Release Date:  July 6, 2012
Contact:  Michael Rushford
(916) 446-0345

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On July 5, 2012, Scott Peterson filed his 423-page opening brief in the appeal of his March 16, 2005 death sentence, arguing, among other things, that he did not kill his wife Lacy or his unborn son Conner in 2002. So why did it take seven years to file the opening brief?

The California-based Criminal Justice Legal Foundation argues that most of the delay in Peterson’s case, and most other death penalty cases, is an unnecessary waste of time.

First, there was a four-year delay in appointing counsel. The state’s judicial rule-making authority, California's Judicial Council, has severely limited the pool of attorneys allowed to take capital appeals by imposing a restrictive definition of who is deemed "qualified." California rules go far beyond what federal law and most other states require. In addition, criminal defense organizations including the American Bar Association assert that a competent capital defense lawyer must bury the appellate courts with paper in the form of massive documents briefing every conceivable point, contrary to United States Supreme Court precedent. Few lawyers want to do this kind of work, and California allows lawyers to take appointments for noncapital felony appeals (a comfortable practice for which there is a surplus of lawyers) while declining to take capital ones.

Second, California’s rules and its Supreme Court allow lawyers far too much time and too many pages to file the brief. The defense side likes to point to the massive records in California capital cases. The rule provides that the brief be filed in 210 days plus 15 days for each 1000 pages of record over 10,000. The record in this case was indeed very large, but 44% of it was jury questionnaires, and the questionnaires filled out by jury pool members who neither served nor were challenged are irrelevant. Then despite the long time granted by the rule, counsel asked for and received nine extensions of time to file. Why does the California Supreme Court meekly give counsel so many extensions of time? Because it does not have enough other lawyers available to crack down on the ones who needlessly delay.

"These are the reasons it took seven years from the trial court judgment to the appellant's opening brief—problems that are completely fixable at no additional cost if California's Legislature, Judicial Council, and Supreme Court only had the backbone to do so," said CJLF Legal Director Kent Scheidegger.

Kent Scheidegger is available for comment at 916-446-0345.