments, and I mention this authority to emphasize that seeking to enhance the timely and effective administration of justice in our courts is an integral part of my role as the head of the California court system.

For some time, the justices of the Supreme Court have become increasingly disturbed about growing delays in death penalty appeals and habeas corpus proceedings pending in our court. I stress that these concerns arise not out of the quality of the court’s work in capital matters, but rather from the increasing pressures that are beginning to undermine the court’s essential role in the administration of civil and criminal justice in this state.

The mere size of California’s judiciary is a contributing factor. Ours is the largest court system in our nation, far surpassing the federal courts nationwide in the number of judicial officers. There are more than 2,000 judges, commissioners, and referees working in our superior courts, and 105 justices of the six Courts of Appeal. There are seven Supreme Court justices — a number that has remained constant since 1879.

Historically, automatic death penalty appeals constituted 5 to 10 percent of the Supreme Court’s docket, but in the past two decades this figure has risen to 20 to 25 percent. During the same period, the number of petitions filed yearly in our court in civil and criminal cases has more than doubled to more than 9,000 petitions.

In recent years, the Supreme Court has issued approximately 110 to 120 opinions each year — 70 percent more than the output of the 9-justice United States Supreme Court. Today, some 20 to 25 of our court’s annual opinions are in death penalty appeals and, to a lesser degree, related habeas corpus petitions. Each death penalty appeal takes substantially more time for preparation and review than do most other matters before the Supreme Court.

Nor does the total number of opinions reflect the additional burden of lengthy and complex habeas corpus petitions, most of which do not result in written opinions, but all of which give rise to lengthy internal memoranda. These require a substantial expenditure of the court’s resources. We usually issue a final determination in 30 or more of these habeas corpus matters each year as well.

There can be no doubt that the demands upon the Supreme Court from every source have increased over the years since the death penalty was reinstated in California in 1977. In response, the court has taken many steps to improve the handling of death penalty matters. In the early 1990’s, staff attorneys were added to each justice’s chambers staff. In 2002, a central staff dedicated to death penalty cases — motions, appeals, and habeas corpus proceedings — was created and recently was expanded to 10 persons. Designated staff in the clerk’s office focus on the preparation of the record, briefing schedules, and the payment of counsel in capital matters.

In addition to expanding internal resources to meet growing demand, the court also focused on attracting and appointing qualified counsel — and on ensuring that, once appointed, counsel proceed in a timely and effective manner. Court staff for several years have held ongoing meetings with the defense agencies engaged in death penalty appeals and related habeas corpus matters. As a result of these meetings, the court has ensured speedier payments to counsel, expedited and enhanced oversight of record correction, improved its supervision of the briefing process, adjusted payment schedules and time lines, and adopted numerous other measures to assist qualified counsel.

We have met with some success in our attempts to recruit more attorneys to represent defendants in these cases — and have been aided by the decreased number of death judgments arriving at the court. The number of inmates on death row without counsel on appeal now stands at 79 from a high of approximately 170 a few years ago. An additional 201 inmates, however, have appellate counsel but no habeas corpus counsel. The present backlog of 80 automatic capital appeals that are fully briefed and ready for preparation of a calendar (or bench) memorandum and oral argument demonstrates some progress. However, this reduction in the backlog of unrepresented capital defendants also illustrates the old caution: “Be careful of what you wish for” — the greater success we have in appointing counsel, the more the backlog of briefed capital cases will grow, joining the backlog of briefed civil and non-death-penalty criminal cases awaiting decision by our court.

We continue to work to eliminate the far more intractable number of defendants lacking legal representation in habeas corpus proceedings. During the last legislative session we finally succeeded in obtaining adoption of a statutory amendment that doubles to $50,000, the maximum statutory amount the court may pay for investigation in habeas corpus matters prior to the issuance of an order to show cause.

I have been describing two relevant and related backlogs that cause delay. The first is the number of death row inmates who lack legal representation either for the appeal or for the related habeas corpus proceedings, or who have counsel only on appeal. The second is the backlog of cases fully briefed and ready for oral argument and for decision. The Supreme Court’s recent proposal, which I shall discuss more fully in a few minutes, is directed at the second backlog — cases ready for consideration by the court.

The court, and I personally, have been advocates for alleviating the problem of insufficient counsel for many years. But there are obvious limits on what the court alone can accomplish. The fundamental factor is money — and the court, indeed the entire judicial branch, must look to the legislative and executive branches to provide appropriate and sufficient resources. I know these are hard truths in a difficult budget year.

The system’s capital caseload has been affected by cutbacks over the past several years that have substantially diminished the number of attorneys authorized for the Office of the State Public Defender. The Habeas Corpus Resource Center also labors under a cap on the number of attorneys it may hire, and thus is limited in how it can allocate its resources.

And although we have obtained some additional funding for the California Appellate Project and for increasing the fees payable to private counsel, further augmentation of these fees (as well as habeas corpus investigation funds) would be very helpful in reducing the backlog of unrepresented capital defendants.

Every year, when I meet personally with the Governor and with Legislative leadership on the subject of the judicial branch budget, I stress the need for adequate funding for these defense agencies — and for the Attorney General’s Office as well — arguing that the death penalty process will continue to suffer dysfunction as long as any part of the system — court, prosecution, or defense counsel — remains inadequately funded or staffed.

I now shall turn to the proposal recently made by the court, which addresses the second category of backlog — cases ready for consideration by the court. As I mentioned earlier, although the Supreme Court has steadily issued between 20 and 25 opinions in death penalty cases for a number of years, it no longer can keep up with the increasing number of fully briefed appeals in capital cases while performing its core function of resolving questions of statewide importance in civil and criminal matters.

Moreover, in addition to these capital appeals, there are approximately another 100 fully briefed habeas corpus petitions pending before our court. As this Commission knows, habeas corpus petitions are filed to present claims based upon information not contained within the appellate record. Typical claims allege ineffective assistance of trial counsel based upon everything from failure to investigate an alibi or mental capacity defense to failure to present available mitigating evidence during the penalty phase of the trial. Other issues commonly raised may arise from claimed Brady violations (asserting that the prosecution improperly withheld exculpatory evidence) or from the use of an in-custody informant as a prosecution witness during trial.

Although the court does not issue a written opinion in most of these habeas corpus matters, extensive memoranda of 50 to 100 pages are prepared, circulated, and considered internally. Delay in processing these capital habeas corpus matters also is a cause for substantial concern.

Some federal courts have raised constitutional concerns regarding the significant delays between completion of the briefing in automatic appeals and habeas corpus matters, and our court’s disposition of individual cases. The problem is an urgent one.

The basic statistics I have recited demonstrate that even if the Supreme Court were to become solely a death penalty court and were to completely put aside proceedings related to all civil and criminal matters other than capital appeals and related habeas corpus petitions, it probably would take a minimum of three to four years to process the existing backlog of death-penalty-related appeals and habeas corpus petitions. During that time, petitions for review in other types of cases would continue to be filed, and additional death penalty and other cases would become fully briefed. The backlog would continue to grow, and the systemic costs of this narrow focus on death penalty cases would be profound.

A Supreme Court focused solely on death penalty matters would of course place the orderly administration of justice in California in grave peril. The Supreme Court, as the highest court in California, serves as the ultimate arbiter in deciding matters of state law. If the Supreme Court cannot fulfill that role, California — its people, its government, its economy, its public safety — all would suffer.

Irreconcilable differences in the opinions rendered by our intermediate appellate courts, and the lack of an available forum to decide major questions of law needing prompt and definitive resolution, would create lingering uncertainty for individual and institutional litigants, the business community, and the lower courts. Every American jurisdiction has a court that provides the last word on the law of the state, and if the California Supreme Court cannot serve that basic function, our state will be at a grave disadvantage.

The proposed constitutional changes are designed to avoid placing the court in the position of seeing cases — capital, non-capital criminal, and civil — languish unreviewed long after briefing has been completed. Our court is positioned at the apex of a judicial-branch pyramid with a rapidly expanding base that results in more and more matters pressing to the top. More staff cannot change the court’s structure — ultimately seven individual Justices still must decide each case.

The fundamental question confronting all of us is what can be done to enable the court to continue playing its essential role in deciding important issues, while ensuring that death penalty appeals and related matters receive the appropriate careful consideration they require. The court believes that its proposal would effectively diminish the backlog of briefed cases — while guaranteeing that death penalty appeals are afforded comprehensive review in both the Courts of Appeal and the Supreme Court.

You will be hearing from Judge Arthur Alarcón, with whom I have co-chaired the California State-Federal Judicial Council — a body that has lent years of study concerning how to improve the capital case process on both the state and the federal side. Judge Alarcón has lengthy experience and long-held interest in improving the processing of death penalty matters, and in his recent article in the Southern California Law Review proposed that the Courts of Appeal directly review death penalty appeals in the first instance. I fully endorse Judge Alarcón’s call for additional funding for counsel, the holding of more evidentiary hearings in state habeas corpus proceedings, and providing for continuity in legal representation between state and federal habeas corpus proceedings.

The Supreme Court’s proposal takes an approach somewhat different from Judge Alarcón’s very fine contribution. Our proposal would permit the Supreme Court to transfer fully briefed appeals to the Courts of Appeal (no more than 30 cases in the first years), rather than requiring the appeal to be filed directly in the intermediate court. There are two major reasons for making the transfer at that point: first, the Supreme Court has existing internal expertise among attorney and clerk’s office staff in the handling of the many pre-briefing proceedings that occur in these cases, including motions relating to preparation of the record and requests for extensions of time. Keeping these preliminary matters at the Supreme Court means that the individual Courts of Appeal will not have to develop similar expertise in-house, and that these administrative issues can be handled consistently and efficiently.

The second important reason for designating full briefing as the time a transfer may be made is that it will permit the Supreme Court to retain and decide those cases in which there is an issue of statewide concern requiring immediate resolution by the highest court.

The transfer of death penalty appeals to the Courts of Appeal will not require those courts to understand vast new areas of previously unexplored legal territory. These courts already handle cases in which special circumstances are alleged and found, and the prosecution either has not sought the death penalty or has been unsuccessful in obtaining such a judgment — resulting in the imposition of a sentence of life imprisonment without the possibility of parole. Issues novel to the intermediate appellate courts would emanate solely from the penalty phase.

This is not to say that the briefing of all issues arising in a capital case typically is not more complex and lengthier than what transpires in cases in which the death penalty has not been imposed. Nevertheless, the fundamental issues and analyses arising out of the guilt phase and the special circumstance findings will be familiar ground for appellate court justices.

As to all issues, including those relating to the penalty phase, the Courts of Appeal will have available some 30 years of California and United States Supreme Court decisions to guide their deliberations. The Courts of Appeal are well-versed in applying settled law to varying factual situations. And my reference to settled law is not meant to imply that the transfer of a case to the Court of Appeal implicitly suggests that the Supreme Court views the particular defendant’s appeal as lacking merit; it could be quite clear that — under settled legal principles (for example, Batson-Wheeler law governing improper jury selection procedure) — reversal is required.

Moreover, the decision of the Court of Appeal in any capital case would not be the final chapter in the state court process. Under the proposed plan, either side — prosecution or defense — must file in the Supreme Court a “statement of grounds for reversal of the judgment of the Court of Appeal” or a statement that no grounds exist. As explained in the Commentary to the proposal, the precise outlines of this statement will be defined by rule, but we anticipate such a statement would provide a roadmap to challenges to the Court of Appeal’s determinations that would assist the Supreme Court in evaluating whether or not the decision of the intermediate appellate court should be affirmed.

The action taken by the Supreme Court on these statements will differ dramatically from the court’s normal practice when considering petitions for review arising after a decision on appeal by the Court of Appeal. Typically, in deciding whether to grant review of the lower court’s decision, the Supreme Court considers whether there is a conflict among the Courts of Appeal or an important issue of statewide importance. Our court does not grant review simply to correct error, nor could we, given the volume of petitions we receive.

In contrast, in reviewing the decisions of the Courts of Appeal in death penalty cases, the plan contemplates that the Supreme Court will consider whether there is an “error affecting the judgment.” As explained in the overview to the Commentary to the proposal, that consideration includes determining that the result is legally correct and that there is consistency among the Courts of Appeal in the disposition of harmless error issues and other capital-case claims. Error in the proceedings leading to a death judgment should be reviewed by the Supreme Court even if the error does not present an issue of statewide importance or a conflict in the law.

I am aware that some observers have suggested that the Supreme Court will not afford meaningful review to these cases, and that death penalty jurisprudence will be essentially at the mercy of the disparate approaches of the six Courts of Appeal. To the contrary, the proposal provides two discrete and in-depth levels of appellate review. Once the Court of Appeal has issued its decision, we anticipate that the statements filed by counsel will help focus the Supreme Court’s attention on the significant issues in each particular case. Despite this second review, we are confident that under the plan the overall delay in resolving capital appeals would be reduced.

Of course, the Court of Appeal’s written analysis is available to the Supreme Court in noncapital appeals in which it grants review. The court almost invariably finds these decisions to be of assistance in its own consideration of the issues — even when my colleagues and I find ourselves in complete disagreement with the lower court’s approach and conclusion. We anticipate a similar benefit to be conferred by the decisions of the Courts of Appeal in death penalty matters, not to mention the benefit conferred by relieving the Supreme Court of the necessity of writing an analysis of every issue from scratch, no matter what its merit.

Some commentators have raised concerns about geographic differences among the Courts of Appeal. In the normal course of events, if a particular appellate court persists in a different — and inappropriate — approach to applying settled law, the Supreme Court has not hesitated to grant review to correct that court’s practices. In some instances, depublication of opinions has been employed — but that will not be available for death penalty appeal opinions, all of which will continue to be published. Instead — in the unlikely event it appears that the districts of the Courts of Appeal are employing widely divergent approaches — the proposal specifically envisions that the Supreme Court will grant review to ensure consistency.

I recognize that concerns have been raised that defendants’ habeas corpus rights under federal law may be jeopardized by the transfer of an appeal before habeas counsel has been appointed, and that such concerns should be dealt with. This need not and should not be placed in the constitutional amendment, but instead can be dealt with in the Rules of Court by recognition of shell petitions and of the need to appoint habeas counsel in transferred cases. The need for such safeguards will be recognized in additions to the Commentary to our proposal.

It should be noted that variances in practices among local prosecutors and trial courts in the 58 counties of the state may result in the appellate court in one district reversing or affirming death penalty judgments at a rate different from that of its counterparts in other districts. This type of variation in practice would not alone necessarily warrant a grant of review, just as it may not undermine a death judgment automatically reviewed by the Supreme Court under the current system.

After consideration of the lower court’s opinion and the statement of grounds filed by the losing party, the Supreme Court will have three options: first, it may conclude that all or some of the issues raised require the court’s consideration, and therefore order briefing, set the case for oral argument, and ultimately issue a written opinion. The court may summarily affirm the case, however, if it concludes that no legal error appears and that the Court of Appeal’s opinion presents no important issue of law, conflict, or inconsistency among the Courts of Appeal. Finally, if a summary affirmance order is filed, a justice who disagrees with that disposition may file a concurring or dissenting opinion that will be published with the order affirming the judgment.

Others have maintained that only the highest court should be given the responsibility of directly reviewing cases in which a death sentence has been imposed. However, in contrast, the high courts of other states with a relatively small number of capital cases are not overwhelmed with an accumulation of hundreds of death judgments as are the seven justices of the California Supreme Court. The plan proposed by our court guarantees significantly more high-court review of capital cases than occurs for the dozens of cases presently in the federal death penalty system, in which the intermediate appeals court has the final word in almost every case.

It cannot be overemphasized: There is no easy one-step “cure” for the dysfunctionality of the death penalty appeals system so long as the people of our state continue to exercise their option to have the death penalty available in certain cases. Even so, some things are clear: sufficient funding must be provided to ensure that counsel can be appointed in a timely fashion. Lengthy periods during which defendants on death row lack legal representation should not be tolerated. In my view, increasing the resources of the Office of the State Public Defender and the Habeas Corpus Resource Center offers the best hope for eliminating that part of the delay emanating from the lack of appointed counsel. At the same time, the needs of the Attorney General’s Office, the courts, and necessary private counsel cannot be ignored.

The two backlog problems must not be looked at in isolation. If increased resources for counsel are made available and we then are able to appoint counsel the day after a judgment of death is entered, and yet no change takes place in the appellate process, the result will be more and longer delays in the resolution not only of death penalty cases, but of legal issues crucial to the development of civil and criminal law in California. On the other hand, if the process is changed, but additional resources for counsel and the courts are not provided, then the problems caused by the delayed appointment of counsel will only grow. And doing nothing at all will result in the growth of both backlogs, until the system falls of its own weight.

There is one final area that I wish to touch upon. I have mentioned the backlog of briefed petitions for habeas corpus, as well as the number of individuals on death row without habeas corpus counsel. The California Supreme Court for decades appropriately has guaranteed the appointment of counsel for the purpose of filing a habeas corpus petition in a death penalty case, even though the U.S. Supreme Court has held that the provision of counsel in such matters is not constitutionally required. Our court’s inability to appoint counsel in a timely fashion in habeas matters may have a number of consequences. Not only may petitions be delayed, but because of Congressional enactments that often have shifted federal time frames, delays in appointing state counsel may have an adverse effect on the ability of a defendant to raise claims in federal court.

At the same time, the large number of petitions ready for the court’s determination concerning whether an order to show cause should issue, illustrates the existing problem of delay that has developed in cases in which counsel has been appointed, and highlights the added pressure placed on the court by capital habeas petitions.

Trial courts, the Courts of Appeal, and the California Supreme Court all have concurrent jurisdiction to entertain petitions for writs of habeas corpus. About 20 years ago, the Supreme Court concluded that the best way to ensure consistency in the provision of resources and the making of decisions involving death-penalty-related habeas corpus petitions would be for our court to agree to pay for legal representation and related expenses only in cases in which counsel was appointed by the Supreme Court and the petition was filed in that court.

In every other jurisdiction, capital habeas corpus proceedings can be initiated in the trial court, as is generally true in non-death-penalty cases. The result of the Supreme Court’s chosen procedure has been the development of a very paper-intensive habeas corpus system in California, with extensive documentation prepared for every claim. This is so even if the court ultimately decides that a particular claim, even if valid, would not warrant habeas corpus relief. After carefully reviewing the lengthy briefs and extensive exhibits, the court rarely issues orders to show cause, a circumstance decried not only by the defense bar, but also by the federal courts, which are concerned that our essentially summary written orders disposing of these matters do not provide sufficient information for them to accord appropriate deference to our court’s determinations.

Although I do not yet have a specific proposal from the Supreme Court to offer you regarding the handling of capital habeas corpus petitions, we hope to develop one in the next several months. I do know that any changes — and they do not require a constitutional amendment — must be made only after thoughtful and comprehensive consideration. Any attempt at a “quick fix” will likely create only additional confusion and further delay that potentially could adversely affect not only the rights of defendants, but also the interests of the friends and families of victims, as well as the administration of justice overall.

We are at a point now at which choices must be made and expectations adjusted accordingly. I would prefer that fundamental changes to our capital justice system be made with the benefit of full vetting by the Legislature rather than by voter initiative. The present system, which places death penalty review directly and exclusively in the Supreme Court, is not working. Without substantial adjustment, we are faced with two possibilities.

One is that the Supreme Court can devote the vast majority of its resources solely to reducing the backlog of fully briefed capital-case-related matters. Doing so would put an indefinite stranglehold on the court’s ability to fulfill its fundamental role in our government — namely, to resolve important statewide issues of law and settle conflicts in legal interpretation among the lower courts.

The other option is to continue as we are, watching the backlog grow further beyond the ability of the court to keep up with it, prolonging further the resolution of capital cases. Doing so will exacerbate the frustration of families and friends of victims awaiting finality, and increase the frustration of defendants seeking vindication.

Either path weakens the fundamental ability of the Supreme Court to provide definitive decisions not only in death penalty matters, but in all cases warranting the court’s consideration. A legal system that cannot provide finality ultimately undermines the rule of law.

The proposal we have made to change the capital appellate process takes a practical approach to ensuring that death penalty appeals are closely considered and reviewed at both the Court of Appeal and Supreme Court levels. By vesting the Supreme Court with the authority to transfer capital appeals — authority that it has with regard to every type of civil and criminal case except death penalty appeals — while retaining oversight of the complex pre-briefing stage in our court, and providing expanded consideration when a statement of grounds is filed challenging the Court of Appeal’s determination, the Supreme Court can best monitor these cases and ensure that they are handled properly, efficiently, and consistently.

The necessary resources to implement this transfer should not be overwhelming: they include, of course, additional staff for the Courts of Appeal. We are in the process of attempting to evaluate those needs with the assistance of the Administrative Presiding Justices of the Courts of Appeal, who have been supportive of our proposal and with whom we also are working on developing an appropriate method of allocating among the six appellate districts those capital appeals transferred from the Supreme Court.

To the extent the proposed changes impose more burdens on counsel for the defense and the prosecution and the appellate courts, more funding must be made available for the agencies and individuals handling these cases. If California chooses to have a functioning death penalty process, it must devote sufficient resources to that endeavor. As I have noted, if these resources are not provided, we may be able to diminish the backlog of fully-briefed matters, but we will be left with a backlog in death row-inmates without counsel.

In short, no part of the capital post-judgment process can be changed without full consideration of the impact on the remainder. My Supreme Court colleagues and I look forward to hearing the Commission’s recommendations following the productive dialogue that I anticipate will occur at today’s hearing and subsequent hearings.

At this time, I would be pleased to answer any questions you may have.