Where Does California's Death Penalty Stand?

MAUREEN CAVANAUGH: Our top story on Midday Edition, the acceptance of San Diego case for review by the US Supreme Court has inadvertently put the spotlight on the death penalty in California. The High Court will review a ruling by the Ninth Circuit Court of Appeals that overturned the conviction of Hector Ayala. He was found guilty of a 1985 triple murder in San Diego and sentenced to death. The court said that the absence of Blacks and Latinos on his jury was possibly race based. And also the larger issue of the legality of California's death penalty is also in litigation. The Attorney General is appealing a ruling that long delays make the capital punishment law unconstitutional. Joining me to discuss where the death penalty stands in California are my guests Alex Simpson and Dan Eaton. Welcome to the program. Alex, first, what are the legal issues that the US Supreme Court wants to review in the Hector Ayala case? ALEX SIMPSON: I think the Hector Ayala case is a death penalty case, but it looks like the focus of the court is more going to be on procedural issues about whether or not a federal court is entitled to look at a state court decision under the antiterrorism and effective death penalty act of 1996. MAUREEN CAVANAUGH: It's a narrow point of law. ALEX SIMPSON: Yes. It's a death penalty case, so anytime the edit states Supreme Court looks at a death penalty case, it becomes national news. I don't think they will be addressing the death penalty as a concept in this seating. MAUREEN CAVANAUGH: The California Supreme Court reviewed the Hector Ayala case before to bring to the Ninth Circuit. The state court refused to overturn the case, because they found if there was an error in the jury make up, it did not harm the case. How did the ninth circuit differ in that opinion? DAN EATON: Ultimately the Ninth Circuit said we will look at this with some level of scrutiny. We are not necessarily going to defer to the California Supreme Court rejection of what is called the Batson challenge, where they allow the prosecutor to explain why he is excluding these seven black and Hispanic jurors without the presence of the defense counsel. The California Supreme Court said this is harmless and the ninth circuit disagreed by a 2 to 1 margin. The Ninth Circuit said they had to reverse this and Mister Ayala had to be freed or retried. MAUREEN CAVANAUGH: Tell us more about this point of law that will be argued before the Supreme Court, the difference that the federal court needs to show a state High Court, the state High Court of California. Why would that be a legal issue in the first place? DAN EATON: Is a huge legal issue, because if a federal court on Haiti is review is seeking the release or review of a state court conviction, has to refer to the state court in this particular case, the company Supreme Court. In this case it is essentially over, because the California Supreme Court rejected the issue that Mister Ayala is raising with this appeal. If the difference is not such that the Ninth Circuit gave it, then maybe Mister Ila has a chance and the Ninth Circuit ruling saying that he had to be retried or released will stand. It will be very interesting to see what the US Supreme Court ultimately does with the latest appeal. MAUREEN CAVANAUGH: Is this really a legal issue across the United States? That if a federal appeals court rules one way or overturns the review of the state court, if they conflict, that there is a tension that needs to be resolved by the US Supreme Court? ALEX SIMPSON: Not necessarily results by the US Supreme Court, there are two things really at play here. The ninth circuit Court of Appeal is sort of the whipping boy of the United States Supreme Court. The Ninth Circuit is seen as a liberal outlier. In issues like this, the Ninth Circuit will often get cases that get heard by the United States up in court because they're making different decisions than the other circuits. The other issue here is that the antiterrorism and effective death penalty act was enacted because legislated believed there were too many federal court decisions overturning state court decisions that sentence people to death. That is really the reason why we have this act, and to the scent that the ninth circuit is trying to circumvent that act, that is something that the Supreme Court will probably want to address. DAN EATON: There were vigorous dissents in this case, including the denial of the original panel to rehear this in a broader panel of the Ninth Circuit. The Supreme Court is going to have a lot to look at with judges who disagreed with the majority in the Ninth Circuit that said that this conviction and the death sentence had to be vacated under these circumstances. MAUREEN CAVANAUGH: Will that central issue that Hector Ayala appealed, the makeup of history, will that play any part in the review by the US Supreme Court? DAN EATON: The specific issue of the review, the real question is whether this was settled law. Whether it was settled law under US Supreme Court precedent, that the trial court should not have excluded the defense attorney from city and when the prosecution explained why the neutral reasons that the prosecution was excluding the seven black or Hispanic jurors. That is the critical question. If the Supreme Court said that should have been in the room, as the majority of the circuit seems to say, then Mister Ayala has a fighting chance. MAUREEN CAVANAUGH: Those arguments are expected in the spring before the US Supreme Court. As I said in the opening, the Ayala case puts the death penalty in the news again. Earlier this year, a federal judge ruled the state death penalty unconstitutional. Remind us why. DAN EATON: Basically it is because of what Alex said earlier. It was viewed as arbitrary. The delays were too long, and the fact is that there have been 900+ people sentenced cents California reinstituted the definitely, and only a small number of those people have actually been executed. Sixty-three have died of natural causes, which is a multiple of the number who have actually been executed. If there were going to be these delays, if the issue of who gets executed is freakish in this dysfunctional system, the system cannot stand under the eighth minute of the Constitution, which prohibits cruel and unusual punishment. He's nothing the death penalty is cruel, he sang the dysfunctional system we have which has a matter of chance whether who gets executed and doesn't, under the enormous delays we have, that makes it unconstitutional. MAUREEN CAVANAUGH: There are now over 700 people on California's death row. Is it accurate that the average death penalty and the average time between conviction and execution, even before we stopped executing prisoners, was about twenty-five years? ALEX SIMPSON: That is right. Even if you look at this case, Hector Ayala's sentence was put up in 1989. We still are debating the issues with regards to the case even now. That is really one of the things that the judge in the summer pointed to as why the difficulty in California was unconstitutional. It is so arbitrary that you would be executed in California. There are no real factors other than the luck of the draw, or the bad luck of the draw. It does not matter if you've killed one person or five people, it does not matter if you did it in concert with another person. Really, the only thing that determines whether or not to get executed is if your number comes up. That is why the judge said this is ridiculous, it is arbitrary that you would get executed and you could not have an arbitrary system for the death penalty. MAUREEN CAVANAUGH: And Dan? DAN EATON: It is interesting, this is the way the constitutional law is interpreted. As early as 2012, the California voters of proposition thirty-four reaffirmed support for the death penalty by a margin of roughly 500,000 votes. I just checked, the California secretary of state website, obviously that is not factor into additional analysis. It would be interesting to see how much of this ruling by the judge actually ends up having. MAUREEN CAVANAUGH: I want to focus as you mentioned, this one federal judge made this ruling in one case, a Los Angeles man sentenced to die 1992. Doesn't have any further effects than this one case? ALEX SIMPSON: It does not at this one point. The case on appeal, the appeal was filed sometime about two months ago. If the Ninth Circuit makes a determination that was proper, that it is arbitrary, in California, that will have some weight. But now, the fact that the judge has made this determination does not mean that we don't have difficulty income for you, or that district attorneys across California, they can still seek the death penalty. MAUREEN CAVANAUGH: Tell us about what you found about this case that has already been cited another cases in California. DAN EATON: I was expecting to find all of these cases citing this case. Instead, I found through the Internet that up and down the state, defense attorneys were seeking to strike the difficulty as a possible penalty in these pending cases. On the grounds that it is arbitrary. Whether this is ultimately going to hold weight, it is not clear. But you should understand this case has had influence from coast-to-coast. Courts as buried as a federal court in Tennessee and the Georgia Supreme Court have both grappled with this decision. They have rejected its reasoning, but they have grappled it. At the least, it has elevated this conversation. MAUREEN CAVANAUGH: As you say, the state of California is appealing the decision to the Ninth Circuit? ALEX SIMPSON: That is correct. MAUREEN CAVANAUGH: But there is no reason to assume legally that if the judge's ruling is upheld that the state has a reason to polish the difficulty, right? Couldn't California just speed up executions? DAN EATON: It could, in fact three former governors actually try to get an initiative on this November's ballot but were not successful in the petitioning process to do that. To speeded up and avoid these issues. That is a possibility, it is going to be very interesting to see what panel actually ends up with this case. I do not see this particular appeal and doing with a ruling of three judges. I have a feeling at the very least it will be heard by a broader panel of the Ninth Circuit, and maybe the US Supreme Court, ultimately. MAUREEN CAVANAUGH: Is it realistic to assume what would come out of a case like this is speeded up executions and, For it? ALEX SIMPSON: I think the issue in regards to the difficulty in that it takes too long is that it always comes back to the question of whether or not we can speed up the process. Is a simple fact that if you speed up the process, there is a greater danger that you're going to have a wrongfully convicted person executed. Nobody wants that scenario. MAUREEN CAVANAUGH: But there are states with much faster executions. Texas and Florida. ALEX SIMPSON: That is absolutely correct. In a case of Todd Willingham in Texas, that was a case where the individual was executed and a number of people said that person was executed as an innocent person. When you try to speed up the process, we know that we have had people wrongfully convicted who were freed with DNA off of the death row. If you speed up the process, chances are you'll have someone fall through the cracks. The process is slow, and to liberate. But it does not necessarily mean that just because it is a death case that we are more shorter or more confident that we have convicted the right person. Just because it is a death case, you can still get a person who is wrongfully convicted. If we speed up the process we may execute an innocent person. MAUREEN CAVANAUGH: Where is the US Supreme Court now on the death penalty? DAN EATON: The Supreme Court has repeatedly said that the difficulty does not violate the eighth amendment cruel and unusual punishment, pointing to the fact that in two different places in the Constitution, the possibility of losing your life is mentioned. The interesting thing, getting to a point that Alex made, the irony of the judges ruling about how long it is taking is that Kamala Harris, who is opposed to the death penalty on principle, says you cannot strike down the death penalty on the grounds that we have these very important protections that courts have put in place to protect from that. That is the ultimate irony and that is the basis she said she was going to appeal to the Ninth Circuit. Getting back to your question, it is possible that they would speeded up a little. But it is hard to see that being the ultimate outcome. MAUREEN CAVANAUGH: My final question is, therefore, if we follow the scenario that Dan has set out, if it goes to the Ninth Circuit and the ninth circuit issues a ruling, and the plaintiff wants to appeal this, is it possible that this case, this ruling by Judge Carney actually might the the basis for a landmark decision about the death penalty in the US Supreme Court? ALEX SIMPSON: It is certainly possible. Anything is possible when it comes to a death penalty case that the Ninth Circuit has passed on. Those factors mean that the United States Supreme Court will be interested in that case, more so than a case that does not involve one of those. DAN EATON: The reason that the death penalty has not been opposed since 2006 has to do with a federal ruling another judge about the lethal injection protocol where the judge said that did not work. This may be a lot of sound and fury, not ultimately signifying the return of the death penalty, no matter how the case comes out. MAUREEN CAVANAUGH: Thank you both very much.