NEWS: An Exhausting Petition Meets An Exasperated Court
by SCOTT GRAHAM
May 01, 2012

SAN FRANCISCO (The Recorder) - Capital defense counsel - can't live with 'em, can't live without 'em.

That's what the California Supreme Court must have been thinking Tuesday, as the justices' tough threat to clamp down on lengthy habeas corpus petitions with monetary sanctions was quickly withdrawn when the court ran into an unrepentant defense lawyer and a courtroom packed with his colleagues wielding a threat of their own.

"What am I supposed to do as exhaustion counsel?" demanded Berkeley attorney James Thomson. "The federal court has told me I have to be here. I'm here."

Last week the Supreme Court sent Thomson and his co-counsel a letter warning that the court was considering monetary sanctions because of the 519-page habeas petition they filed in 2004 raising 143 claims on behalf of a client who calls himself Reno. The petition included dozens of claims already raised and rejected on appeal or in a previous habeas petition.

The letter upset the capital defense bar, with California Attorneys for Criminal Justice and the federal public defenders of Los Angeles and Sacramento submitting an amicus curiae brief a few days later.

"The difficulty this court has had with the recruitment of qualified counsel to take capital habeas appointments is well-known," San Francisco attorney Cliff Gardner wrote on their behalf. "There are currently 328 prisoners on death row without habeas counsel." The threat of sanctions "while attempting to navigate the shoals of complex and often contradictory state and federal habeas law will only increase the difficulty in obtaining counsel for these cases in the future."

Gardner, California Appellate Project executive director Michael Millman and UC-Berkeley Death Penalty Clinic director Elisabeth Semel were among the defense bar luminaries supporting Thomson in person Tuesday. But before Thomson even got up to speak, Chief Justice Tani Cantil-Sakauye announced that the court would allow additional briefing on the sanctions issue, and Justice Kathryn Mickle Werdegar told Deputy Attorney General Mary Sanchez, "I want to take off the table the thought of sanctioning any of the attorneys in this case."

It remained clear, nevertheless, that the case has touched a nerve with the court and that the justices want to use it to reduce the enormous resources spent on capital habeas petitions.

Reno, previously known as Harold Ray Memro, has been on death row for 32 years and has gone through eight court-appointed attorneys. He was sentenced to death in 1980 for the throat-slashing murder of two pre-teen boys in 1978 and the strangulation and sexual assault of a 7-year-old in 1976.

Virtually all of the evidence against Reno is based on his confession, which he says he gave South Gate police only because they were threatening to ram his head into a wall. Two other arrestees testified that they'd been threatened with the same beating by the same police officers. The California Supreme Court ordered a new trial in 1985 so that Reno could conduct discovery on the officers' personnel files. But by the time of his 1987 retrial the police department had destroyed the records.

Reno has been a difficult client who insisted on representing himself along with counsel at various times during his trials. "Your legal IQ is zero," Judge John Torribio snapped at him during his retrial.

He was sentenced to death a second time and the California Supreme Court affirmed in 1995, while rejecting Reno's first habeas petition later that year. Reno brought new claims in federal court, and in 1998 a judge sent the case back to the state Supreme Court, saying 18 of those claims had not yet been exhausted.

In 2004, defense lawyer Peter Giannini of Los Angeles filed Reno's second state habeas petition, acknowledging it included not only those 18 claims but many new ones. "Petitioner has included all known claims of constitutional error related to his trial, convictions, sentence and imprisonment for the sake of clear presentation and so this court can assess the cumulative effect and determine that a miscarriage of justice occurred," Giannini wrote in the petition. "This includes claims that have been previous presented."

On Tuesday, Deputy AG Sanchez said the defense lawyers should be sanctioned for abuse of the writ - not only raising too many claims, but failing to allege them with specificity. "We hope that will chill the filing" of these huge petitions, she said.

Counsel facing possible sanctions often are contrite, but Thomson was unbowed. He began his argument by saying the specificity demanded by the AG "is going to cause the petitions to be longer, not shorter."

He noted that he had filed a chart with the court that specified which claims had already been raised and rejected. "Maybe it should have been in neon," he added.

Justice Carol Corrigan was Thomson's toughest questioner. "We are over 25 years on from the commission of these crimes," she told him. "If it's sufficient to come back 17 years later and say 'I wasn't the lawyer [for the first habeas petition]' ... then there's never any end to this."

Thomson emphasized that his team felt duty-bound to preserve all claims for federal court, which has a different set of habeas rules that is constantly changing. "I don't want to be the lawyer 15 years ago, when my client is being marched to death row, to the execution chamber, kicking myself" for not recognizing a meritorious claim.

By the end of his argument the court sounded conciliatory. "Nobody wants to be in that spot," Corrigan told him. "We don't want to either."



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