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May 18, 2009

Another example of the long slog of seeking death in California

The Los Angeles Times has this interesting new article on the administration of the death penalty in California, which is headlined "'Dysfunctional' death penalty racks up 28-year, $5-million tab: And that's just for one case. Michael Ray Burgener's death sentence in the murder of a 7-Eleven clerk has been overturned multiple times, and lawyers say his appeals could span another 15 years." Here are a few details:

Burgener, sentenced to death for murder in 1981, has yet to complete his automatic appeal before the San Francisco-based California Supreme Court. His case has ping-ponged from trial courts to appeals courts over 28 years, and he still does not know whether he will be sentenced to die from lethal injection or spend the rest of his life in prison.  Given how long his appeals are taking, there is not likely to be any practical difference....

Burgener's tale illustrates why executions remain relatively rare in California and why old age is the most common cause of death on death row.  He was sentenced to death in the 1980s, when capital punishment cases began to escalate and courts grew overwhelmed.  The pace of justice, always slow when it comes to the state's death penalty, can grind to a near halt when new judges and new lawyers take over an old case.

The judge who presided at Burgener's penalty retrial is dead.  The judge who replaced him is now dead. The attorney who defended Burgener at trial is dead.  And the prosecutor who won the guilty verdict no longer works for the Riverside County District Attorney.  None of the state high court justices who heard his first appeal are on the court anymore.  The condemned man has outlasted them all.

Lawyers estimate that Burgener, 58, may have 15 years of appeals left if he is again sentenced to death. His case would then return to the state high court for review.  The court also would have to review a constitutional challenge of his sentence. If that sentence is denied, Burgener could start all over again in federal court.

May 18, 2009 at 07:36 AM | Permalink


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Of course this is not a reason to end the death penalty. It's a reason to undertake reforms that do not permit such outlandish gaming the system. The notion that it takes 28 years to reliably determine whether the defendant did it and was afforded a fair trial and sentencing is preposterous. World War II was won in one-seventh the time.

In my state (Virginia), delays like this would not be, and are not, tolerated. It's just running the clock, pure and simple. The solution is not to turn our backs on the jury's original judgment, but to implement that judgment in a way that does not permit defendants and their lawyers to make a laughingstock of the system.

Posted by: Bill Otis | May 18, 2009 12:49:42 PM

Yes, it's terrible when defendants "outlandishly game the system" by insisting on a fair trial. What con men -- insisting on their constitutional and statutory rights, even when the justice system repeatedly fails to effectuate those rights!

Posted by: CN | May 18, 2009 4:00:31 PM

An alternative take on the case is that this is the fallout when you have capital trials riddled with Constitutional errors. Instead of thinking about it as unconscionably long delays, we should all think it unconscionable that a capital trial could be run in such a deficient way. Close only counts in horseshoes, not in applying the Constitution -- particularly in the criminal trial context, and especially in the capital trial context.

Posted by: K. | May 18, 2009 4:02:26 PM

I agree with K. Criminal trials are riddled with serious constitutional errors because of a system that too often treats playing by its own rules as optional. And so what, the appeals court will find the error harmless anyway. The thing that distinguishes capital cases is that appeals courts often take the time to, you know, actually examine the errors and take them seriously.

Posted by: dm | May 18, 2009 4:39:55 PM

CH and K --

As ever, all blame goes to the system, none to the killer. Does this strike you as black-and-white thinking?

It has long been observed that there is no such thing as a perfect trial. As time drags on and on, the only realistic question is whether it has been reliably established that the defendant is guilty in fact, and whether the trial and sentencing were characterized by basic fairness.

I suspect that both of you know that it could not possibly take 28 years to attain that sort of assurance.

The truth about these forever-and-a-day delays is that they are designed to achieve indirectly what the abolitionist movement cannot achieve directly, to wit, an effective end to the death penalty. Having failed to convince either the public or the courts that the DP should be abolished, the Left simply wages a guerilla war against its imposition. This may be OK as the strategy for an advocate, but it hardly warrants getting on one's high horse about how The Rest of the World Is to Blame.

Posted by: Bill Otis | May 18, 2009 4:54:40 PM

As someone who practices in California, I assure you that "all the blame goes on the system" is actually not a far-fetched conclusion or a sign of bleeding heart liberalism. California's review system for capital cases gets clogged at any number of junctures for reasons that have nothing to do with defense attorneys gaming the system, as you suggest, and in ways that I take it don't happen in Virgina. For example, direct appealate review goes to the California Supreme Court instead of the courts of appeal and state post-conviction petitions get filed in the Cal Supreme Court in the first instance, rather than the trial court. In a state where 800+ people have been sentenced to death in the past 30 years (contrast that with the less than 200 in VA), that creates a backlog. Also our federal district courts are woefully short of judges, which perhaps isn't a problem in your state. But again, that's a structural backlog that isn't the fault of defendants or defense attorneys no matter how you spin it. If you'd like to read a thoughtful analysis of some of the structural reasons for CA's capital review backlog, Judge Alarcon published an article on it recently: http://law.usc.edu/students/orgs/lawreview/documents/Alarcon_Arthur_80_4.pdf

Posted by: K. | May 18, 2009 5:24:31 PM

Bill said: "the only realistic question is whether it has been reliably established that the defendant is guilty in fact, and whether the trial and sentencing were characterized by basic fairness."

Agreed. And we have a justice system to answer those questions. It is that system which has taken 28 years (so far) to determine the proper sentence for Michael Burgener.

The delays that you term "gaming the system" have been either (1) allowed by the system or (2) created by the system. Do you really think the courts would allow Burgener to create a delay if the system did not already allow for it? Burgener has merely asserted his rights within the system. If you don't like the outcome, blame the system.

Posted by: CN | May 18, 2009 7:07:24 PM

"All blame goes to the system, none to the killer."

Gimme a break, Bill. Is that really the result of our criminal justice system? Is that what you see around you? I see a system that punishes killers quite severely, almost invariably with life in prison or death. No one -- not even defense attorneys, of which I am one -- believes that improving the system to be fairer to criminal defendants means that murderers will somehow become blameless. Murder is wrong and should be punished. That doesn't mean that murderers should receive anything less than trials that comport with the Constitution. I don't see how believing that the "system" should abide by its own rules is tantamount to condoning murder. To borrow your phrase, that strikes me as "black-and-white thinking."

Posted by: dm | May 18, 2009 7:35:19 PM

I couldn't agree more that the system needs changing. A 28-year delay (with more coming) is proof positive of that. But the reforms should be in the direction of reducing the delay, not increasing the opportunities for it. And the fact that the system needs changing is not inconsistent with the fact that the defendant's behavior also (and more urgently) needs changing. The system is merely appalling. The defendant is lethal.

If one were able to assess this case without looking through the emotionally-charged prism of the death penalty, I actually think we'd all agree. Justice delayed is indeed justice denied. A system so unsure of itself that it cannot impose the jury's judgment TWENTY EIGHT YEARS LATER is a system that needs to be streamlined pronto.

Posted by: Bill Otis | May 18, 2009 7:50:46 PM

Agreed Bill. Here's the thing, streamlining begins with prosecutors who, rather than pushing limits, prosecute cases well within established limits. That seems like it shouldn't be so hard, and yet a surprising amount of the time prosecutors know there's a strong possibility that an appeals court will overturn what the trial judge wrongfully allows, and yet prosecutors push the limit anyhow. It's almost as though the adversary system so enraptures them that they can't help but push the limits, even if it undermines the case on appeal.

Posted by: dm | May 18, 2009 8:01:27 PM

dm --

I worked in the USAO for the Eastern District of Virginia for 18 years, and never came across a prosecutor who knowingly provoked a reversal. That would seem like a lot of work just to have to go back to square one. And in fact, there were very few reversals; the government's winning percentage as appellee was way up in the nineties.

I doubt that prosecutors in Virginia are temperamentally any different from prosecutors in California. If Virginia can keep the average delay at seven years (which I think is the figure, though I'm not sure), there is no good reason California can't do the same.

Posted by: Bill Otis | May 18, 2009 8:42:45 PM

Not knowingly provoked.How about: Got so caught up in the adversary process that they chose a short-term gain in the trial court that nevertheless was legal error and led to a reversal.

Keep in mind the rate of reversal in death cases. Back in 2000 the Liebman study found the error rate was 41% nationally. In part you might attribute this to "liberal judges." But that doesn't seem to explain a 61% reversal rate in Mississippi, 54% in South Carolina. Those are hardly liberal jurisdictions. A substantial portion of those reversals are just clear legal error. Prosecutors, defense attorneys and trial judges all play a role in that. And keep in mind, that rate doesn't include cases where the appeals court found constitutional error and nevertheless found that error to be harmless.

I think prosecutors should do a better job of considering the likelihood of reversal when they make trial court decisions. Sometimes acceding to a defendant's motion (or objection) in the trial court would pay off on appeal. I read lots of trial transcripts where a little discretion by the State would go a long way towards shutting down obvious appeals.

Posted by: dm | May 18, 2009 10:00:26 PM

"If Virginia can keep the average delay at seven years (which I think is the figure, though I'm not sure), there is no good reason California can't do the same."

Agreed. From what I glean about how things happen in Virginia, in order to make that a reality, we here in California need to:
1. Sentence about 75% fewer people to death a year here in California
2. Train prosecutors better so they aren't making the errors in trials that lead to reversals.
3. Train judges better as to how not to violate the Constitution when they are presiding over capital trials. See, e.g., the Burgener case that this post is about.
4. Pay capital defense attorneys reasonable rates so that defendants have attorneys who are at least minimally effective.
5. Change the appellate review system so that cases don't get clogged at the Cal. Supreme Court.
6. Change the post-conviction review system so that petitions don't get clogged at the Cal. Supreme Court.
7. Perhaps increase the number of clerks & administrative staff on the Cal. Supreme Court to deal with the legal needs of a state that it 5x the population of Virginia.
8. Fill the vacancies in the California federal district courts and create the judge positions that have been lacking for years. They currently have some of the highest caseloads per judge in the county -- the Eastern District is #1 in the country with over 1000 active cases per district judge.

... and then, in 8 easy steps, the capital review system in California will be "fixed." I'm not trying to be snide, truly I'm not, but the situation here in California is so much more complicated that your "Virginia prosecutors are good / capital defendants are bad" explanation seems to account for.

Posted by: K. | May 18, 2009 10:21:33 PM

K. --

Actually, I agree with most of your suggested changes.

I don't see anything wrong with wanting to streamline a system that produces a 28 year (and counting) delay from judgment to execution.

If you were representing someone who had to wait anything like that to collect on a judgment, you'd be outraged, and properly so.

The mess in California was created by human beings and can be corrected by human beings. How odd that we bsckwoods yahoos here in Virginia are so much more efficient than the state that is home to Silicon Valley.

(Lest you think that I was always a yahoo, I grew up in a suburb of Philadelphia and went to law school at Stanford, which certainly seemed to be in California).

Posted by: Bill Otis | May 19, 2009 12:03:19 AM

Thank the vile, criminal lover lawyer. Everyone is dead but this heartless mother effer.

Posted by: Supremacy Claus | May 20, 2009 10:37:49 PM

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