NEWS: Death Sentence Reversals Raise Questions Among Capital Lawyers
by EMILY GREEN
Jul 26, 2012

SAN FRANCISCO (Daily Journal) - Lawyers for death row inmates are accustomed to losing in the state Supreme Court.

But a string of wins in capital cases in recent months has some foes of the punishment feeling cautiously optimistic. Since December, the court has reversed five death sentences following two years of straight affirmances.

"They're on a hot streak," said attorney Cliff Gardner, who represents capital inmates.

Some practitioners and court watchers say the rulings suggest the court under Chief Justice Tani Cantil-Sakauye is taking a harder look at death penalty cases than in previous years, but others say the rulings are more likely a random blip. In an ironic twist, an unusual concurrence by Cantil-Sakauye in one reversal could eventually lead the U.S. Supreme Court to limit the use of automatic reversals.

"There is a pretty clear theme, which is very aggressive review of the sort that we saw a million years ago on the Bird court and then didn't at all under the Lucas court and have only seen intermittently since," said Robert Weisberg, co-director of Stanford Law School's Criminal Justice Center.

Between 1977 and 1986, the court under Chief Justice Rose Bird reversed nearly all death penalty cases that came before it, a trend that ended when Malcolm Lucas succeeded her. Chief Justice Ronald George had a more mixed record, according to Weisberg.

One unifying feature of some of the recent reversals shows the state Supreme Court grappling with the issue of jury composition in capital cases.

The U.S. Supreme Court has held that a trial judge can't exclude prospective jurors who personally oppose the death penalty if those beliefs would not "prevent or substantially impair" their ability to vote in favor of the death penalty, as required under the law. The high court gives trial judges wide latitude in determining whether a juror meets that standard, including an examination of a juror's demeanor.

At a time when support for the death penalty is waning, jurors' views on the death penalty could become even more important. If more individuals oppose the death penalty, there is a greater likelihood that judges will wrongfully exclude potential jurors.

Twice this year, the state Supreme Court vacated death penalty judgments because of trial court error on that question.

In one case, involving a man convicted of sexually assaulting and killing a woman, the court rejected the trial judge's assessment that a prospective juror made "conflicting or equivocal statements" about her ability to vote for the death penalty. Even if she had, the court said, that wasn't grounds for dismissal. People v. Pearson, S120750.

The court applied a stricter standard in a second case, involving a man convicted of shooting to death his ex-girlfriend and her best friend. The trial judge should have questioned a prospective juror face-to-face after she equivocated on a written questionnaire about imposing the death penalty, the court ruled. John Riccardi v. Los Angeles County Superior Ct., S056842.

Cantil-Sakauye wrote a concurring opinion in Riccardi asking the U.S. Supreme Court to "clarify" the issue of automatic reversals for juror exclusion error. The court's three more conservative members signed on to the concurrence.

"The chief justice appears to be looking to a more conservative court to reverse clear precedent that has protected the rights of defendants and jurors but has required the reversal of death penalty cases such as Riccardi's," said UC Berkeley School of Law Professor Elisabeth Semel.

The Riccardi decision was also interesting in light of a ruling from the state justices just a year earlier. In that case, the court ruled the trial judge wasn't obligated to question prospective jurors independently before dismissing them because the answers on the jury questionnaire forms left no doubt they would not impose the death penalty. Justice Kathryn Werdegar dissented, arguing the trial judge should have further questioned at least one of the dismissed jurors. People v. McKinnon, S077166.

Unlike in the Riccardi case, the defense attorney in McKinnon didn't oppose the jurors' dismissal - a fact that the state Supreme Court emphasized in its decision.

In a third case involving jury composition, the state high court reversed the trial judge's decision to dismiss a sitting juror who was a potential holdout against conviction during deliberations. People v. Cleamon Johnson and Michael Allen, S066939.

"Normally you are going to see a fair amount of deference to the trial judge. And [in these cases] they are not very deferential," Weisberg said. "The state Supreme Court has clearly signaled they are going to crack down on judges who dismiss these arguably anti-death penalty jurors too abruptly."

The other two reversals since December dealt with jury instructions and mental competency. People v. Brents, S093754; People v. Lightsey, S048440.

Death penalty attorney Scott Kauffman said the court appears more receptive to capital appeals, a change he attributed to the addition of the court's newest members - Cantil-Sakauye and Associate Justice Goodwin Liu.

"It's changed the dynamic on the court in some impalpable way," Kauffman said. "There clearly is more reception to the claims that we've been making."

But other death penalty attorneys rejected that assessment.

"It could be an interesting anomaly. It could be a trend," said death penalty attorney Charles Sevilla. "I just don't see a change in the personnel of the court being an explanation."

Gardner, who is representing infamous death row inmate Scott Peterson, agreed. "I think these cases would have been reversed by any combination of the justices sitting in the last 20, 25 years," Gardner said.

Jury composition issues are among the many claims in Peterson's appeal of his death sentence. Peterson was convicted in 2004 of murdering his wife and unborn child.

Santa Clara University School of Law professor Gerald Uelmen said the issue of jurors' attitudes toward the death penalty could become even more crucial because of shifting public opinion against capital punishment. According to annual Gallup polls, support for the death penalty has declined from all time highs in the mid-1990s. A 2011 poll found 61 percent of Americans approve of the death penalty, the lowest level of support since 1972.

"Public opinion is shifting on this issue and shifting fast," Uelmen said. "I don't think [before] we saw as many jurors coming in and expressing misgivings about the death penalty."



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