When a federal appeals court hears arguments Monday on the constitutionality of California's death penalty system, the judges' questions are likely to be more about legal procedure than the "dysfunction" in the way the state handles capital punishment.
The U.S. 9th Circuit Court of Appeals is scheduled to hold a hearing in Pasadena on a lower-court decision that found California's death penalty system unconstitutional and plagued by delays that have robbed a death sentence of any value in deterring crime. The ruling overturned the death sentence of Ernest Jones, who was convicted of rape and murder. Atty. Gen. Kamala D. Harris appealed.
Death penalty opponents hope the 9th Circuit will uphold U.S. District Judge Cormac Carney's decision, and that the state will not challenge it. Carney's ruling applied only to Jones' case and did not create statewide precedent. A 9th Circuit ruling, if left unchallenged, would be binding. Both Gov. Jerry Brown and Harris personally oppose the death penalty, and the current and past chief justices of the California Supreme Court have said the system doesn't work.
Monday's live streamed hearing may provide clues to where the three middle-of-the-road judges on the 9th Circuit panel will come down on the question. To uphold Carney, legal experts said, the panel would have to find a creative way around significant procedural obstacles.
Several state legislators and college professors have joined friend-of-the-court briefs in support of Carney's ruling. A pro-death penalty group also filed a brief, blaming the federal judiciary for delaying executions and arguing the death penalty was a valid means of retribution for crime victims.
The three Democratic appointees who will decide the case are considered moderates.
Judge Susan P. Graber, a Clinton appointee, has a reputation for being a stickler for rules. Judge Johnnie B. Rawlinson, also a Clinton appointee, is a former career prosecutor from Nevada. Judge Paul J. Watford, an Orange County native appointed by President Obama, spent about three years as a federal prosecutor before returning to private law practice. Watford has been considered a possible future contender for the U.S. Supreme Court.
UC Irvine Law School Dean Erwin Chemerinsky would like to see Carney's ruling upheld but acknowledged that the procedural hurdles appear daunting.
"I think Carney's opinion is very strong as to why the system violates the 8th Amendment" ban on cruel and unusual punishment, Chemerinsky said. The "harder question" for the panel may be whether it can get around legal rules that limit the authority of federal judges in such cases.
"I think this court could decide the case on procedural reasons rather than the 8th Amendment," Chemerinsky said.
The case before the 9th Circuit comes at a time when several states have abandoned the death penalty and only a couple of months after two Supreme Court justices wrote a strong critique of capital punishment and called for its reconsideration.
Yet the technical legalities loom large, among them:
• Did the California Supreme Court already reject Jones' constitutional challenge, albeit in a more narrow way? If so, the federal court may be required to defer to the state judges. Another 9th Circuit panel in a different case ruled this month that the state court's rejection of a more limited theory based on execution delays amounted to a repudiation of Carney's opinion.
• If the California court hasn't ruled on whether the state's administration of the penalty is unconstitutional, must the case be sent back to state court? Rules require inmates to make all their claims in state court before federal judges can review them.
• And finally, did Carney create a new legal rule or was his decision supported by clear precedent?
Both the state and Jones' lawyer argued in briefs that the California Supreme Court has not decided the precise issue raised by Carney. His decision found California's system was "arbitrary" — death row inmates wait for years before they can obtain qualified lawyers willing to take their cases and most die of causes other than lethal injection.
More than 700 people are on California's death row, and the state has executed just 13 people since 1992. Carney found that given the state's administration of capital punishment, a possible death sentence has no value in deterring crime or bringing resolution to crime victims.
Harris, asking the 9th Circuit to overturn Carney, called his reasoning "a novel theory that has never before been adopted by any United States court."
Michael Laurence, Jones' lawyer, countered that there are exceptions to the procedural rules. Sending the case back to state court would waste several more years, he said, and federal courts must intervene when a state allows "an intolerable situation" to fester. Laurence also contends Carney based his decision on settled constitutional law.
A state commission several years ago investigated California's death penalty and issued a report that said substantial sums were needed to accelerate the system. The state did not adopt the spending recommendations.
"If you favor the death penalty, you should be asking the 9th Circuit to tell California to fund the process," Laurence, a longtime capital defense lawyer, said in an interview. "We don't have a death penalty in California because we are not executing individuals."
Jones, Laurence's client, has been on death row for 20 years for the 1992 rape and killing of Julia Miller, his girlfriend's mother. Jones killed Miller 10 months after being paroled for a previous rape.
The state has not had a court-validated method for lethal injection for several years. Courts struck down a prior protocol and a proposal to replace it. Prodded by a state judge, Brown will have to unveil a new method within the next several weeks. It will undergo wide public review and may be challenged.
Many elected officials and judges in California would probably privately welcome a decision to overturn the death penalty, which is costly to administer and results in few executions, Laurence said. If the panel struck it down, "I do think there is going to be substantial discussion about whether or not this is a gift from the federal judiciary," he said.
California voters narrowly defeated a 2012 ballot measure to replace the death penalty with life without possibility of parole. Opponents of capital punishment have hinted they may bring a new ballot measure.
Kent Scheidegger, a director of the pro-death penalty Criminal Justice Legal Foundation, said in written arguments that California could execute more people "if the federal courts did their job properly."
"The federal courts should put their own house in order before pointing fingers at the state courts," Scheidegger wrote.