September 3, 2012

The last death penalty appeal?

This Thursday, the Supreme Court will hear a death penalty appeal — People v. Homick. It might be no big deal, relatively speaking, just the latest in a very long line of capital cases to reach the high court automatically and directly from the trial court. Or it could be the historic end of that line.

On November 6, the California electorate will vote on Proposition 34, an initiative that would eliminate the state’s death penalty, 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.

Homick is the only death penalty appeal on the September calendar and the court has uncharacteristically scheduled no automatic appeals at all for its October calendar (here and here). The court will hear November arguments the same week as the election and will announce that calendar in several weeks.

If there are again no death penalty appeals on the November calendar, if Proposition 34 passes, and if, as would be likely, the Supreme Court transfers all its pending death penalty cases, Homick could have the distinction of being the last California death penalty appeal.

A court spokesman told At The Lectern that the court has not changed any of its current practices and procedures for handling death penalty cases based on the pendency of Proposition 34. And there’s evidence to back that up — if the court were anticipating the imminent demise of the death penalty, why would it issue last week a very detailed opinion specifying new procedures for certain capital habeas petitions? Nonetheless, we would not be surprised to see no death penalty cases scheduled for argument in November and to see an opinion in Homick before election day, even though the court will have an additional month after that to file its decision. In this way, come election day, the court would have no death penalty cases that had been argued with a decision still pending.

Passage of Proposition 34 could have a dramatic impact on the court’s workload. By our count, for the 18-month period from January 2011 through June 2012, over 30 percent of the cases heard by the court were death penalty matters. According to the court spokesman, there are currently 352 capital appeals and 198 capital habeas petitions pending in the court. (Those numbers probably include a handful of recently decided cases with pending rehearing petitions.)

Would the Supreme Court grant 30 percent more petitions for review to fill in the holes in its docket left by absent capital cases? Quite possibly. In fact, it could be more than 30 percent, because capital cases are normally substantially more time intensive than other cases. But we won’t know any of this unless Proposition 34 passes, because the court spokesman also said that it would be premature for the court to comment on issues that will arise only if the initiative is adopted by the voters.

The court might want to stay out of the Proposition 34 debate, but it could have an indirect influence anyway. As the Daily Journal’s Emily Green discussed on the California Report, the court has recently reversed a number of death penalty judgments after a two-year, unbroken stream of affirmances. The San Jose MercuryNews editorialized last week that one of the reversals “finally gives us a local example to show why voters should approve Proposition 34 this fall and repeal the death penalty.”

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