Will a death penalty initiative make it easier to obtain Supreme Court review of your civil case?


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Will this year’s elections have an impact on Supreme Court review?

Death penalty cases can be automatically appealed to the Supreme Court, but a mere civil litigant has to ask the supreme court — convince it, really — to review its case. The odds are terrible; only about 1 in 25 petitions for review succeeds.

Those odds may be going up a little after this year. For the 2014-2015 term, death penalty cases made up nearly 18% of the court’s workload (13 death penalty decisions out of 73 majority opinions). What if all those death penalty cases went away? Would the court be able to take on more cases?

It’s quite possible, according to an article by Ben Feuer and Ann-Rose Mathieson in he 2015 edition of California Litigation Review.* The 18% statistic belies the time actually spent on death penalty cases, say the authors, “given the generally lengthy records and briefing, along with couldn’t-be-higher stakes.”

What are the chances those death penalty cases will go away? Higher than they have been in a long time, it seems. This year’s ballots may see competing death penalty initiatives, note the authors. One would streamline the appeals process in death penalty cases, while the other would eliminate the death penalty. The latter initiative seems to have a real chance. According to the authors, a recent poll found support for the death penalty in California at its lowest point in 50 years.

*Published by the Litigation Section of the State Bar of California, and the source for the case statistics cited in this post.


Death Penalty Odyssey Likely to Fuel Debate

NOTE: This is a re-post of an earlier post that I unwittingly published with the exact same blog title as the below-referenced Decision of the Day post.

In a post entitled A “Wholly Discomforting” End To Twenty-Two Years of Death Penalty Appeals, Robert Loblaw at Decision of the Day notes yesterday’s 159-page decision in Cooper v. Brown, case no. 05-99004 (9th Cir. Dec. 4, 2007) and comments on how it is likely to fuel debate on the death penalty.

I think I remember hearing about this case on the news the last time Cooper’s execution was stayed, but I sure don’t remember the “discomforting” facts DoD excerpts from the concurring opinion making it into the news.

Death Penalty Appeals to Shift from Supreme Court to Court of Appeal?

Monday’s announcement that the Supreme Court is seeking a constitutional amendment to have death penalty appeals heard in the Courts of Appeal (press release here) has predictably triggered blog coverage.

Legal Pad calls the announcement a “bombshell,” poses several questions regarding the potential impact of such an amendment, and seeks answers from their readers.

Crime & Consequences questions whether the proposed summary affirmance procedure for the Supreme Court to affirm Court of Appeal dispositions is functionally any different from discretionary review. The first comment on the post questions the propriety of justices “publicly lobbying to modify their jurisdiction” because practitioners who appear before them will be hesitant to publicly oppose the change.

And all the way from Texas, the StandDown Texas Project links to some California newspaper articles and coverage by the Associated Press.

Ninth Upholds Death Penalty Despite Jury’s Reference to Bible during Penalty Phase Deliberations

Stevie Lamar Fields was convicted in California state court of heinous crimes, including murder, which he committed in the course of a three-week spree that he started just two weeks after completing a prison stretch for manslaughter.  During the penalty phase of his trial, the jury foreman consulted a Bible, a dictionary, and other reference texts, made notes of points for and against the death penalty, then shared those notes with the jury.  The foreman’s notes in favor of the death penalty included Biblical passages.  Fields was sentenced to death.

The District Court denied habeas relief on the conviction but granted it as to the death penalty. The Ninth Circuit’s en banc reversal of habeas relief for the death sentence in Fields v. Brown, case no. 00-99005 (9th Cir. Sept. 10, 2007) is generating law blog buzz. 

The Ninth summarized Fields’ arguments regarding the Biblical references as follows:

[Fields] submits that there is a material difference between a juror’s commenting on the evidence from general knowledge that other jurors can easily rebut, and a jury’s considering written notes of religious mandates and appeals to a higher authority.  And he contends that the Biblical verses were “strong medicine” that supported imposition of the death penalty when the jurors were split in favor of life without the possibility of parole, thus were prejudicial.

Applying an objective test for undue influence, the court opines that a jury would not be unduly influenced by the notes:

Whether or not [the foreman] should have brought his notes to the jury room and shared them, we cannot say that the Biblical part of the “for” part of the notes had a substantial and injurious effect on the verdict. His own notes had an “against” part as well.  So far as we can tell, the communication occurred early on in deliberations.  Jurors could take as much time as they needed to sort through the evidence and reflect on whether the ultimate penalty was the right penalty.  More importantly, the jury was instructed to base its decision on the facts and the law as stated by the judge, regardless of whether a juror agreed with it. We presume that jurors follow the instructions. 

Ultimately, however, the court appears to rely on the presence of aggravating factors in support of the death penalty as a counterweight to the notes.  The aggravating evidence was so substantial, the court finds, that jury misconduct had no “substantial and injurious effect or influence in determining the jury’s verdict.” Given this substantial aggravation, the court saw “no prejudicial constitutional error on account of the juror’s notes that requires issuance of the writ.”

By my read, the majority (the case generates three opinions covering 99 pages) leaves open the possibility that where aggravating factors are not so prevalent, or evidence of them not so great, the influence of Biblical materials in the jury deliberations might well be found to have an injurious influence on the jury.

Other law blog coverage can be found at Decision of the Day, Capital Defense Weekly (which calls the decision “cert. bait”), Deliberations (very detailed), and Sentencing Law and Policy (providing links to prior posts on circuit splits on this issue).

How Appealing has this round-up of press coverage.