Metropolitan News-Enterprise


Friday, November 13, 2015


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Ninth Circuit Overturns Anti-Death Penalty Ruling


From Staff and Wire Service Reports


California’s death penalty survived a legal challenge yesterday when the Ninth U.S. Circuit Court of Appeals reversed a lower court ruling that had found it was unconstitutional because of excessive delays.

The panel, without reaching the merits of U.S. District Judge Cormac Carney’s decision, said the claim was barred under Teague v. Lane (1989) 489 U.S. 288, which generally holds that a “new rule” of criminal procedure cannot be applied retroactively on habeas corpus.

The petitioner, Ernest DeWayne Jones, raised a “novel constitutional theory” in arguing that delays in carrying out executions amounted to cruel and unusual punishment, Judge Susan P. Graber wrote for the panel.

More than 900 people have been sentenced to death in California since 1978, but only 13 have been executed. The ruling came as the state tries to revive executions that have been stalled nearly a decade and as supporters and opponents of the death penalty take to the streets to get dueling referendums on the state ballot next year.

Jones, of Los Angeles, was sentenced to die for the 1992 rape and murder of his girlfriend’s mother.

“Many agree ... that California’s capital punishment system is dysfunctional and that the delay between sentencing and execution in California is extraordinary,” Graber wrote. “But ‘the purpose of federal habeas corpus is to ensure that state convictions comply with the federal law in existence at the time the conviction became final, and not to provide a mechanism for the continuing reexamination of final judgments based upon later emerging legal doctrine,’” the judge said, citing Sawyer v. Smith, 497 U.S. 227 (1990).

Judge Johnnie B. Rawlinson joined in the opinion, while Judge Paul J. Watford concurred separately.

Watford argued that Carney’s ruling was substantive, rather than procedural, so that Teague did not apply. But he concluded the claim was barred for a different reason, that Jones failed to exhaust it in state court.

Obstacle Removed

The ruling removes another obstacle state officials faced to resume executions at San Quentin State Prison that have been on hold since a different federal judge ordered an overhaul of the state’s lethal injection procedures in 2006.

The state is attempting to address those concerns by proposing a single-drug method that would replace multi-drug combinations that have led to problems in several states.

The state has scheduled a hearing on the proposal in January, but there is a nationwide shortage of execution drugs and supporters and opponents of capital punishment don’t expect executions to rapidly resume.

Lawyers for Jones said they were disappointed in the ruling yesterday and considering their next move as Jones presses his appeals. But the Criminal Justice Legal Foundation, which filed an amicus brief in support of the state, called the decision “a major victory for justice in California.”

Carney’s ruling, the statement said, “was wrong in every aspect,” and with its reversal “we can continue with the work of reinstating justice in our state.”

Professor’s Comment

The lower court decision, although overturned, could still have an impact on other judges’ reasoning, Loyola Law School professor Laurie Levenson told The Associated Press. It could also be the basis for appeals by killers convicted in the future, which might force an appellate court to consider whether the California death penalty is unconstitutional.

The court sidestepped that issue in the Jones case by focusing on procedural grounds.

“They stay as far away from the merits of this case as they can,” Levenson said. “This doesn’t answer the question of whether we have a system that violates the Eighth Amendment.”

Attorney Michael Laurence argued on behalf of Jones that inmates can linger on death row 30 to 40 years and it’s random which ones are executed, quoting a 1972 U.S. Supreme Court opinion that said being put to death was “as unusual as being struck by lightning.”

The state Attorney General’s Office argued that delays in carrying out executions were necessary to ensure fairness. Its position was boosted recently when the California Supreme Court held in People vs. Seumanu that an inmate who had been awaiting execution for 14 years failed to establish arbitrariness.

Delays that have become typical—such as those necessary to locate and appoint appellate counsel, and then to have counsel carefully brief the issues and the court carefully consider them—safeguard the defendants’ rights, rather than violate them, the court said.

Those delays could be addressed by voters next year if death penalty supporters gather enough signatures to put a reform measure on the ballot that calls for providing more appellate lawyers and speedier appeals.

Opponents of the death penalty are also gathering signatures for a ballot measure that would ban capital punishment in California. A similar measure was defeated by 4 percentage points in 2012.

Opposition to executions has been gaining traction in some states.

The Connecticut Supreme Court ruled this year that the death penalty served no legitimate purpose. Nebraska lawmakers repealed capital punishment, but death penalty advocates responded with a statewide petition drive that puts the issue to voters a year from now.

Jones, 51, has been on death row two decades for the murder of Julia Miller, who was stabbed 14 times. The paroled rapist was connected to her rape through his DNA and he admitted the slaying.

Jones said the state didn’t provide a fair and timely review of his case, the delay exceeded that in other states, and death row’s conditions constituted torture.

The case is Jones v. Davis, 14-56373.


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