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April 20, 2012

"Murder victim’s family sues to enforce California death penalty"

The title of this post is the headline of this press release from the Criminal Justice Legal Foundation, which is representing the murder victim in what looks like fascinating and potentially ground-breaking litigation. Here are excerpts from the release:

The brother of Terri Winchell, who was brutally murdered in 1981, has filed a lawsuit against the California Department of Corrections and Rehabilitation (CDCR) to end the delay in the execution of his sister’s murderer, Michael Morales.

Bradley Winchell is asking California’s Third District Court of Appeal to order the CDCR to exercise its authority under state law to adopt a one-drug lethal injection method currently used in the states of Ohio, Washington, and Arizona to end the six-year delay of Morales’s sentence.

The Criminal Justice Legal Foundation, which is representing Mr. Winchell, has filed a petition for a writ of mandate in the Sacramento appeals court arguing that the CDCR has been derelict in its duty to enforce the law. Former California Governors George Deukmejian and Pete Wilson have joined the petition as co-counsel for Mr. Winchell.

In its argument, CJLF notes that there are currently 14 murderers on California’s death row whose sentences have been fully reviewed and who are ready for execution, yet the execution of their sentences has been blocked by litigation over lethal injection. While other states have moved forward and resumed enforcement of their capital punishment laws, California remains mired in litigation.

“This delay and denial of justice is entirely unnecessary,” said the Foundation’s Legal Director Kent Scheidegger. “The California Department of Corrections and Rehabilitation has ample authority to resume executions promptly. The failure of that Department and its Secretary, the Respondents in this action, is an abuse of discretion, an obstruction of the law, and a violation of the constitutional rights of the victims’ families,” he added.

Morales was sentenced to death in 1983 for the rape and murder of 17-year-old Terri Winchell. Between 1983 and 2005, Morales’s conviction and sentence were reviewed and upheld multiple times in both state and federal courts, and the United States Supreme Court twice refused to disturb those holdings.

The scheduled February 2006 execution was stayed by a federal judge considering Morales’s claim that California’s three-drug lethal injection process was unconstitutional. In 2007 a Marin County Superior Court judge, in an unprecedented ruling, announced that Morales’s execution could not proceed until the lethal injection protocol was adopted in compliance with state’s Administrative Procedure Act.

The 30+ page petition in this action is available in full at this link.

April 20, 2012 at 11:27 AM | Permalink

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From the story:
"'At any point in this process, CDCR could have announced a one-drug protocol, encouraged by the federal judge who had been reviewing California’s three-drug protocol, and gone forward with the execution of Morales and several other murderers on death row,' said Scheidegger. 'The purpose of the action we have initiated today is to secure a judgment ordering the state to stop sitting on its hands and do its job,' he added.”

I don't know California law, but normally a mandamus requires a ministerial duty to do a specific act. This quote says that CDCR "could" have announced a one-drug protocol. For mandamus to be the appropriate remedy, wouldn't it be required that the CDCR had a ministerial act to announce a one-drug protocol?

Posted by: C | Apr 20, 2012 12:47:40 PM

i think the man has a point. If state after state is able to resume legal exectuions by going to a 1 dug program. Then doesn't take a rocket scientist to know if your state has been locked down for decades over the same problem. MAKE THE DAMN SWITCH!

Posted by: rodsmith | Apr 20, 2012 1:12:03 PM

While I agree with Kent on the policy issue isn't there a separation of peers issue here. In effect, the compliant is that the executive branch is engaging in nullification. Well, so what? The executive nullifies a lot of things through its inaction. The right answer is to change the executive not to continue to whine about it. The court simply doesn't have the power to force the executive to kill someone they don't want to kill.

Posted by: Daniel | Apr 20, 2012 1:41:52 PM

Well, Daniel, we will see. It will be interesting to see what the CDCR has to say about this. Is the department really going to side with a murderer? And then there's matter of the California Constitution and victims' rights.

And Daniel, your comment about "whin[ing]" is beyond offensive. The whiner, as you call the client, happens to be the brother of a murder victim. I think your word choice was ill-considered.

Posted by: federalist | Apr 20, 2012 2:10:36 PM

In California, there is the Jerry Brown factor.

Would he let an execution go forward?

Also --- why is this legal challenge being commenced in the 3rd DCA? The 3rd DCA is an intermediate level appellate court in California. It is noted in the petition that all levels of the judiciary in California --- trial courts, intermediate level appellate courts, and the Cal. Supreme Court --- have original jurisdiction over writ proceedings. So, why not start in a trial court? Why start in an intermediate level appellate court? Why not the California Supreme Court. And, there are six different intermediate level appellate districts in California. Why pick the 3rd DCA, which is in Sacramento. Why not the 1st DCA, in San Francisco, or the 2nd DCA, in Los Angeles. Could the answer lie in the names of the former governors who are on the cover page of the petition? Is there some politics and forum shopping going on here? How many of the members of the 3rd DCA were appointed by the two former Calif. governors whose names appear on the cover page of the petition?

Just asking.

Posted by: Calif. Capital Defense Counsel | Apr 20, 2012 3:32:06 PM

CCDC
I rarely agree with your posts but that is what I was thinking.

The bottom line is the Governor and the AG don't want to carry any executions out. I stated this when Brown and Harris were elected and several bloggers ridiculed me.

Posted by: DaveP | Apr 20, 2012 3:42:38 PM

Given that federalist says things like "Every single Democrat who voted for this basically urinated on this kid's grave," I'll have to recalibrate what "beyond offensive" means.

Posted by: pourquoi | Apr 20, 2012 3:55:46 PM

CCDC, the brief specifically explains why a trial court was not chosen. And my my aren't we touchy about a plaintiff being master of his claim.

pourquoi--please explain why what I said was offensive . . . .

Posted by: federalist | Apr 20, 2012 4:09:27 PM

I'm curious what "a violation of the constitutional rights of the victims’ families" means. What "constitutional right" does the victim have here in this matter? We have various cases where people have been victims over the years and we are reminded (often by conservatives) that there are limits to what constitutions require as regard to positive governmental action.

If it is a matter of not wanting to carry out "any executions," okay, but good luck proving that in court. After all, Baze suggests one drug protocol are not without possible problems in some form. The fact a federal judge determined a specific three drug protocol is a problem doesn't mean some other is not.

And, as others suggest, both sides might (shocker) be trying to game the system.

Posted by: Joe | Apr 20, 2012 4:19:47 PM

We'll Joe, you could always read the brief to find out what victims' rights means in California.

Posted by: federalist | Apr 20, 2012 4:44:47 PM

Well federalist I know what victims rights meant in the Roman Polanski case, which was absolute nothing. So I don't see why they would have much more relevance here.

Posted by: Daniel | Apr 20, 2012 5:16:16 PM

Daniel, I wasn't aware that the California victims rights laws were at all germane to the extradition of Polanski. Holder dropped that ball.

The brief looks pretty solid to me.

Posted by: federalist | Apr 20, 2012 6:10:32 PM

I think the disagreement between Daniel and federalist is arising over a confusion about what which constitution is being referenced. It seems Daniel is absolutely right that there are no victims' rights arising from the US Constitution (at least that any court to my knowledge has recognized), but the CA Constitution was amended by ballot proposition in 2008 to include certain "rights" for crime victims & their survivors, and that appears what the plaintiffs here are hanging their hats on.

Posted by: defense lawyer | Apr 20, 2012 6:23:28 PM

An advocate's brief is not always the best means to determine what the law is, with apologies to the person who thinks it "pretty solid" looking.

Looking at the brief, and unlike f. apparently, I can't say how "solid" it looks not being very knowledgeable of nuances CA law, it remains unclear to me the reach of the victim rights provisions expressed, and if there is a reasonable counterargument. Also, it is notable that sometimes people ask for opinions on blog boards to avoid reading "30+" page petitions or such, especially when they deal with the nuances of a state law that -- unlike some -- some of us don't know too much about.

Daniel's comment not helpful, perhaps someone else can talk about the issues. I am aware generally that states have "victim rights" provisions of various sorts, have for years, but the reach here remains unclear given everything involved.

Posted by: Joe | Apr 20, 2012 6:51:05 PM

Isn't it interesting how a defense lawyer will put the rights of crime victims in scare quotes . . . .

funny how that works . . . .

Posted by: federalist | Apr 20, 2012 6:51:16 PM

federalist, if your petty comment is meant for me, I did not intend to use "scare quotes" but used quotations to show that I was using a specific class of rights ("victim rights" laws), not using a generic term.

The death penalty and victims really are done little favor by your sneering.

Posted by: Joe | Apr 20, 2012 6:59:10 PM

Nope, wasn't for you Joe--was for the defense attorney commenter.

Posted by: federalist | Apr 20, 2012 7:15:48 PM

@defense lawyer. @federalist

Go back and read the Polanski case. The victim in that case was in fact opposed to the extradition of Polanski to be tried on the crime that happened to her under CA's victim's right statute. The prosecution team opposed her. So she sued in court under CA's victim right statute to force the prosecutor to drop charges. The prosecutor opposed that effort too.

If the victim cannot force the prosecutor to drop charges then whatever right they have is a paper tiger. If a prosecutor can choose which victim he wants to help and which victim he doesn't want to help then it's not a victim's right statute but a prosecutor's rights statute. If the victim's right statute couldn't help Samantha Geimer then it can't help Bradley Winchell either.

Posted by: Daniel | Apr 20, 2012 7:27:44 PM

Ah, gotcha, daniel. The prosecution of a child molester is not the proper subject of the veto of the victim.

Posted by: federalist | Apr 20, 2012 7:35:37 PM

Federalist -

I read the brief. And, I read the claimed justification for not filing it in the trial court. But what is the real reason this brief was filed in the 3rd DCA?

In California, intermediate level appellate courts, like the 3rd DCA, have nothing to do with capital cases. Unlike all other appeals in California, capital appeals go directly from the trial court to the California Supreme Court. So, why is this capital case litigation being initiated in a court that has nothing to do with capital litigation?

And, why the 3rd DCA in Sacramento, rather than the 1st DCA in San Francisco, or the 2nd DCA in L.A., or the 4th DCA in San Diego? Former Governors Deukmejian and Wilson are both listed on the cover page of the brief. Deukmejian resides in Long Beach. Wilson resides in San Diego.

So, once again, why was this brief filed in the 3rd DCA?

Posted by: Calif. Capital Defense Counsel | Apr 20, 2012 8:31:58 PM

I don't know CCDC. Usually, plaintiffs decide the forum, and they usually go where they'd get what they think is the best forum for their claim.

I don't really see how the relative lack of experience in the Appeal Court is all that relevant. This case isn't about criminal law anyway.

Posted by: federalist | Apr 20, 2012 8:41:22 PM

Is the CDCR the right party? IOW, does the CDCR have the power and authority to ignore a court ruling and execute anyway? In different other words, isn't there a separation of powers issue here?

But the bottom line appears to be a call for the executive branch to ignore California law under the APA. IOW, an unlawful execution.

Is that what the victim party wants?

Posted by: George | Apr 20, 2012 10:11:09 PM

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Posted by: guanjian | Apr 20, 2012 11:12:40 PM

I would have expected the court circuit to have been chosen for reasons of jurisdiction. It would not surprise me at all if the court surrounding Sacramento has some special jurisdictional relationship to California state agencies. Just like many suits against federal agencies need to be heard in the District of Colombia circuit, regardless of where the disputed action is actually occurring.

Posted by: Soronel Haetir | Apr 21, 2012 8:43:56 AM

Duly noted and mea culpa. The gratuitous commentary criticism holds though.

Posted by: Joe | Apr 21, 2012 2:34:51 PM

Kent, are you concerned that if you do manage to actually get an execution date that it will force Governor Brown into showing his true colors? That is, do you fear that getting an execution date may end up backfiring since he'll be forced into making a clemency decision and may just end up commuting the sentences of everyone on death row?

Posted by: alpino | Apr 22, 2012 12:54:09 AM

alpino, I believe that the gov's ability to grant clemency is limited

Posted by: federalist | Apr 22, 2012 8:32:20 AM

The colors are so gorgeous Sandy! I am sure your quilt will be perfectly lovely! Wishing you a wonderful week! Angie xo

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