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Chart: CA Supreme Court death penalty rulings While same-sex marriages brought lights, cameras and action to the California Supreme Court this year, the death penalty kept it grounded in grim reality. Both were the big stories of 2004, with the court nullifying nearly 4,000 gay marriages performed in San Francisco and handing down rulings in 23 death penalty cases. In 2005, the justices, under the guidance of Chief Justice Ronald George, will most likely escalate their death penalty work — both on direct appeals and habeas corpuspetitions — and the constitutionality of same-sex marriages could be before the court by year’s end, thanks to a fast-moving suit in San Francisco Superior Court that’s challenging state prohibitions. At the very least, gay issues should be prevalent. In June, the high court agreed to decide whether businesses could discriminate against same-sex couples based on marital status, and in September took up three widely followed cases that should clarify the rights of gay parents. “Next year should be a big year,” says Jon Davidson, who in late January becomes the legal director of New York’s Lambda Legal Defense and Education Fund. 2004 wasn’t only about weddings and executions. All seven justices rallied around a young San Jose student, saying that his “dark poetry” didn’t constitute a criminal threat ( In re George T.,33 Cal.4th 620). Winemakers were told that they cannot use the Napa Valley moniker if their wines were produced from grapes mostly grown in the state’s other viticultural areas ( Bronco Wine Co. v. Jolly, 33 Cal.4th 943). San Francisco lawyers Raul Aguilar and Allen Kent got way too much of the court’s attention — and were sanctioned — for missing an oral argument on a cold February day in Sacramento ( In re Aguilar, 34 Cal.4th 386). Along the way, the court’s seven justices appeared to set a record for consensus by ruling unanimously in 94 of their 125 rulings and 6-1 in 15 others. That’s nearly 88 percent of the court’s opinions. When all is said and done, however, 2004 will be remembered for the court’s death penalty work and its hearing and decision in two marriage cases consolidated in Lockyer v. City and County of San Francisco, 33 Cal.4th 1055. The court’s justices literally saw the marriage case headed their way, what with thousands of male-male and female-female couples from around the world lining up outside their McAllister Street windows for 29 days in February and March to take their vows as “spouses for life.” When the justices finally heard arguments in the case on May 25, legions of media rolled up and crowds filled the courtroom to overflowing. Married couples milled around outside, and lawyers for the city remained optimistic — until the hearing got under way and the justices gave the strong impression that the city overstepped its authority by issuing licenses. On Aug. 12, the court ruled against the city and annulled all the same-sex marriages. Even so, the court left subtle hints that gave marriage-backers a ray of hope. Justice Carlos Moreno commented about the “substantial cloud of unconstitutionality” that hovers over the state’s laws banning same-sex marriage, while Justices Kathryn Mickle Werdegar and Joyce Kennard wrote separately to say they saw no sense in invalidating the marriages. Kennard even wrote that gay couples “have waited years, sometimes several decades, for a chance to wed, yearning to obtain the public validation that only marriage can give.” That cheered Shannon Minter, legal director of San Francisco’s National Center for Lesbian Rights and one of the lawyers who last week argued in San Francisco Superior Court in support of gay marriages. “That comment, and the tenor of the decision generally,” Minter says, “gives me hope that the court will recognize the humanity of lesbian and gay couples and their children and will rule that the state cannot continue to exclude us from marriage.” DEATH PENALTY PUSH Even while facing the spotlight in the same-sex marriage cases, the court continued, as it has in recent years, hacking away at its death case backlog. The justices ruled in 23 death penalty cases, three more than last year, seven more than 2002 and 12 more than 2001. This year’s total comprised about 19 percent of the court’s 125 opinions. “We’re definitely moving along,” Chief Justice Ronald George says, noting that the pace isn’t about to slow. Two automatic appeals were heard by the court in Sacramento in November and three more in San Diego earlier this month. Another three are on next week’s San Francisco oral argument calendar. That means eight more death penalty rulings by April. Chief Justice George credits the increased output to a capital central staff that handles nothing but death cases and the court’s efforts to entice more lawyers to represent death row inmates. The hourly pay is up to $125, investigative fees have been increased to $25,000, and the time to file a habeas corpuspetition was extended to 180 days following the final due date of the direct appeal’s reply brief. “We’ve done a number of things that makes it more attractive,” George says. But some court watchers say too much emphasis on the death penalty could be a bad thing. “Their biggest challenge is to keep whittling away at the death penalty backlog,” Santa Clara University School of Law professor Gerald Uelmen says, “without letting it affect too dramatically their normal caseload of civil and criminal cases.” Dennis Maio, counsel in Reed Smith’s San Francisco office and the former director of the court’s capital central staff, agrees, saying that the attention focused on death cases deprives other, possibly more pressing issues, of the court’s resources. Death penalty cases “present the most common garden-variety claims,” he says. “They are not good vehicles to develop the criminal law.” One lawyer who represents death row inmates, but requests anonymity, has a more pragmatic reason for opposing the court’s increased output on direct appeals. “The court is mass-producing opinions, with very little individualized analysis,” this lawyers contends. “I predict more and more Ninth Circuit [U.S. Court of Appeals] reversals.” The chief justice acknowledged at a press meeting earlier this month that California death row inmates are more likely to die of old age than by execution. And he agreed the system is “dysfunctional.” He also told reporters he could have lawyers “in 48 hours” for all 118 death row inmates currently without representation if the state lowered its standards to those of Texas and Florida. But he won’t do that. “We’re striving for quality representation,” he said, “and I personally have to approve every attorney who is appointed.” After reversing death sentences four times last year, the court followed suit in 2004 with three. In two, the justices found judicial error and in the third, ineffective trial counsel. The court also issued orders to show cause in four habeas corpuscases this year, demanding that the state explain why the death penalty shouldn’t be overturned in each because of either ineffective counsel or misconduct by a prosecutor, judge or juror. Two other OSCs — issued last year — were argued before the court earlier this month in San Diego. One questioned whether a Los Angeles-based deputy district attorney acted inappropriately by arguing inconsistent theories in two separate death penalty trials involving one murder, and the other whether a convicted murderer should be spared execution because of mental retardation. The chief justice says the recent spate of OSCs is a byproduct of discussions between himself and local federal judges. In cases in which an inmate makes a prima facieargument that there was error, he says, the court intends to seek an evidentiary hearing. “It’s less of a burden on the federal courts,” George says. “They are less inclined to second-guess what the state courts have done.” George also has continued his personal campaign to find lawyers for the tough habeas corpusportion of inmates’ cases. As of mid-December, about 145 death row prisoners had no habeascounsel. George is trying to get major law firms involved. A similar attempt failed in the late 1980s, but the current project has been set up in a way that limits firms’ costs and time commitment. One death penalty lawyer who requests anonymity says the big firms don’t have the necessary expertise and that schooling and hand-holding by death penalty experts won’t be enough. Another predicts few firms will sign on. “Even if the court were to pay a huge amount of money, you wouldn’t scare up enough good people. You couldn’t scare up bad people,” Reed Smith’s Maio says. “People don’t want to do the work. It’s tedious and draining and tiring, and most of the time you lose.” Mike McKee and his partner were among the couples whose marriages were annulled by the state Supreme Court in August.

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