Metropolitan News-Enterprise


Monday, July 22, 2002


Page 1


State High Court Gives Lawyers Handling Death Penalty Appeals More Time to File Habeas Corpus Petitions


By ROBERT GREENE, Staff Writer


The state Supreme Court on Friday extended the time in which appellate lawyers seeking habeas corpus relief in death penalty cases can file their writ petitions.

In an effort to attract more lawyers willing to take on appointments to handle death penalty defendants’ writs, the court lengthened the time to file petitions to 180 days after the appellant’s reply brief is due in the separate direct appeal. The time was previously 90 days after the reply brief due date.

The change is seen as important in the wake of laws compressing the time frame for filing appeal documents in trials that began in 1997 or later. Since many appellate lawyers take dual appointments, handling both the client’s direct appeal and the habeas corpus petition, they were strapped for time to work on the appeal because they knew they would have little time afterward to prepare the writ petition.

The Supreme Court retained the alternative deadline of 24 months from the appointment date of habeas corpus counsel. Counsel has until whichever of the two dates comes later to file.

The “deadline” actually is not a deadline at all, because of additional procedural safeguards for capital defendants. Instead, a petition filed during the prescribed period is presumed to be “filed without substantial delay” and is deemed timely.

The change comes as part of a comprehensive review of policies and procedures dealing with the handling of death penalty cases. Leaders of the Habeas Corpus Resources Center, the California Appellate Project and the state Public Defender’s Office conducted focus groups to help advise the court on what appellate lawyers need in order to better represent capital defendants, and in order to be more willing to take on appointments.

Appellate defense lawyer Jonathan Milberg of Pasadena said he was pleased the court extended the time, but he said more reform was needed.

“From our point of view it’s good news, of course, but the scope of investigation in these cases is mammoth” and often requires a great commitment of time and resources, Milberg said.

Lawyers handling the automatic direct appeal must limit their briefs to the record established at trial. For habeas corpus petitioners, however, the lawyer often must go back years to unearth evidence that was unknown at the time of trial, and search for potential witnesses who may now be in other countries.

Their challenges are increased by a payment schedule that often leaves them without progress payments until very late in the process. Meanwhile, Milberg noted, they must begin a costly investigation requiring payment to assistants and often psychiatric experts.

The court said in a statement that in more and more cases lawyers have applied only for the direct appeal appointment, and no lawyers have been found to handle the habeas petitions.

“Taking into account the accelerated time frame for the appeal, the effect of dual appointments upon the timing of payments to counsel, and the increasing number of cases in which no habeas corpus counsel has yet been appointed, the court concluded that extending the tie for presuming a petition to be timely filed would be appropriate, and that doing so would not increase the overall time for processing these matters,” the court said.

Milberg said the court appeared to be doing its best to balance the competing goals of judgment finality “so these cases don’t go on forever” and fundamental fairness to the defendant. But he added that the result has become “a procedural morass.”

Beth Jay, principal attorney to Chief Justice Ronald M. George, said the court was continuing to look at improvements in the death penalty appeals system and hopes lawyers with recommendations will contact the state public defender, the Capital Appellate Project and the Habeas Corpus Resource Center, all of which are based in San Francisco.

“There are continuing discussions going on with the three entities,” Jay said. “It’s an ongoing process. The court’s been quite open and I think this will continue.”


Copyright 2002, Metropolitan News Company