October 31, 2016

The last death penalty appeal, or just another one before a flood, or business as usual.

Tomorrow morning, the Supreme Court will hear argument in People v. Winbush, an automatic appeal from a July 2003 death penalty judgment.  It could be an historic proceeding; not because of the argument itself, but because of its timing.  Winbush will be the last death penalty argument the court will hear before the election next week at which voters will weigh in on two competing death penalty initiatives, either one of which could have a dramatic effect on the Supreme Court’s docket.

Proposition 62 would end the death penalty in California, convert all existing death sentences to life without parole, and give the Supreme Court the discretion to transfer all pending death penalty appeals and habeas corpus petitions to the Court of Appeal or superior court.  It would open up a lot of space on the high court’s docket, removing a substantial number of cases which the court now must hear (the death penalty appeals) or at least work up (the habeas petitions), cases which almost always take the most court resources to decide.

Proposition 66, on the other hand, would inundate the Supreme Court with death penalty appeals and habeas petitions, likely leaving the court with time for little else.  Among other provisions, the initiative would require that, once the prescribed new system is in place, “the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases” within five years of entry of judgment.

Four years ago, when another death penalty abolition initiative was on the ballot, we identified a different case as the potential last death penalty appeal.  The initiative lost by about four percentage points, however.

The court has scheduled two death penalty appeals for its post-election December calendar.  If Proposition 62 takes effect, the court could transfer those appeals (and Winbush and the undecided automatic appeals from the early-September and the October calendars, for that matter) to the Court of Appeal.  It’s quite possible, however, that, because those cases are mostly worked up already, the court will decide the appeals without reaching any penalty phase issues, issues which would be mooted by the death penalty’s demise.  But if Proposition 66 prevails, and survives constitutional challenge, Winbush and the two December cases would likely be among the last before a flood of death penalty direct appeals and habeas petitions inundates the court.  If neither initiative passes, things will continue as before, just like four years ago.

Related post:  California Academy of Appellate Lawyers opposes Prop. 66.

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