February 16, 2017

Supreme Court allows preserving evidence during pending death penalty appeal, expresses no opinion about the effect of Prop. 66

In People v. Superior Court (Morales), the Supreme Court today holds that a superior court has jurisdiction to order preserved evidence relating to a death penalty case in which there is an automatic direct appeal pending in the Supreme Court, even though the evidence is potentially relevant only to a future habeas corpus petition for which counsel has yet to be appointed.  The court’s unanimous opinion by Justice Kathryn Werdegar concludes that courts “have the inherent power . . . [to] entertain[ ] motions for the preservation of evidence that will ultimately be subject to discovery . . . when the movant is appointed habeas corpus counsel.”

The court reverses the Fourth District, Division Two, Court of Appeal.  In finding no jurisdiction to order evidence preserved, the Court of Appeal had believed its hands were tied by a 1990 Supreme Court decision and one justice said at oral argument that it was up to the high court to “clean[ ] up their own mess.”  The Supreme Court today concludes, however, that “the Legislature has partially abrogated” the rule from the 1990 case and that the Court of Appeal “failed to give sufficient consideration” to current statutory provisions.

This case also serves as an example of how long the death penalty litigation process can take.  The defendant here was sentenced to death in 2005.  It was not until four years later that the Supreme Court appointed counsel — the State Public Defender — to represent defendant in his automatic appeal.  The court recently granted counsel’s 41st request for an extension of time to file the opening brief.  Almost a dozen years after the death sentence was imposed, no counsel has yet been appointed to represent the defendant in habeas corpus proceedings, which the court today says is due to the “regrettable reality” that there is “a shortage of qualified attorneys willing to accept appointment.”  The court’s recognition of the difficulty in finding habeas counsel is nothing new.

The court notes that Prop. 66 — passed by the voters in November but stayed while under review by the court — transfers responsibility for the appointment of capital habeas counsel from the Supreme Court to the superior court, but “expresses no view regarding the effect of that enactment.”


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