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SAN JOSE — A South Bay judge is bucking the stiff parole policies of the governor and the state Board of Prison Terms � as well as a recent California Supreme Court decision that backs their actions. Santa Clara County Superior Court Judge James Emerson has ordered parole or a new parole hearing for six inmates who have argued in habeas corpus petitions that they are being unjustly denied release, according to the attorney general’s office. Emerson is the only judge in the state taking such a stance, the AG’s office says. “There are courts that have granted some petitions, but no other courts are doing it across the board,” said Deputy AG Julie Garland, who supervises the habeas unit of the AG’s correctional law section. “Santa Clara is issuing more orders to show cause, and they are granting a far greater number of petitions.” Gov. Gray Davis has granted parole to only six prisoners convicted of murder since taking office, even overturning his own Board of Prison Terms when it has recommended release in hundreds of cases. Though the Davis administration has never officially said it has a “no parole” policy for convicted killers, the governor ran for office in 1998 pledging he would not grant release to anyone imprisoned for murder. Prisoner rights advocates, defense attorneys and inmates have challenged Davis and the Board of Prison Terms over the issue, but in December the Supreme Court seemed to quiet the controversy when it issued In re Rosenkrantz, 29 Cal.4th 616. In Rosenkrantz, the court determined that Davis did not have a blanket no-parole policy, and that as long as the governor and the parole board presented “some evidence” to support their rulings, courts should be “extremely deferential” to the administration’s parole decisions. But Emerson, in court documents, says the high court didn’t have all of the information when it issued Rosenkrantz. After the justices decided the Rosenkrantz case, the attorney general’s office provided Emerson parole statistics since Davis took office. The judge had ordered the AG to research the numbers as part of a habeas case. The AG, in a brief filed Feb. 18, found that Davis’s parole board held approximately 11,481 parole hearings for inmates convicted of murder and recommended parole for 322. Davis, at that point, had vetoed 319 of those parole recommendations. “The Rosenkrantz case was decided based on a trial court record two years ago,” Emerson said in a March order. “In the decision, the [Supreme] Court did not have before it the overwhelming statistics available now, including the substance of the governor’s recent parole grants.” The judge didn’t return calls seeking comment for this story, but in his orders he writes that the governor’s 1998 campaign pledge, combined with statistics that parole has been granted less than 3 percent of the time during Davis’ tenure, means the governor is abusing his discretion on parole. “It appears that the governor has a no-parole policy, and his hand-picked board is assisting him in implementing this policy,” Emerson wrote in a January order paroling convicted killer Javier Cortinas. The parole board had previously denied Cortinas’ release. In the past year, Emerson has issued orders to show cause and granted evidentiary hearings in 16 habeas cases filed by inmates denied parole, Deputy AG Garland said. Ten cases remain pending. In the six cases that have been decided, Emerson has granted the habeas petition. The judge signed the latest petition Aug. 21, ordering that inmate Ebrahim Sadeghy be granted a new parole hearing within 10 days or be paroled. Emerson’s decisions have sent the AG’s office to the Sixth District Court of Appeal, where it has been seeking to halt the releases and new parole hearings. So far, the Sixth District has granted temporary stays in all six cases. Garland said Emerson’s position on parole cases is puzzling. “Most courts have taken Rosenkrantz as establishing a great deal of deference for the governor and the Board of Prison Terms. They are acting on the petitions accordingly,” Garland said. “It is fair to say we disagree with the rulings he has made. His rulings express strong feelings about who he feels is suitable for parole.” But defense attorneys defend Emerson’s actions, saying he is just deciding cases based on the facts. “Judge Emerson is making every effort to follow the law. He is not trying to be activist,” said Allen Schwartz, a San Jose defense attorney who is handling five of the pending habeas cases. Schwartz contends Emerson is adhering to the standard laid out in Rosenkrantz. “All Judge Emerson is doing is making sure the decisions made by the parole board and the governor are supported by some evidence,” Schwartz said. Defense attorneys also say the judge simply recognizes that the parole process has been politicized by Davis. “The Board or Prison Terms is not an unbiased decision maker. They are denying parole based on reasons not supported by the record,” said Santa Clara Deputy Public Defender Barbara Fargo, who is handling several of the habeas cases in Emerson’s court. Emerson, a Republican first appointed to the bench by Gov. George Deukmejian, dissects parole rulings. In Cortinas, Emerson pointed out that the board denied parole, in part, because Cortinas needed more psychological counseling. Yet when Cortinas’ attorney told the parole board that there was just one program Cortinas had not completed and it had a two-year wait list, the board’s presiding commissioner responded he didn’t know what treatment options were available. “It is apparent the board made its findings on these points without any specific information regarding appropriate or available programs,” Emerson wrote. In his Cortinas order, Emerson also takes a shot at Davis’s judicial appointment process. “The governor has stated that his judicial appointees should follow the positions expressed in his 1998 campaign or resign. � While these comments would have little effect on the judiciary since the governor has no power over judges once they are appointed, the governor does have the power to refuse to renew” the terms of parole board members.

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