Brown appointees to Supreme Court renew hopes in death penalty cases

None of Gov. Jerry Brown's Supreme Court appointees have had prior judicial experience

On the day justices Mariano-Florentino Cuellar and Leondra R. Kruger were sworn in this month, the California Supreme Court issued a 4-3 ruling leaving in place a death sentence for a man with a long criminal record.

With Gov. Jerry Brown's newest appointees now on the court, the death row inmate plans to ask the justices to reconsider. If both new justices join the dissenters, the ruling could be overturned before becoming final.

"I am never optimistic," said Cliff Gardner, the lawyer for the condemned man. "On the other hand, it was a 4-3 decision, and the court is changing."

Past turnover on the state's highest court has led to some immediate, dramatic reversals. In the long run, the new composition could affect an array of cases, including medical malpractice and medical marijuana, but probably will be most felt in the criminal arena. The court, long dominated by former prosecutors, has affirmed about 90% of the death sentences it has reviewed. Criminal defendants rarely win.

"Brown certainly seems to have reshaped this court in a fairly dramatic way," said Jan Stiglitz, a co-founder of the California Innocence Project, which is representing a client in a case before the newly constituted court.

Instead of appointing former prosecutors, Stiglitz said, "Brown has brought in not just people from the outside but people who don't have this background that sort of predisposes them to be cynical in criminal cases."

But little experience in criminal law also can be a handicap, critics said.

Former prosecutors have "stared evil in the face and know what it looks like," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports the death penalty. None of the Brown appointees have had prior judicial experience.

"The academic view of criminal law is what produces bad decisions," Scheidegger said.

Cuellar, the court's only Latino, is a former Stanford law professor. Kruger, the only African American justice, has worked primarily in Washington, where she represented the federal government in cases before the U.S. Supreme Court. Justice Goodwin Liu, Brown's first appointee last term, was a law professor at UC Berkeley.

Cuellar and Kruger both asked questions and followed arguments closely when they attended their first hearing on the court this month. Cuellar was animated and eager, Kruger soft-spoken and serious.

Legal analysts expect the Brown justices may form a new majority with Justice Kathryn Mickle Werdegar, a moderate to liberal Republican appointee. Unlike the other Republican appointees, she was never a prosecutor. She worked for the federal government on civil rights matters and as staff attorney on appellate courts.

Werdegar was among the dissenters in the Jan. 5 death penalty ruling, which is technically still pending. Court decisions generally do not become final for 30 days, and the losing side may ask for reconsideration. Such requests are routinely denied — except in times of court turnover.

"I would not be surprised if they decide to reconsider" the death penalty case, Santa Clara University School of Law professor Gerald Uelmen said. "And I base that on the precedent. It has happened before."

When new justices were added to the court in 1996, a 4-3 ruling that upheld a state law requiring minors to obtain a parent's permission for an abortion was not yet legally final. The newly constituted court decided to rehear the case.

One of the new justices joined the three dissenters, and the abortion law was struck down.

When conservatives replaced liberals after an election that ousted former Chief Justice Rose Bird and two colleagues, the new majority decided to reconsider a death penalty sentence the Bird court had just overturned. The conservatives issued a new ruling upholding the death sentence.

Courts are loathe to take such actions because "it highlights all too much how the content of the law may be determined by the membership of the court," UC Davis School of Law professor Vikram Amar said.

"We like to believe the law is this thing that exists independently of personality," Amar said. "And if courts rapidly changed course in a case that was just decided, it says to the public that it matters who is on the court."

And of course it does matter, he acknowledged.

"We change the meaning of law over time by changing the membership of courts," Amar said. "That is a reality, but that reality exists alongside this fiction that law is this objective thing."

In the 4-3 ruling Jan. 5, the majority of the California Supreme Court agreed to uphold the death sentence of Gary Lee Grimes, a Shasta County man who participated in a 1995 home invasion that resulted in the killing of Betty Bone, 98.

An accomplice who committed suicide had said he killed Bone — and only his DNA was found on a weapon. Regardless of who actually killed her, Grimes was legally subject to the death penalty.

The jury found him guilty. During a separate proceeding to decide whether Grimes should be sentenced to death or life without parole, the trial judge excluded testimony that would have shored up evidence that Grimes was not the actual killer.

Chief Justice Tani Cantil-Sakauye, writing for the majority, said the excluded evidence would not have changed the jury's mind about the death sentence.

"We conclude that the exclusion of … statements regarding defendant's lack of participation in the killing was harmless beyond a reasonable doubt," Cantil-Sakauye wrote.

Werdegar, Liu and another justice assigned temporarily to fill a court vacancy said the excluded testimony should have been permitted.

The three justices would have upheld the guilty verdict but overturned the death sentence. The dissenters said testimony that Grimes did not perform the killing might have swayed the jury to spare his life.

Liu, until this month the only Democratic appointee on the court, may finally have enough votes to change the outcome in other cases as well.

He has expressed concern in minority opinions about the court's readiness to uphold verdicts in the face of racial bias in jury selection and to overlook legal errors as harmless.

Liu "probably is looking to build a consensus and become a leader of a working majority," UC Davis' Amar said.

That could come quickly in another case as well.

Liu wrote a dissent in a 4-3 decision in 2012 that upheld the murder verdict against William Richards, a San Bernardino man convicted of killing his wife, Pamela, in 1993. Richards, 65, was tried three times.

Juries were hung in the first two trials. In the third, a dental expert testified that a lesion on the body was a bite mark that matched Richards' unusual tooth pattern. The jury returned a guilty verdict. The expert later recanted, saying he had been mistaken.

In response to the case, the Legislature passed a bill that said discredited forensic testimony amounts to false evidence and is grounds for a new trial. The California Innocence Project has asked the California Supreme Court to consider the case again in light of the new law.

Two of the four justices who voted to uphold Richards' conviction are no longer on the court.

"It is our hope that the California Supreme Court is going to take this very seriously, and the other justices are going to see that Justice Liu's minority opinion is the one that should carry the day," said Alexander Simpson, associate director of the innocence group.

maura.dolan@latimes.com

Twitter: @mauradolan

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