Ben Buchwalter

California Judges Scramble to Prevent Death Penalty Resurgence

December 19, 2011 by Ben Buchwalter Leave a Comment

California is well-known as a bastion of liberalism. The perpetual “blue state” is no stranger to high taxes and government regulations, and last year nearly voted to legalize marijuana. But California’s criminal justice system doesn’t extend as far to the left, illustrated by the state’s rejection of the American Law Institute’s Model Penal Code, and California’s choice not to join states like Michigan, New York, Massachusetts, and 13 others in abolishing the death penalty.

There are currently more than 700 prisoners on death row, but not a single person has been put to death since 2006, 76-year-old Clarence Ray Allen was killed for his three murders. Soon after, federal judge Jeremy Fogel issued a moratorium on the state’s death penalty due to procedural concerns that if the three-drug cocktail were administered incorrectly, it would result in cruel and unusual punishment. The federal 9^th Circuit Court of Appeals, which sits in San Francisco, then held that executions must be administered by technicians who are medically trained to give intravenous medications. As this is would be a clear violation of the Hippocratic Oath (“do no harm”), the 9^th Circuit’s ruling resulted in a de-facto death penalty moratorium that continues to this day.

A few California judges have recently indicated a desire to maintain this moratorium by acting to prevent carrying out the sentences of a few high-profile death row inmates. Just last week, for example, Marin County Superior Court Judge Faye D’Opal once again rejected the three-drug lethal injections, noting that the state should develop a one-drug alternative. In particular, Judge D’Opal wrote that the drug pancuronium bromide “is unnecessary, dangerous, and creates a risk of excruciating pain.” Judge D’Opal’s tentative decision resulted in yet another death sentence delay for Michael Sims, who was convicted of killing three Domino’s Pizza employees in 1985.

While a handful of California judges have publically opposed the death penalty, it remains legal and mostly popular among Californians. But the fate of the 700 prisoners on death row, and the institution writ large, remains uncertain. “The death penalty is going the way of the dinosaur,” says University of the Pacific McGeorge Law School professor John Meyers, adding that District Attorneys will continue to seek death sentences as long as they are popular.

In her decision, Judge D’Opal also criticized the San Quentin Prison for withholding data on the cost of the state’s executions. Former Warden Jeanne Woodford has said that each execution costs between $70,000 and $200,000, but the California Department of Corrections and Rehabilitation has not released any relevant data. Donald Heller, the lawyer who wrote California’s death penalty law, estimates that the state has spent $4 billion to put only 13 death row prisoners to death since 1976. Heller has since reversed his position and now advocates for abolition.

Most likely, it will not take long before the CDCR locates a one-drug lethal injection to short circuit California’s current de facto death penalty moratorium. At that point, judges who oppose the death penalty on legal and moral grounds will need to scramble to make another argument stick, rely on the California legislature to join those 16 states that have abolished the death penalty, or hold their breaths for the U.S. Supreme Court to weigh in on the matter.

Ben Buchwalter is a law student at UC Hastings College of Law in San Francisco.

SCOTUS Reviews Unreliable Eyewitness Testimony

November 3, 2011 by Ben Buchwalter Leave a Comment

Eyewitness testimony can make or break the prosecution’s case in a criminal trial. But some legal scholars and court reformers have raised doubts about eyewitness testimony based on evidence that unreliable testimony contributes to up to 75 percent of wrongful convictions. This problem is discussed at length on TV programs like “Law & Order” and “The Good Wife,” and in this fictional setting, the unreliable witness is almost always detected at the last minute with no substantive harm done. In reality, however, unreliable eyewitness testimony wreaks havoc on a defendant’s right to a fair trial.

Few doubt the importance of this problem, but even fewer know how to solve it. The Supreme Court has vowed to take a stab at it during its current session. On Wednesday, the Court reviewed Perry v. New Hampshire and the question of whether the Constitution’s due process clause permits a defendant to seek a special hearing by a judge to determine whether eyewitness testimony should be withheld from a jury.

Here, Perry was convicted of theft based on the testimony of a witness who saw the defendant from a distance late at night. Courts currently allow special hearings to preclude eyewitness testimony when there is evidence that a defendant was identified following suggestive police actions or similar misconduct, but has stopped short of permitting broad reviews.

Requiring Justices to review eyewitness testimony would no doubt reduce unreliable identification. But adopting this practice broadly would carry the unintended consequence of restricting a staple of the American legal system under the Seventh Amendment: the plaintiff’s right to have their claims considered by a jury. Each of the Justices seemed to acknowledge that eyewitness testimony can be problematic, but that it remains unclear whether taking the jury out of the equation would make trial procedure more reliable or simply deprive plaintiffs of an integral part of their day in court.

Enjoying a rare day of agreement, Justices from both sides of the Court’s ideological divide acknowledged the inconsistencies of eyewitness testimony, but expressed skepticism that Perry’s solution would provide a net benefit. Justice Antonin Scalia worried that permitting a special hearing on the basis of unreliable eyewitness testimony lacked a limiting factor. “Why is unreliable eyewitness identification different from unreliable anything else?” he asked Perry’s attorney Richard Guerriero.

Justice Elana Kagen voiced a similar concern, and added that while eyewitness testimony has been proven particularly unreliable, it “is not the only kind of testimony which people can do studies on and find that it’s more unreliable than you would think.” Justice Ruth Bader Ginsburg suggested that the courts already have mechanisms for protecting against faulty eyewitness testimony. Among other factors, Ginsburg noted that a judge can warn the jury that an eyewitness may have been unreliable, and that it is part of the defense attorney’s responsibility to raise such doubts during cross-examination.

It’s clear that the courts need a mechanism for protecting defendants against unreliable witness testimony. But the Supreme Court appears reluctant to approve a fix if it comes with significant departure from Court precedent. If the SCOTUS rejects Perry’s claim, a defendant’s best bet to prevent future false identifications might be pushing for stronger jury instructions and cross-examination techniques to expose potentially unreliable witnesses.

Ben Buchwalter is a law student at UC Hastings College of Law in San Francisco.