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California Chief Justice Ronald George on Tuesday defended his proposal to let lower appellate courts hear some death penalty cases and offered more details about his court’s controversial decision to dismiss a major toxic-tort case rather than have a majority of pro tem justices fill in. Meeting with about 20 reporters in his San Francisco chambers for his annual holiday press conference, George said there’s “nothing sacrosanct” about the state’s highest court having first crack at death cases, and that the presiding justices of the state’s six appellate courts signed off on his plan during a Dec. 3 meeting. George announced Nov. 19 that the court intends to seek a constitutional amendment that would let it assign up to 30 death penalty cases a year to the lower appellate courts. “This is not something that is designed to reduce the California Supreme Court’s workload,” he said, but rather to cut into a backlog of death penalty cases that has remained impenetrable for years. There are currently about 660 inmates on death row, and George said Tuesday about 80 fully briefed cases are awaiting review. “We could turn into nothing but a death penalty court,” he said, “and never dig ourselves out of the hole.” The court issues about 23 death penalty rulings a year. George said the presiding justices of the appellate courts plan to come up with recommendations for how to distribute the cases around the state and to allocate resources, such as more staff, that might be needed. George said he would look into hiring additional pro tem justices as backups to help with the appellate courts’ regular work, and appeal to the state Legislature for additional appellate judgeships. The Supreme Court would keep cases that present “novel issues,” he said. But that doesn’t mean the cases going to the appellate courts have no merit and should be automatically affirmed, he added. Getting attorneys to take death penalty cases � an eternal problem that has vexed the court � might be easier at the intermediate appellate level, the chief justice said. Lawyers might be more comfortable dealing with the more familiar appellate courts, he said, and groups such as the San Francisco-based First District Appellate Project could help find representation for condemned inmates. George said his current proposal � which he hopes that the Legislature will approve for the November ballot � doesn’t include death row inmates’ more complicated habeas corpus cases, but indicated that the high court is considering having capital habeas petitions heard in the superior courts, which already handle habeas petitions in non-capital cases. Asked whether a death penalty opinion by the appellate courts might lack the clout of a Supreme Court ruling when on federal habeas review, George said prosecutors and defense lawyers would have the right to seek further review by his court. The court could grant full review, or issue a summary affirmance. “We would have enough of our hands on it,” he said, “for it to be a judgment of the highest court.” He also said he has faith in the lower courts’ ability to handle death cases because they already make decisions in complicated murder cases � those involving life without the possibility of parole � that fall just short of death penalty cases. “Most of these cases,” George added, “involve the application of settled law.” The chief justice admitted the most difficult thing might be getting the state Legislature � controlled by Democrats, many of whom oppose the death penalty � to approve a ballot measure by the required two-thirds majority. He also mentioned he had heard about the possibility of competing measures, one of which, he said, involved speeding up death penalty procedures. As for the court’s Nov. 1 decision to dismiss Lockheed Litigation Cases, S132167, after four of the court’s justices recused themselves for having conflicts of interest, George said he never meant to undermine the pro tem system when he told the press at the time that a court missing four permanent justices wouldn’t have “precedential value.” And it didn’t clarify things much Tuesday when he rhetorically questioned whether lawyers would have the same faith in a ruling by an appellate court if a three-justice panel was comprised entirely of superior court judges sitting pro tem. “The whole purpose of the Supreme Court,” George said, “is to give guidance.” And what kind of guidance would there be, he asked, if there isn’t full confidence that the ruling would have come out the same way with the court’s permanent members? George told reporters not to assume that justices always recuse themselves because of personal financial conflicts. (It was widely reported that Justices Joyce Kennard, Marvin Baxter and Carol Corrigan belatedly recused themselves after finding they had stock in one of the oil company defendants.) George said that one justice, whom he didn’t name, had a relative die, and then became trustee of the deceased’s estate, which held stock in one of the parties to the case. However, George said, in the wake of the dismissal, some justices “have taken steps to reduce their portfolios.”

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