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California courts have the power to second-guess Gov. Gray Davis’ parole decisions, another appellate court has ruled. But Monday’s decision from the Third District Court of Appeal was a hollow victory for convicted murderer Norman Morrall, as the court concluded that Davis had properly exercised his discretion in denying Morrall parole. Morrall had argued that Davis’ public statements and record on parole decisions — he has overruled the Board of Prison Terms 117 out of 119 times in life-sentence cases, according to Morrall’s counsel — establish that he has a blanket no-parole policy in such cases. “We conclude that a blanket policy of the denial of parole for convicted murderers would be unlawful,” Third District Justice Arthur Scotland wrote for a unanimous panel, “and that such persons are entitled to individual consideration. But political rhetoric does not establish such a blanket policy.” The court held that in order to get Davis’ decision overruled, Morrall had to show that “there is no basis in fact for [Davis'] decision.” The decision contrasts with the Second District Court of Appeal’s January decision in In re Rosenkrantz, 95 Cal.App.4th 358. In that case a divided Second District panel likewise ruled that the courts have power to review Davis’ parole decisions. That court then went on to overrule Davis and order parole for Robert Rosenkrantz, saying there was no evidence to support Davis’ finding of unsuitability. In a separate concurrence, Justice Miriam Vogel opined that Davis has adopted a blanket no-parole policy in violation of Rosenkrantz’s due process rights. Davis has argued that the courts have no power to review his parole decisions. Although Davis won Monday’s decision, the real battle isn’t until Oct. 8, when the state Supreme Court is scheduled to hear oral arguments in Rosenkrantz. Attorneys hope the Supreme Court’s ruling in the case will settle once and for all whether the governor is indeed giving due consideration to murderers or whether people who have paid their debt to society are getting short shrift by a governor wanting to appear tough on crime. In Monday’s case, Morrall, a 69-year-old former airline pilot, was convicted of second-degree murder in 1983 after shooting his wife seven times. Morrall has no other criminal record, a good disciplinary history and an offer of employment upon release. Davis’ decision to overrule the latest grant of parole focused on the circumstances of the crime, which occurred amid acrimonious divorce proceedings. Davis said Morrall had acted deliberately, out of anger at having to divide the couple’s community property and share custody of their children. Applying its deferential standard, the court concluded, “We cannot reject the governor’s conclusions that Morrall’s offense was particularly heinous, that his actions demonstrate an exceptionally callous disregard for human life and suffering or that the offense was inexplicable and demonstrates Morrall’s inability to control himself or his actions.” Justices Coleman Blease and Harry Hull concurred in Scotland’s opinion. One of Morrall’s attorneys, Stephan Klein of Latham & Watkins’ San Francisco office, said the parole statistics clearly show that Davis has a blanket policy. “We contend that the governor never considered [Morrall's] case,” Klein said after the Monday ruling. Supervising state Deputy Attorney General Allen Crown said he believes the Third District’s decision in In re Morrall, 02 C.D.O.S. 9754, foreshadows which way the Supreme Court will go. “The Third District is in the best position to understand how state government works. It deals with more government cases [because it's in Sacramento],” Crown said. “They accorded proper deference to the governor’s constitutional power.” Crown said he believes the Third District moved quickly because the justices wanted to weigh in on the matter before the Supreme Court looks at it. Briefings were completed in July and there were no oral arguments in the case.

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