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In a nearly complete victory for Gray Davis, the California Supreme Court on Monday declared that the governor has no blanket policy denying parole to murderers, and set a very high bar for any court to overturn his parole decisions. In an 89-page opinion, Chief Justice Ronald George held that while trial court judges have the authority to review the governor’s parole determinations — which Davis had disputed — they are required to approve them if the governor provides a minimum of “some evidence” to support his reasoning. George said the “some evidence” standard is “extremely deferential” to the governor. The court’s 5-2 decision comes in the highly publicized case of Robert Rosenkrantz, who was sentenced to 17-years-to-life in prison for the 1985 second-degree murder of Steven Redman, a fellow teen-ager who threatened to reveal that Rosenkrantz is gay. In 1999 and 2000, the state’s Board of Prison Terms had recommended parole only to see Davis reverse the decisions on the ground that Rosenkrantz — who had planned the murder for a week and had shot his victim 10 times — was still unsuitable for release. Monday’s ruling means that Rosenkrantz remains in prison. His lawyer, Donald Specter of San Quentin’s Prison Law Office, said it gives Davis free rein to continue denying parole at a high rate. Since coming into office, Davis has vetoed the parole of 47 of 49 convicted murderers. Even though the high court said Davis is subject to judicial review, an obviously disappointed Specter said, the “some evidence” standard won’t be hard for Davis to meet. “It’s so deferential that it’s almost meaningless,” he said. “It’s going to be impossible for any court to overrule the governor.” Adding to Davis’ win Monday was the fact that the court held that there was, indeed, “some evidence” to support parole denial for Rosenkrantz, and that the governor’s decision was not barred by the ex post facto clauses of the state and federal constitutions, even though the murder was committed three years before voters in 1988 gave the governor the ultimate power over parole decisions. The latter point resulted in a sharp dissent by Justice Ming Chin. Justice Joyce Kennard concurred. Davis had fought the case since Los Angeles County Superior Court Judge Paul Gutman ruled that the governor had no basis for denying Rosenkrantz parole and that Davis violated state law by having a blanket policy rejecting parole for murderers. Los Angeles’ 2nd District Court of Appeal affirmed. Davis appealed, saying that the state’s voters, by passing Proposition 89 in 1988, gave him parole power, and that trial courts second-guessing him violates the separation-of-powers doctrine. The California Supreme Court disagreed. “Contrary to the governor’s contention, judicial review to ensure that gubernatorial parole decisions are supported by some evidence neither overrides the merits of the decisions nor controls the exercise of executive discretion,” George wrote. “As the United States Supreme Court explained in a related context: ‘Requiring a modicum of evidence to support a decision (to deny parole) will help to prevent arbitrary deprivations without threatening institutional interests or imposing undue administrative burdens.’” George pointed out that the “some evidence” standard is “extremely deferential” and requires courts to give the governor’s decision — if explained in writing — great weight. Justices Marvin Baxter and Carlos Moreno, as well as 3rd District Justice George Nicholson sitting by designation of the court, concurred. Moreno and Justice Kathryn Mickle Werdegar authored separate concurring opinions. The ruling seems to vindicate Sacramento’s 3rd District Court of Appeal, which in September strongly backed the governor’s authority to overrule parole in a separate case. Davis, in a prepared statement, commended the California Supreme Court. “The court held the governor’s decision must be supported only by ‘some evidence,’” the statement said, “and that courts are to give deference to the governor’s decision in discharging this constitutional responsibility.” Robert Wilson, the Los Angeles-based deputy attorney general who argued the case for the governor, called Monday’s ruling “a well-reasoned opinion, which upholds the voter’s intent in adopting Proposition 89.” In his dissent, Chin adamantly argued that the governor’s decision regarding Rosenkrantz should be overturned in that it violated the rules against ex post facto laws. “The governor, acting pursuant to a law enacted after the crime, has blocked Rosenkrantz’s parole and ordered his continued incarceration,” Chin wrote. “Changing the law in this way after the fact to prolong Rosenkrantz’s incarceration is impermissible.” Chin also argued that the majority’s holding flies in the face of the U.S. Supreme Court’s 2000 ruling in Garner v. Jones, 529 U.S. 244. “ Garner,” he wrote, “makes clear that retroactive changes in parole law, even procedural ones — other than mere changes in the exercise of discretion — are impermissible if they create a significant risk of prolonging the prisoner’s actual incarceration.” The addition of the governor’s authority to deny or grant parole — despite the recommendation of the Board of Prison Terms — did just that, Chin said. “Previously,” he wrote, “convicted murderers had to convince the board to release them, a very difficult thing to do, as this record attests. Now they not only must convince the board, they also must convince the governor to affirm the board’s decision.” Specter, Rosenkrantz’s lawyer at the Prison Law Office, said he isn’t giving up. He vowed Monday to go to the federal courts, where he will raise the due process and ex post facto issues. The case is In re Rosenkrantz, 02 C.D.O.S. 12006.

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