"Duties of Capital Trial Counsel Under the California 'Death Penalty Reform and Savings Act of 2016'"

The title of this post is the title of this timely and interesting new article authored by Robert Sanger now available via SSRN.  Here is the abstract:

Every trial lawyer who is handling a capital case in California or who has handled a capital case for which the decision of the California Supreme Court is not final on a pending habeas corpus petition, needs to be aware of certain specific duties and strategies required by The Death Penalty Reform and Savings Act of 2016, Proposition 66, enacted by the voters on November 8, 2016.  The Act imposes new duties on capital trial counsel following a judgment of death, will require more prompt discharge of other duties and may even present an opportunity.  While the article focuses on trial counsel, post-conviction counsel will need to be familiar with much of this same information to both effectively work with trial counsel, to seamlessly raise issues and, eventually, to evaluate trial counsel’s conduct.

Trial counsel’s new duties include the duty to proactively assert herself as counsel of record after judgment by objecting and engaging in strategies in the trial court in response to the Act.  Trial counsel will have to advise her client during a difficult period and, when habeas counsel is appointed, work closely with that counsel to investigate and file a petition for a writ of habeas corpus.  The duty to object, the duty to engage in strategies to protect the client and the duty to counsel the client must be commenced in the trial court by trial counsel as soon as there is a judgment of death.  These duties will also extend to cases which may be transferred to the Superior Court by the California Supreme Court.  In addition, immediately upon appointment of habeas counsel and throughout the entire course of the habeas proceedings, counsel will have a more urgent duty than she did pre-Act to be available and responsive to assist habeas counsel.

Objections must be made to the Act on statutory grounds as well as both California and United States Constitutional grounds.  Some of the objections will be systemic and others will be case specific.  There are reasons for the trial court, or, eventually, the higher courts, to find the Act inoperable, unconstitutional or otherwise to stay or delay the process.  The Act is inoperable because it is not self-executing and because it is unfunded.  The Act is unconstitutional because it violates the right to habeas corpus, interferes with the jurisdiction of the courts generally and specifically regarding capital cases, violates the separation of powers and the single subject rule and, if applied retroactively, violates the ex post facto clause.  The Act also contributes to the overall unconstitutionality of the flawed capital punishment system in California.

Under the Act, trial counsel must also take specific action regarding the “offer” of counsel by the trial judge and the “orders” made pursuant to the “offer.”  Strategically, delay in implementation of the “offer” and the orders pursuant thereto may be required to assure appointment of qualified counsel, to avoid the premature commencement of the habeas filing limitation and to allow trial counsel to prepare the files, materials and record necessary for habeas counsel to commence work.  Trial counsel will have a duty to advise the client regarding the client’s rights following the “offer” which will be critical in light of the trial judge’s apparent power to make a finding that the client has waived habeas counsel, potentially forever.

Finally, trial counsel will have to make critical decisions and will have an important role regarding any potential claims of actual innocence or ineligibility of the client for execution.  For instance, trial counsel must decide with the client and habeas counsel what information will or will not be disclosed and what litigation strategy will be employed to resist waiver of privileges that purport to be compelled under the Act.  Finally, if there are grounds for factual innocence or ineligibility for the sentence of death, trial counsel must work with habeas counsel in presenting them early enough to obtain additional time to file the initial petition, if appropriate.