Thursday, September 29, 2011

What's taking so long?

Why hasn't the appellate process for Scott gotten started yet?  What's the hold up?  If you follow the docket using the link at the right, you know that there's not much explanation given for anything.  We've seen a couple of requests for extensions of time to file the first brief, but we're not given a reason why the extension was necessary - just that it was for good cause.

Direct appeals in capital cases in California take a very long time.  This Internet article explains the problems the California Supreme Court is facing with the way death row appeals are managed.  Here is some basic information from the article.

California's death row inmates have two State appellate opportunities:  the direct appeal and the habeas appeal.
Review on direct appeal is, of course, limited to the record compiled by trial counsel in the court below. In nearly every death case, the adequacy of performance of the trial counsel will be among the most significant issues to be litigated. Was the case fully investigated, and did counsel make all the efforts that a reasonably competent defense lawyer would make under the circumstances? There may also be issues of prosecutorial misconduct that are not fully illuminated by the trial court record. Was there potentially exculpatory evidence (including evidence which might persuade a jury to opt for life imprisonment rather than death) which was not disclosed to the defense? These issues are normally litigated in a petition for a writ of habeas corpus, in which counsel independently investigates what trial counsel did and did not do, and what was and was not turned over by the prosecution. (pg. 501)  
The direct appeal and the habeas appeal can be filed simultaneously; however, that rarely happens.

California's record on reversing death row convictions is very conservative, as the Court gives a lot of deference to the trial judge:  "Since 1987, the California Supreme Court has affirmed death judgments at a rate in excess of 90% and denied state habeas relief at an even higher rate" (pg. 503).

Affirming 90% of the death judgments has another side -- 10% had serious enough flaws to reverse the judgments.  And if ever a case had serious flaws, it's Scott's case.  But I shouldn't presume to know what goes on inside the mind of a Supreme Court Justice.  I do know one thing defendants have against them is that each issue is judged separately.  Richelle Nice and other jurors often talked about each piece of the puzzle not counting for much, but putting them altogether added up to a lot.  Well, that's not the way it is in appeals.  Each issue has to stand on its own as to whether it would affect the outcome of the trial.  That doesn't seem fair to me - but that's the way it is.

Direct Appeal Timeline
After the defense brief is filed, the State has six months to file a response brief, and the defense counsel has six months to file a reply to the response.  "Then the parties wait for the California Supreme Court to schedule oral arguments.  As of July 1, 2008, eighty defendants were awaiting oral arguments . . . the Court ordinarily hears twenty to twenty-five of these cases per year . . . death cases usually languish for three years before being scheduled for oral argument" (pg. 499).  Once oral arguments are heard, the Court's decision comes within 90 days (pg. 499).

Habeas Appeal Timeline
The habeas brief must be filed within 3 years of the conclusion of the direct appeal.  The average delay between the filing of the habeas brief to the decision of the Court is twenty-two months (pg. 502).  The habeas appeal is handled a bit differently by the California Supreme Court:
The habeas petitions are routinely decided without a response from the attorney general and without a formal hearing. The court simply issues a summary order, declaring that even if true, the allegations in the petition would not merit relief. Out of 689 state habeas petitions decided by the California Supreme Court in death cases since 1978, the court has issued orders to show cause requiring the attorney general to respond to the petition in only 57 cases, and ordered evidentiary hearings before a pro tem judge in only 31 cases. (pg. 502)
Federal District Court Appeal
Not until after the State's direct and habeas appeals are concluded can the wrongfully convicted file a Federal habeas appeal.  This is where most wrongful convictions find relief:
―In California, 70% of habeas petitioners in death cases have achieved relief in the federal courts, even though relief was denied when the same claims were asserted in state courts. In most cases, relief was limited to reversal of the penalty phase. (pg. 503)
The average delay from the filing of an application for federal habeas relief in a California death case until the grant or denial of relief by a federal district judge is 6.2 years. (pg. 504)
Ninth Circuit Court of Appeals 
Federal District Court decisions are appealed to the Ninth Circuit Court.  The average delay in this step of the appellate process is 4.2 years.