Release Date:  August 21, 2012
Contact:  Michael Rushford
(916) 446-0345

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In a decision announced today, the California Supreme Court held that the lengthy, repetitive habeas corpus petitions filed in most death penalty cases are an abuse of the process. The court held that lawyers representing condemned murderers need not raise every conceivable issue to adequately serve their clients, following the lead of the United States Supreme Court and flatly rejecting the contrary position of the American Bar Association.

The Sacramento-based Criminal Justice Legal Foundation had joined the case In re Reno at the invitation of the California Attorney General to submit argument encouraging today’s decision.

Writing for the unanimous court, Justice Kathryn Werdegar noted, “To raise a multitude of untimely claims without making a plausible effort to demonstrate a proper justification of timeliness, or without any justification at all, is an example of abusive writ practice.”

Every condemned murderer gets a direct appeal to the California Supreme Court for a review of the trial record. He further gets an attorney appointed for a second review, called habeas corpus, in which he can bring in facts outside the trial record. Today’s decision involves additional habeas corpus petitions after the first. The capital defense bar has adopted a tactic of routinely burying the courts with massive petitions raising hundreds of claims, including claims already rejected in prior reviews of the case and claims that simply put a new spin on previously known facts. Very rarely is there any question that the defendant committed the killing.

“In today’s decision, the Court has taken a first step to pare back the time and tax dollars wasted on unnecessary, repetitive appeals on claims that typically have nothing to do with the guilt of the murderer,” said Foundation Legal Director Kent Scheidegger.

The case involves successive petitions for repeated reviews of claims against a death sentence, some of which have already been reviewed and rejected. Harold Memro, a pedophile, was convicted and sentenced to death for the 1976 murders of two Los Angeles area boys, aged 10 and 12, and the 1978 kidnapping, sexual assault, and murder of a 7-year-old boy. During police questioning, Memro confessed to slitting the throats of the first two boys and strangling the third boy with a clothesline. In 1985, a California Supreme Court decision authored by Chief Justice Rose Bird overturned the conviction and sentence, finding that the trial judge had improperly denied the defense the opportunity to investigate complaints against the police officers who questioned Memro. Two years later, another jury convicted Memro of the murders and again sentenced him to death. The California Supreme Court affirmed the conviction and sentence in 1995. A year later, the U. S. Supreme Court refused to hear Memro’s appeal.

In 1998, Memro, who had changed his name to Reno, filed a federal habeas corpus petition raising numerous claims which had not been presented in state court. The following year, the District Court struck the unexhausted claims and ordered Reno to file them in the California Supreme Court. In 2004, Reno filed his petition. Over the next six years, the Court granted to the parties 21 extensions of time to file argument. In 2010, the Court ordered Reno to present argument explaining how his petition, which failed to show why multiple claims should be considered at this late date, did not constitute an abuse of legal process.

In 2012, the Court invited briefing on whether sanctions can be imposed against attorneys in these circumstances.

In a scholarly amicus curiae (friend of the court) brief, the Foundation argued that California has strayed far beyond what is required by the United States Supreme Court by allowing meritless, defaulted, and frivolous claims to be introduced and considered in death penalty cases. While defense attorneys and the American Bar Association have argued that the failure to introduce every conceivable claim, no matter how weak, constitutes ineffective assistance of counsel, CJLF cites Supreme Court precedent which emphasizes the importance of winnowing out weak claims and focusing the appeal on “a few key issues.” The Foundation asked the court to clarify that defense counsel can and should focus on the few substantial claims in a case rather than burying the courts in a blizzard of frivolous contentions.

In addition to accepting that principle, the Supreme Court announced new rules to enable it to manage the repetitive petitions. The petition must justify any untimely or repetitive claim from the beginning, not waiting until later in the process. In addition, petitions after the first are limited to 50 pages unless the Chief Justice gives permission for a longer petition on a showing of good cause. Although not imposing monetary sanctions on defense counsel in this case, the court warned defense lawyers that sanctions may be imposed in the future.

“The problems with delay and expense in the California death penalty are entirely fixable. Other states have fixed the same problems, and we have known for years how to fix them here. If our Legislature lacks the backbone, the changes can be made through the courts. Today’s decision is an important first step.”

CJLF Legal Director Kent Scheidegger can be reached for comment at 916-446-0345.