Faster Death Penalty Appeals Rejected

A federal appeals court ruled on Monday that California is not eligible to impose a speed-up of death penalty appeals.

The U.S. 9th Circuit Court of Appeals said California has not taken the steps necessary to meet the standards set by Congress in 1996 to become a “fast track� state for processing constitutional challenges of capital convictions.

If the ruling had gone the other way, it would have meant that individuals convicted of a capital crime would have to file any federal constitutional challenge to their conviction within six months after the California Supreme Court had entered its final ruling upholding the death penalty.

So far, no state has been deemed qualified by a court for the fast-track program.

California prosecutors have unsuccessfully attempted to qualify the state for the program in 40 death penalty cases and, consequently, the appellate ruling has been awaited with considerable anticipation in legal circles.

California’s death row inmates now have at least a year to file a constitutional challenge.

The decision was hailed by Michael Laurence, who runs the state-funded organization that raises constitutional challenges in capital cases, and by private lawyers who represent inmates on death row. Ronald S. Matthias, the lawyer who represented the state attorney general’s office, lambasted the ruling, saying it was wrong in several respects. Matthias said he could not say immediately whether the office would seek review from a larger panel of 9th Circuit judges or the U.S. Supreme Court.

But he said the 3-0 ruling was a “grave matter� that would affect about 475 of the 551 people currently under a death sentence in California.

The ruling, written by Judge William Canby of Tucson, upheld a decision by a federal trial judge in San Francisco.

Monday’s decision stems from protracted litigation that evolved out of the Anti-terrorism and Effective Death Penalty Act of 1996, a law passed by Congress in an attempt to streamline death penalty appeals.

The statute limits the amount of time for filing constitutional challenges and restricts the issues that can be raised in such challenges.

One section of the law also provides that if a state has in place a mechanism for the appointment and compensation of competent counsel and provides adequate resources for constitutional issues to be raised in state court, the state is then entitled to a fast-track process. In addition to requiring the inmate to file a constitutional challenge within 180 days after any state’s supreme court issues its final ruling in the case, the fast-track system requires a federal trial judge to rule on the challenge within 180 days after it is filed, and for a federal appeals court to issue its decision within 120 days of the trial judge’s ruling.

The California attorney general’s office has maintained since the law was enacted that the state qualifies for the fast-track program. The state’s pursuit of the issue started under Republican Atty. Gen Dan Lungren and has continued under his Democratic successor, Bill Lockyer.

So far, there have been 40 decisions by federal trial judges throughout the state--including judges appointed by presidents ranging from Richard Nixon to Bill Clinton--that have rejected the state’s position.

One of those decisions was rendered by U.S. District Judge Thelton E. Henderson in San Francisco in the case of Troy A. Ashmus. Henderson’s decision is the one that was upheld Monday. Ashmus was sentenced to death by a San Mateo County jury in 1986 for the 1984 rape and murder of a 7-year-old girl.

A report released a year ago by the federal Administrative Office of the Courts on the costs of private attorneys representing clients in federal habeas corpus litigation commented pointedly on California’s continuing legal battle on the fast-track program.

“Since [the law] was passed in 1996, the California attorney general’s office has litigated the applicability� of the law “in every case--a practice unique to California,� noted the report done by PricewaterhouseCoopers, one of the nation’s largest accounting firms.

The report said prosecutors in other states had each filed only one suit on the issue as a test case and used the result as a precedent. The report further said it was difficult to quantify the financial impact of California’s strategy, but said it was possible that the attorney’s general stance might have generated an additional $100,000 in costs to taxpayers in each of the cases where it pursued the issue.

Mitchell Zimmerman, a Palo Alto lawyer who filed a friend-of-the court brief on behalf of an inmate who has been on death row for more than a decade, said he hoped the ruling would bring an end to the “vast, unnecessary expenditure of money by the state attorney general’s office raising the same issue 40 times.�

But Matthias said the fact that the state had lost repeatedly on the issue did not mean that its position was wrong. He maintained that it was “abundantly clear� that California had done what it needed to do to qualify for the fast track. He said California provides the nation’s most extensive legal protections for challenging death sentences. “I am optimistic that the correct decision eventually will be reached,� Matthias said.

The appeals court, though, rejected all of California’s contentions, saying the state did not have binding requirements for appointing competent counsel or for providing the needed resources to investigate death penalty cases.

Marcia Morrissey, a Santa Monica defense lawyer who specializes in capital appeals, said it would be a “very tall order� to prepare a constitutional challenge in a death penalty case within six months.

Typically, she said, an attorney appointed in such a case is generally faced with one of two situations: reviewing thousands of pages of transcripts in well-prepared cases or extremely limited records in need of further investigation. “In some cases, you have to totally reinvent the wheel,� she said.

Currently, about a third of the convicts on death row in California have no lawyers to process their appeals. On average, the state Supreme Court takes four years to appoint an attorney on a death row appeal. The situation is complicated by the fact that many lawyers don’t want to take such cases because the compensation is not high and the work is difficult and depressing.

Monday’s ruling dealt with cases through the end of 1997. In January 1998, a new state law went into effect that provided increased funding for lawyers in death penalty cases, created a new agency to train the attorneys and stiffened standards for lawyers taking on such cases. The 9th Circuit did not say whether the state would qualify for “fast track� with these new rules. The issue is unlikely to reach a court test for several years because cases processed under those rules have not yet reached federal court.