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Chart: Vote Tally Chart: Breakdown of 4-3 Decisions While the California Supreme Court hammered out 106 rulings in 2003 — more than three-fourths unanimous — the decisions themselves weren’t the story. Instead, it was death and politics. The court attacked its death penalty backlog at a pace rarely seen before, refused to get involved in the political fray over the recall of Gov. Gray Davis, and watched as one of its own stirred up a national furor after being tapped for a key federal court seat. Along the way, there were rulings on important intellectual property and Internet issues. The court gave its blessing to gay adoptions by supporting the main method used by same-sex couples to become parents. There was a fun, but serious, First Amendment decision in a case involving comic books and rock stars. And there was the court’s struggle with a tight budget, which Chief Justice Ronald George warned reporters in December likely would be a bigger story in 2004. But the death cases, the recall and Justice Janice Rogers Brown’s stalled nomination to the D.C. Circuit U.S. Court of Appeals loomed large over the year. In regard to the death penalty, the court’s seven justices surprised many by ruling on 20 capital cases in 2003. By comparison, the court ruled on 16 death cases in 2002 and only 11 in 2001. “It’s way up,” said Santa Clara University School of Law Professor Gerald Uelmen, an avid court watcher. “And I’m sure it’s a high priority with George to move these cases.” Justice Carlos Moreno, a moderate Democrat who joined the court in 2001, added to the tally in 2003 by issuing his first death penalty ruling on June 9. The 6-1 decision, with Justice Joyce Kennard dissenting, upheld the sentence of a man convicted of the 1984 murders of three teenaged girls in the El Dorado National Forest near Placerville. Some lawyers have speculated that the jump in death decisions was pure happenstance, but George attributes it to a pay increase for capital case lawyers and the 2002 establishment of a Supreme Court staff dedicated to death cases and habeas corpus appeals. “Though they are not working on the merits of the capital cases,” he said earlier in the year, “the fact that they are working diligently on all the interim applications and motions that come up have served to expedite the cases. “Once we get the briefs in,” he added, “we have been able to work on them pretty expeditiously.” The court also has made some headway — albeit glacially — in ensuring that condemned inmates have counsel for their automatic appeals. In late 2002, court records show, 144 prisoners had no lawyer for the direct appeal, but that dropped to 136 in 2003. On the other hand, the court is still having trouble finding lawyers to handle prisoners’ habeas appeals — which are considered much more difficult than the direct appeal. The number of inmates who had appellate counsel, but no habeas corpus lawyer, increased from 103 in 2002 to 126 as of December. “That problem’s getting worse,” Uelmen said. “They are finding lawyers to do the direct appeals, but having great difficulty finding lawyers to do the habeas .” Chief Justice George is well aware of the problem but remains hopeful that a solution will be found eventually. “I focus most importantly on the direct appeal because that’s a constitutional right,” he said recently. “There is no constitutional right to have counsel on habeas , but we, of course, provide it.” Earlier in the year, George said he wasn’t about to tackle the problem, as some states do, by appointing lawyers who aren’t qualified to handle death cases. “I’d rather have the problem of a backlog the way we have because we are trying to get effective counsel appointed,” he said, “than have the problem of Texas and other states going lickety-split through the process, and then finding there are real problems.” The situation could ease someday because of an unexpected trend. As Chief Justice George has noted — and national statistics show — fewer death judgments have come out of trial courts across the country in recent years. The state Supreme Court’s own reports show that death verdicts in California dropped from 42 in 1999 to 23 in 2003. “Jurors are less inclined to impose the death penalty,” Uelmen said. “Prosecutors are less inclined to charge it. And I think all the exonerations [around the nation] had a tremendous impact on public support.” Almost as surprising as the sheer number of death decisions the Supreme Court handled in 2003 is the fact that the tough-on-crime court reversed in four of the cases. That’s compared to one each in the previous two years, and the reversals have come from some of the court’s most conservative members. On Jan. 28, Justice Marvin Baxter, in a unanimous decision, vacated the sentence of Michael Burgener, accused of the 1980 killing of a Riverside convenience store clerk. The court ordered the trial judge to re-examine the evidence jurors relied on in convicting Burgener. On April 10, the court, in a unanimous ruling by Justice Brown, overturned the sentence of Omar Dent III. The justices said that Dent, convicted of murdering a Los Angeles County merchant in 1988, was wrongly denied the right to represent himself. On June 2, the court voted unanimously to reverse the sentence of Jesus Hernandez, convicted of the 1988 killing of a prostitute in Stanislaus County. The opinion, by Justice Kennard, concluded that there were numerous errors during the penalty phase. And lastly, on Aug. 29 the court, by a 4-3 vote, overturned the conviction of James Heard, accused of the savage 1990 torture murder of his girlfriend’s 11-year-old daughter in Los Angeles. Chief Justice George, in a sharply worded ruling, blasted the trial judge for tainting the penalty phase by dismissing a prospective juror. Stephen Barnett, an emeritus professor of law at Boalt Hall School of Law, speculated that the justices could be reacting to the court’s high rate of reversals in the Ninth Circuit U.S. Court of Appeals. “It may be that they’re taking a closer look for that reason,” he said. Then again, Barnett added, it could simply be that the court handled so many direct appeals in 2003. “The denominator is greater,” he said. “They had more death penalty cases, so as a percentage it might not be out of line.” The court’s low point of the year, Barnett argues, came on Aug. 7 with its action — or inaction — in the recall of Gov. Davis. Faced with five cases dealing with different aspects of the election process, the court punted by rejecting petitions that could have prevented or postponed the Oct. 7 recall. “The California Supreme Court did not look good, having nothing to say in that case,” Barnett said. “This was a serious issue. “This is the issue,” he added, “that then went to the Ninth Circuit, which produced two decisions — and distinguished itself.” The Supreme Court rejected four of the cases unanimously, but George and Moreno dissented bitterly in Burton v. Shelley , 03 C.D.O.S. 7066, which argued that $3,500 and 65 signatures was too low of a threshold to get candidates on the ballot. George and Moreno said they would have ordered the secretary of state to stop preparing for the Oct. 7 recall. “The substantial questions that are raised by this petition involve fundamental rights of all voters in the recall election, and of the potential candidates on the recall ballot, that could well affect the outcome of the recall election,” George wrote. “These questions should be resolved before the election, rather than after the election in the event the recall is successful.” The majority of Baxter, Brown, Ming Chin and Kathryn Mickle Werdegar replied that the chief justice was relying on a formula for recalls that had been removed from the Constitution in 1974. “The secretary of state,” they wrote, “cannot be faulted for failing to apply a standard that does not explicitly appear in current law.” A three-judge panel of the Ninth Circuit postponed the election a few weeks later over concerns about punch-card ballots. But an 11-judge panel of the federal court restored the election a week later. What’s bothersome to Boalt Hall’s Barnett is that the Supreme Court’s decisions on the recall are not in the official reports but were issued only as so-called speaking orders. “That means once the advance sheets have been replaced by the hard cover, those cases will be lost from the historical reports,” he said. “The minutes disappear and so will these decisions.” One of the biggest events of the year involved only one member of the court — Justice Brown, whom President Bush nominated to the D.C. Circuit in July. The nomination, following months of speculation that the conservative Brown was on the president’s short list for the U.S. Supreme Court, brought liberal opposition out of the woodwork. The NAACP and People for the American Way quickly issued a report calling the 54-year-old justice “the far right’s dream judge,” and accusing her of being hostile to constitutional rights and failing to follow established precedent. Comparisons to extremely conservative U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas were common. By the time Brown’s confirmation hearing in the Senate Judiciary Committee came up in October, the lines were drawn –it was clear that the Democrats would mount a filibuster — and Brown was shown no mercy. Sen. Richard Durbin, D-Ill., called her a “conservative judicial activist — plain and simple.” Home-state Sen. Dianne Feinstein called her “extraordinarily intemperate.” Other Democrats were just as harsh. Many pointed to rulings by Brown that they felt threatened abortion rights, personal freedoms and the environment. They noted that her often-pointed dissents have earned Brown hard feelings from fellow justices. But most tellingly, they dredged up several of Brown’s speeches, which the senators felt proved the justice to be an unrelenting ideologue with views far outside the mainstream of American society. Brown stood her ground, backed by the Republicans, particularly Judiciary Committee Chairman Orrin Hatch, R-Utah. She insisted she would follow precedent, was not an ideologue of any persuasion, and that her speeches were aimed at stirring the pot. “Speeches,” she said, “are sometimes an opportunity to think out loud.” Eventually, Brown’s nomination was sent to the Senate floor on a party line vote. But there it sits, with little likelihood of moving on. Aside from Brown being in Washington, D.C., quite a bit, the nomination — and the circus surrounding it — seemed to have little, if any, effect on the workings of the California Supreme Court. “Absolutely none,” Chief Justice George said recently. “This has not changed anything absolutely at all.” Santa Clara Professor Uelmen echoes that, even noting that Brown once again authored the most decisions of any other justice in 2003 — something she’s done the previous two years. Brown wrote 19 decisions for the year, with Justice Chin coming in second with 18. “I found that surprising because she had so much else going on,” Uelmen said, “but she managed to keep on top of her calendar. It certainly didn’t impact her productivity.”

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