LOS ANGELES (CBS SF/AP) — The fight over the death penalty never seems to die.
Even though it’s not yet certain if opponents lost both capital punishment ballot measures, they pre-emptively asked the California Supreme Court to block Proposition 66 that would speed up executions.
The first volley in what could be a protracted legal battle rankled death penalty supporters and could be a harbinger of a long road ahead if the reform measure goes into effect and shakes up the way appeals are handled.
Backers claimed victory with support on about 51 percent of more than 8 million ballots counted. But with millions of outstanding votes, it was still too close to call Friday.
“Proposition 66 was passed by the voters because they are sick of lawyers who oppose the death penalty constantly undermining the system with lawsuit after lawsuit,” said McGregor Scott, a former state and federal prosecutor who co-chairs the Yes on 66 Campaign. “It is not at all ironic, and is in fact a slap in the face to the voters, that their response to the passage of Proposition 66 was to file another lawsuit trying to thwart the will of the voters.”
With voters shooting down a measure that would have repealed capital punishment and leaning toward adopting the series of reforms to expedite appeals, they appeared to give a lifeline to the beleaguered death penalty that has sent 900 of California’s most vicious killers to death row in the past four decades but only resulted in 13 executions.
Proposition 66 would make procedural changes in how appeals are heard and who is qualified to represent condemned killers. Currently, the pool of appellate lawyers handling capital cases is small and inmates are sometimes not assigned counsel for more than five years after conviction.
The reform effort would expand that pool by assigning attorneys who currently handle other types of appeals to death penalty cases.
While the California Supreme Court would still hear direct appeals regarding errors at trial, appeals for claims such as newly discovered evidence, incompetent counsel or misconduct by jurors or prosecutors would be heard by the trial court. Those secondary appeals would have to be filed within a year of conviction instead of three, and all state appeals would have to be exhausted in five years.
The petition filed Wednesday with the California Supreme Court by former Attorney General John Van de Kamp and Ron Briggs, whose father wrote the ballot measure that expanded California’s death penalty in 1978, said the reform measure would disrupt the courts, cost more money and limit the ability to mount proper appeals. They said the deadlines would set “an inordinately short timeline for the courts to review those complex cases” and result in attorneys cutting corners in their investigations.
Death penalty opponents had claimed the reform measure would lead to the appointment of incompetent lawyers and tight deadlines would prevent appeals based on new evidence that can take years to unearth. Seven of the past 10 exonerations in the U.S. took 25 years or more to find evidence of innocence, attorney Barry Scheck said.
“What is going to happen when you have jerry-rigged system with lawyers that are not competent to do the job, with courts that are overburdened, with time limits that everything has to be done in 5 years?” asked Scheck, co-founder of the Innocence Project at Cardozo Law School in New York. “It could be a bloodbath.”
Proposition 66 supporters dismissed the challenge before the California Supreme Court as a frivolous stall tactic.
Kent Scheidegger, director of the Criminal Justice Legal Foundation who helped write Proposition 66, said it will take some time for the California Judicial Counsel to approve lawyers to handle such cases, but he said they would be competent. He said the current shortage of lawyers is due to the people controlling the appointment process who won’t consider well-qualified lawyers, such as former prosecutors, willing to handle appeals.
“Having anti-death penalty crusaders in charge of an important part of the process has been a big part of the problem,” he said.
Experts predicted extensive litigation over Proposition 66.
Sean Kennedy, a law professor at Loyola Law School and former federal defender who handled death penalty appeals, said the law seeks to speed up appeals like the federal Anti-Terrorism and Effective Death Penalty Act of 1996 did in U.S. courts.
Elements of that law are still being contested and he expects future challenges in California to argue on due process grounds that expedited appeals hamper meaningful review.
“I think California is very schizophrenic about the death penalty,” Kennedy said. “Majorities often support the death penalty … but people are concerned about being like Texas and having no real due process.”
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