‘Three Strikes’ and the Incredible Shrinking Judicial Courage

The “three strikes and you’re out” law has made the phrase “judicial courage” an oxymoron.

Last week, in Garcia vs. Superior Court, California’s 4th District Court of Appeal in Santa Ana asserted some much-needed judicial independence, thereby adding another wrinkle to the courthouse chaos created by the new law. The appellate court confirmed the right of a defendant with “strikes” to mount a “collateral attack” on his prior convictions.

Basically, a collateral attack runs something like this:

In 1985, Defendant “A” was accused of robbing two people standing along side each other. Because there were two victims, “A” was charged with two counts of strong-arm robbery. His lawyer requested a lineup; both victims identified “A” as the robber. Eventually, his case wound up in Courtroom 1, where the prosecutor was having a rough day. Because “A” had no previous record, she made his lawyer an offer: Plead guilty to one robbery (Count 1) for a state prison sentence of two years. After some pretrial conferences and motions, “A” bought the deal and went to prison.

The day after “A” ’s robberies, Defendant “B” commits an unarmed robbery of two people. Same time. Same place. Same prior records. Same circumstances. “B” gets sent to Courtroom 2, where the calendar is as crowded as that in Court-room 1. His lawyer, fearful of a bad result, does not make a lineup motion. A different prosecutor offers: Plead guilty to both robberies (Counts 1 and 2) and receive two years. “B” accepts.

Both felons are housed in similar cells in the same prison; they are released on the same day.

Virtually the same deal for the same crime, right? The factual differences are that one lawyer finagles a deal for his client to say “guilty” once, while the other is forced to cut a deal in which the defendant says “guilty” twice. Also, “A” had a lineup that turned out badly, while “B” had no lineup. “B” received no additional time for his second robbery count because the judge agreed to concurrent sentences as part of the deal.

It is now 10 years later, and voters have passed the “three strikes” law that radically increases sentences. By coincidence, within an hour of each other, “A” and “B” separately walk into the same store and both shoplift $1.89 packages of baloney. Eventually, both men find themselves in Courtroom 3 on the same day at the same time. Here comes the kicker.

“A,” who had a good deal-cutting lawyer and a prosecutor who was distracted, gets eights years because he has one prior “strike.” “B,” on the other hand, whose lawyer was slightly less persuasive, or whose prosecutor had gotten up on the wrong side of bed, gets 25 years to life, because he had two “strikes.”

So “B” ’s new lawyer, fully cognizant that his client is going to prison for life over shoplifting a package of baloney, collaterally attacks his prior convictions by attempting to persuade the current judge to set aside his client’s old plea of “guilty” because the previous lawyer malpracticed by not forcing the state to give “B” a lineup. “B” did not want to plead guilty, but did so under pressure from his old lawyer, the new counsel contends. The judge hears evidence, applies constitutional tests relating to “ineffective assistance of counsel,” then either strikes the prior convictions or lets them stand. Makes sense?

Maybe not. The 2nd District Court of Appeal, which sits in Los Angeles, disagrees with the 4th District. In People vs. Allen, the 2nd District recently decided that collateral attacks put an “undue burden” on the administration of justice, i.e., efficiency, and that writs of error (or motions to strike prior convictions) due to previous counsel’s incompetence cannot be raised by defendants facing strikes. So even if the old lawyer was incompetent, there is nothing “B” can do.

Because of the conflict between the two intermediate appellate courts, the issue of collateral attack undoubtedly will find its way to the state Supreme Court, which has yet to decide any post-trial third-strike case.

Third-strike sentencing runs to the heart of the judicial function. The law allows prosecutors to dismiss strikes, but does not allow judges to do so. Thus, it places a virtually exclusively judicial function--sentencing--in the hands of executive-branch prosecutors. The arbitrariness of this policy can best be seen at the Van Nuys Courthouse.

Since the 1994 earthquake demolished the San Fernando Courthouse, judges assigned to San Fernando have been sitting in Van Nuys. The San Fernando deputy district attorneys are housed in the Municipal Court building; the Van Nuys deputies are next door in the Superior Court structure. Thus, we have the same judges, same jury pools, same defense attorneys and same cases traveling through the same pipeline simultaneously.

With one tremendous difference. The head deputy district attorney for the Van Nuys branch keeps a tight rein on his deputies to prevent them from negotiating three-strike cases, almost no matter what the equities. Conversely, his counterpart for San Fernando has given his people greater latitude to dispose of cases when equities exist. Now, it is a bit crazy to have the same district attorney’s office, with two branches in the same courthouse, pursuing seriously differing third-strike policies.

Ordinarily, it is the judges, using their constitutional judicial discretion, who try to balance the inequities that occur. But with the exception of the 4th District, appellate courts consistently have failed to assert their independent constitutional duty. Having been thumped by the Legislature for affirming term limits in Proposition 140, the current state Supreme Court justices have come to a sort of political Rubicon. Uphold “three strikes” and declare judges powerless, or find the law partly unconstitutional and risk the rage of the polity.

Whether it be in the context of the 14th Amendment’s “equal protection of the laws” or constitutional “separation of powers,” or “collateral attack” or “cruel and unusual punishment,” the court must decide whether it is willing to defy prevailing demagoguery. It must act in a manner that preserves judicial-branch independence.

Whether the 4th District’s decision proves right or wrong, its justices should be complimented for confronting the three-strikes dragon head-on. Unfortunately, other appellate courts are doing their Freddie Prinze imitation of “It’s not my job, man.”

But it was, actually.