U.S. Courts Brace for Deluge of Appeals of State Death Sentences

Although the state Supreme Court is affirming death sentences at a record pace, the arduous process of capital appeals is far from over for condemned prisoners.

The spotlight now is shifting to the federal court system, where authorities are preparing for a deluge of cases as Death Row inmates raise new challenges that could take months or even years to resolve.

Federal judges in California have adopted new procedures to try to avoid a logjam in the flow of appeals that each come with voluminous records and complex issues. In addition, officials and legal groups are scrambling to find enough lawyers to represent prisoners in the next round in court.

At the same time, prominent jurists and other authorities are concerned about the time it is taking to conclude the cases. They wonder how the death penalty can have any deterrent effect when an appeal can last more than a decade--and how the delay affects public confidence in the judicial system.

“I do not favor a rush to the gallows,” Chief Justice Malcolm M. Lucas, co-chairman of an American Bar Assn.-sponsored task force studying capital appeals, said in a recent speech. “But I am troubled by the protracted journey through post-conviction review, both in terms of the toll on the justice system itself as well as on our society’s perception of that system.”

Similar concern over delay and confusion in the capital appeal process was voiced last week by U.S. Chief Justice William H. Rehnquist and Gov. George Deukmejian.

But for defense lawyers, taking a lot of time with a case is a small price to pay for ensuring that a sentence of death has been justly rendered.

“If people just want to speed up executions, we could do away with the whole criminal justice process,” said Michael D. Laurence, director of the American Civil Liberties Union of Northern California Death Penalty Project.

“The fact that it’s slow and cumbersome may tell us how fair our system really is,” Laurence said. “The purpose is to make sure people are not improperly deprived of liberty or life--and that means not killing anyone until we are certain their constitutional rights have not been violated.”

Meanwhile, nearly 12 years after the Legislature reinstated capital punishment, no execution appears imminent in California. By recent count, there are 233 prisoners on Death Row. The state high court under Lucas has upheld 47 death sentences in 66 capital rulings since 1987--compared to four affirmances in 68 rulings by the court under former Chief Justice Rose Elizabeth Bird. The appeal of Robert Alton Harris, a convicted San Diego murderer whose capital case is the most advanced procedurally in California, remains before the U.S. 9th Circuit Court of Appeals, where Harris is seeking a rehearing from a ruling last July upholding his death sentence.

If the rehearing is denied and a later appeal to the U.S. Supreme Court is turned down, Harris could be executed this year. But authorities are quick to point out that the appeal could go on much longer.

“This case has been going on for over 10 years,” said state Deputy Atty. Gen. Michael D. Wellington. “This makes the third year running that we’ve said California could have its first execution within a year.

“I can pound the table and complain about delay. But it needs to be understood that this is the lead California case in the federal system--and as such it is going to attract a lot of close attention and be slower to proceed than the rest,” Wellington said.

Briefs Requested

In the latest development in the case, the appeals court has asked lawyers to file briefs on the question of whether the jury improperly considered evidence of mental disorder as a factor favoring a sentence of death for Harris, rather than life in prison.

“This is an important question and an issue that could eventually affect a lot of cases,” said Charles M. Sevilla, a San Diego attorney representing Harris. “We say such evidence cannot be used as an aggravating factor against a defendant, just as evidence of a physical disease, such as leukemia, cannot be used against him.”

Under California’s capital punishment law, death sentences rendered in the trial courts are appealed automatically to the state Supreme Court.

A death sentence that is affirmed is routinely appealed to the U.S. Supreme Court. If review is denied, as it almost always is, a new round of appeals begins.

Condemned prisoners can file petitions for a writ of habeas corpus in state courts, raising such issues as inadequate trial counsel or newly discovered evidence that were not raised on direct appeal. Again, a final plea for review can be made to the U.S. Supreme Court.

When those efforts are exhausted, habeas corpus proceedings can be started in the federal court system, alleging violations of federal constitutional rights. If the prisoner again is unsuccessful all the way to the high court, further last-ditch appeals can be made in state and federal courts and, if all else fails, he can ask the governor for clemency.

The federal district courts in California and the appeals court that includes the state began bracing themselves for an influx of capital cases when it became evident that the state high court under Lucas was far more inclined to uphold death sentences than the court under Bird.

Scope of Challenges Narrowed

At the same time, the U.S. Supreme Court was disposing of the last broad constitutional challenges to the death penalty. That left defense lawyers largely limited to raising narrower challenges in appeals on a case-by-case basis.

A special 19-member committee of judges, lawyers and officials was formed under U.S. District Judge Lawrence K. Karlton of Sacramento to lay the groundwork for processing the appeals in the federal courts. At present, only a handful of cases have made it to the federal system, but authorities expect up to 40 federal habeas corpus actions to be filed within a year.

“It was clear a large number of cases were going to be coming into the federal courts and, obviously, there were going to be major problems,” Karlton said. “When you’re dealing with something as complex as the death penalty, you have to take steps to ensure efficient review.”

In recent months, federal judges have adopted rules that allow capital cases to be heard in district courts nearest to where the inmate was convicted, thus assuring that cases will be spread throughout the system. If cases were to be heard only in the courts near San Quentin state prison, where Death Row prisoners are held, the district court in San Francisco could be overwhelmed, officials feared.

Procedures also were adopted to assure that a stay of execution will always be granted to hear an appeal unless that appeal is clearly baseless. In addition, steps were taken to ensure that court officials, attorneys and prison authorities will be promptly informed when any decisions are issued or when execution dates are set or subsequently suspended.

One of the most pressing problems has proved to be obtaining continued court-appointed legal representation for indigent prisoners whose death sentences have been upheld by the state Supreme Court and who now are ready to move into a new phase of appeals in the state and federal courts.

While the U.S. Supreme Court has yet to declare there is a constitutional right to counsel in such appeals, lawyers are guaranteed to California prisoners as a matter of policy. Court-appointed lawyers now are being paid $75 an hour for handling capital appeals.

At present, about 25% of the court-appointed attorneys representing prisoners are dropping out after death sentences are upheld by the state high court, according to Michael G. Millman, director of the California Appellate Project, a nonprofit group formed to find and assist lawyers in capital cases in the state.

‘No Longer Available’

“We’re not yet sure of the full scope of the difficulty,” Millman said. “But we do know that a significant number of counsel are no longer available, and we’re going to have to find replacement counsel.”

The California Appellate Project now is working with judges, lawyers and Bar organizations throughout the state to find attorneys who are willing and qualified to take on capital appeals.

The concern about adequate legal representation is shared by state prosecutors, who prefer that the lawyer who represents a capital defendant on direct appeal stay on the case in subsequent habeas corpus actions to ensure continuity in the proceedings.

“Every time a new counsel is substituted for the old counsel, you can estimate conservatively that it will add another year to the process,” said state Chief Assistant Atty. Gen. Steve White.

“We’re always concerned about delay,” White said. “Thus far, our experience has been that whatever length of time we anticipate for an appeal to be decided, it will always take longer.”