NEWS: In Rare Move, State Supreme Court Votes To Rehear Capital Case
by JOHN ROEMER
Mar 13, 2015

CALIFORNIA (Daily Journal) - In a rare move, the reconstituted state Supreme Court has voted to rehear a case as incoming liberal justices signaled their disagreement with a departing conservative in a death penalty appeal.

The new four-justice group, which included the newcomers plus one court veteran, had the votes to challenge the chief justice's majority opinion. In what legal observers said would be emblematic of their independence, the new group could opt to rehear as many as four additional cases.

The shift toward a liberal majority represented a dramatic about-face from that of 1986, when voters rousted from the bench three liberals on the court, then led by Chief Justice Rose Bird.

In 1987, with the liberals gone, a newly conservative court immediately restored a death sentence Bird and colleagues had reversed.

Wednesday's rehearing vote could do the opposite and lead to the sparing of a death row inmate.

Bird and the others rejected by voters over their anti-capital punishment views were appointments Gov. Jerry Brown made during his first stint in Sacramento from 1975 to 1983.

Brown also placed on the state high court the three who voted Wednesday to rehear the case of capital defendant Gary Lee Grimes: Goodwin H. Liu, Mariano-Florentino Cuellar and Leondra R. Kruger. They joined the liberal-leaning Kathryn Mickle Werdegar, who has been on the court since 1992.

An appellate lawyer who clerked for Bird, Paul D. Fogel of Reed Smith LLP, contrasted the 1986 expulsions with Brown's new court additions. "In 1986 we saw the polticization of the judiciary as the three were swept out of office based on the death penalty," he said. "This is very different, based on a change in the composition of the court via retirements."

Grimes, convicted in the 1995 murder of 98-year-old Betty Bone during a burglary, claimed a trial judge wrongly excluded statements by an accomplice that could have helped Grimes avoid a capital sentence.

The accomplice, John Morris, told an acquaintance that Grimes was in another part of the house when Morris killed Bone.

In January, the court split 4-3 in concluding there was no prejudicial error in People v. Grimes, S076339. The majority held that the exclusion of hearsay statements, even if erroneous, was harmless.

"We find no reasonable possibility that the exclusion of Morris's statements ... made a difference in the outcome at either the guilt or penalty phase," wrote Chief Justice Tani Canitl-Sakauye, joined by Marvin R. Baxter, Carol A. Corrigan and Ming W. Chin.

The dissenters, including a court of appeal justice sitting by designation, contended there was a reasonable possibility Morris' statements would have swayed jurors away from death verdict.

Since then Baxter has retired. Cuellar and Kruger took the oath of office on Jan. 5, the same day the court published Grimes. Cuellar replaced Baxter, the court's conservative stalwart. Kruger occupied the seat vacated by Joyce L. Kennard, an unpredictable independent who retired a year ago.

"It's a new day. Rehearings are rare and unusual in a capital case," said Cliff Gardner, the Berkeley appellate lawyer who represents Grimes. "This tells me [the Brown appointees] are willing to look again at an important case and will step up and share their views."

Grimes was sentenced to death in 1999. "It's never too late to reach the right decision," Gardner said.

Opposing counsel Stephanie A. Mitchell, a deputy attorney general, could not be reached. Spokespeople for Attorney General Kamala D. Harris did not respond to a message seeking comment.

Fogel, the appellate lawyer at Reed Smith, said Grimes' ultimate outcome remains unclear. "Our experience of Cuellar and Kruger is too limited to offer a prediction of how they view harmless error doctrine," he said, referring to the question on which Grimes' rehearing will turn.

Liu has been critical of his colleagues' use of harmless error analysis to affirm judgments despite lower court mistakes.

"Voting to rehear, however, does show the independence of the new justices," Fogel said.

David S. Ettinger, a Horvitz & Levy LLP appellate specialist, said in a blog post that the conditions at the high court allowing a second look at Grimes - a divided decision with a justice in the majority replaced before the court rules on a rehearing petition-exist in four other cases. The issues involved include sex offender registration, another death penalty appeal and standards for environmental review.

The grant of a rehearing petition "is one of the rarest of rarities at the Supreme Court," Ettinger wrote.

The most recent pre-Grimes rehearing grant came almost 20 years ago in 1996 in a civil case after Chin joined the court.



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