BRIGGS v. BROWN

Amicus Curiae Brief of Habeas Corpus Resource Center

Cal.March 30, 2017

IN THE SUPREME COURTOFTHE STATE OF CALIFORNIA SUPREME COURT RON BRIGGSand JOHN VAN DE KAMP, FILED Petitioners, MAR 3 0 2017 v. Case No. 5238309 Jorge Navarrete Clerk JERRY BROWN,GovernorofCalifornia,et al., Deputy Respondents. BRIEF OF AMICUS CURIAE HABEAS CORPUS RESOURCE CENTER IN SUPPORT OF PETITIONERS RON BRIGGS AND JOHN VAN DE KAMP Michael J. Hersek (Bar No. 142065) HABEAS CORPUS RESOURCE CENTER 303 Second Street, Suite 400 South San Francisco, California 94107 Telephone: (415) 348-3800 Facsimile: (415) 348-3873 E-mail: docketing@hcrc.ca.gov Attorney for Amicus Curiae Habeas Corpus Resource Center a IN THE SUPREME COURT OF THE STATE OF CALIFORNIA RON BRIGGSand JOHN VAN DE KAMP, Petitioners, V. Case No. 8238309 JERRY BROWN,Governorof California,et al., Respondents. BRIEF OFAMICUS CURIAE HABEAS CORPUS RESOURCE CENTER IN SUPPORT OF PETITIONERS RON BRIGGS AND JOHN VAN DE KAMP Michael J. Hersek (Bar No. 142065) HABEAS CORPUS RESOURCE CENTER 303 Second Street, Suite 400 South San Francisco, California 94107 Telephone: (415) 348-3800 Facsimile: (415) 348-3873 E-mail: docketing@hcere.ca.gov Attorney for Amicus Curiae Habeas Corpus Resource Center TABLE OF CONTENTS I. Application for Permission to File Brief ofAmicus Curiae Il. Identification and Interest ofAMICUS ........cccccccceccscscesecescscecestesesceasesesees i Table ofAUthorities .........ccccccccccccccceseceneccecscetsecesceccccecensecanavsaressssuvesceeaeseseuans Vv TH. Introduction......cccccccccccceeccseececccceeecceeeveesessesssececcesececeeeeeeesueeusanaeeeessenanes 1 IV. Proposition 66 Is Incompatible With the Fair and Effective Adjudication of Capital Habeas Corpus Claims .......0..0.c cs 3 A. The Timeline for Filing and Resolving Initial Capital Habeas CorpusPetitions Will Deprive Condemned Inmates and Their Counsel of the Ability to Effectively Investigate and Raise Potentially Meritorious Habeas Corpus Claims. .........3 B. The Bar on Successive Petitions Will Undermine Condemned Inmates’ Constitutional Rights. ...........ceee 15 C. Proposition 66 Violates the Equal Protection Rights of Capital Petitioners...eeeeseeecerseseeseneceesnerersereeneeseeeeiens 20 D. Proposition 66 Cannot Be Rescued Through Minor Procedural Adjustments or Creative Judicial Interpretation....... 28 V. CONCI]USION .....ccccccecccecccesccccececceesseceauacecencesceenusseccecuaneuesseuaueseseasaaeeeeen 34 Certificate As To Length...cece ecececeseeeeeeeeeeeeeeeseeseissateseseseeeeseeeseersens 37 iv IN THE SUPREME COURTOF THE STATE OF CALIFORNIA RON BRIGGS and JOHN VAN DE KAMP, Petitioners, Vv. Case No. 8238309 JERRY BROWN,Governor of California,et al., Respondents. APPLICATION FOR PERMISSIONTO FILE BRIEF OFAMICUS CURIAE HABEAS CORPUS RESOURCE CENTER AND BRIEF OFAMICUS CURIAE HABEAS CORPUS RESOURCE CENTER IN SUPPORT OF PETITIONERS RON BRIGGS AND JOHN VAN DE KAMP Michael J. Hersek (Bar No. 142065) HABEAS CORPUS RESOURCE CENTER 303 SecondStreet, Suite 400 South San Francisco, California 94107 Telephone: (415) 348-3800 Facsimile: (415) 348-3873 E-mail: docketing@hcere.ca.gov Attorney for Amicus Curiae Habeas Corpus Resource Center IN THE SUPREME COURTOFTHE STATE OF CALIFORNIA RON BRIGGSand JOHN VAN DE KAMP, Petitioners, v. Case No. S238309 JERRY BROWN,Governorof California,et al., Respondents. APPLICATION FOR PERMISSION TO FILE BRIEF OF AMICUS CURIAE HABEAS CORPUS RESOURCE CENTER TO: THE HONORABLEJUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA Pursuant to California Rules of Court, rule 8.487(e), the Habeas Corpus Resource Center (HCRC), respectfully requests leave of this Court to file a Brief ofAmicus Curiae in Support of Petitioners Ron Briggs and John Van de Kamp. I. IDENTIFICATION AND INTEREST OF AMICUS The Habeas Corpus Resource Center (HCRC) wascreated in 1998 by the California State Legislature to address the lack of counsel who were qualified and willing to represent condemned inmates in postconviction litigation. Senate Bill 513 (Ch. 869, 1998 Stats.). To that end, HCRC is charged with providing timely, high-quality, direct representation to indigent inmates on California’s death row in state and federal habeas corpus and clemency proceedings. In addition, HCRC is responsible for serving as a resource to private counsel who accept appointments in capital cases. i Since opening its doors in 1999, HCRC has accepted appointments to represent 96 men and women on California’s death row. HCRChasfiled 66 state habeas petitions, 28 amended state habeas petitions, and 78 replies to informal responses. Orders to show cause are pending in 7 cases, and 2 clients’ cases await initiation of clemency proceedings. HCRC currently represents 77 clients and continues to accept appointments from the California Supreme Court and the federal courts. Through its direct representation andits role as a resource center to the California capital defense bar, HCRC has becomea repository of experience and expertise on capital postconviction litigation in California. If it takes effect, Proposition 66 will directly affect HCRC’s clients, as it will all condemned individuals in the state. Moreover, the Proposition’s structural changestake clear aim at HCRC’s ability to fulfill the core mission for which it was established: to provide high-quality representation to the many indigent men and women on death row whom the private bar is unable and unwilling to represent. Indeed, the Proposition would leave few aspects of HCRC’s practice unaltered. Amicus is interested in ensuring that state habeas corpus proceedings remain a meaningful avenue for condemned individuals to vindicate their rights. Dated: March 30, 2017 Respectfully submitted, HABEAS CORPUS RESOU CENTER il TABLE OF AUTHORITIES Cases Inre Bacigalupo, 55 Cal. 4th 312 (2012) ...ccceesceeescsesceesneseseeeeesecenssseceesseeenseesees 11,17 Barnett v. Super. Ct., 50 Cal. 4th 890 (2010) o.oo. eeececseeeeeeeeceeseesseseseesoesesecesseesesesseecsenseseaens 9 Bad. ofTr. of Univ. ofAla. v. Garrett, 531 US. 356 (2001)... eeeccceteeecteteesseeseeseseeesscneeeesseeeseseeseesssessnecsenecsaeas 22 Bennett v. Angelone, 92 F.3d 1336 (4th Cir. 1996) oo... eeeseseeseesctesserseeseseneseeesseensneeessensens 27 In re Birdwell, 50 Cal. App. 4th 926 (1997) woeceeeeseescseesseeneesessseseessneeneesenseesnens 19 Bloom v. Calderon, 132 F.3d 1267 (9th Cir. 1997) oo.eeeceeceseserseseesesseseesesneseeeseecseeeenes 7 Brady v. Maryland, 373 USS. 83 (1963) ..ccececccsceseseeececeteeeeereneneseaeeseesesecsuesessessnessneseteesneenees 17 Buck v. Davis, 137 S. Ct. 759 (2017) .cececcecsecccesereeeceeesneeeceaeesesserecsseeeesseseeenssaseeneteeenees 19 California School Boards Ass’n v. State, 171 Cal. App. 4th 1183 (2009) ooocceessseesecseseteesesseeesseeneeeeeees 35 Coleman v. Thompson, 501 U.S. 722 (1991) ...cecceecesseeseeeeeeseeeseeseesessesessssecssesesssneseseessnecseeenenee ik Cullen v. Pinholster, 563 U.S. 170 (2011).ccccceeeeeneeseeeenecteeeseseesesseseeesesneeeaeenees 11, 14, 15 Doe v. Ayers, 782 F.3d 425 (9th Cir. 2015) cecesesecesessssesenecseeseseneeeeeesseseseesseees 7 Foster v. Chatman, 136 S. Ct. 1737 (2016) oo. cece ecceeccceeeeeseeetceeesnecetsseeesseneesseeesseesenesseaeeaees 18 Gardner v. Florida, 430 U.S. 349 (1977). ccccccccsccssceccececeeeeceeeeeseseaceeeseeeesessesesseeceessessnecsseecaes 17 Giglio v. United States, AOS US. 150 (1972) ...cececeecssenceesenerscetessnseeessucseessssseneesssesseenenesseeeeseegens 17 Hamilton v. Ayers, 583 F.3d 1100 (9th Cir. 2009) ooeeecccseeeeseeseeeeneeeeeeeeeceneeeeseeeeees 9 Inre Hardy, Al Cal. 4th 977 (2007)......eccecccceccesceeseseeeeseeeseesseneueseeseneseeseeeesseseeeeeneey 19 In re Harris, 5 Cal. 4th 813 (1993) oo. cccccecsesecseeceneeresseeseesseresssssensscseesesseesesees 16, 19 Heller v. Doe, 509 ULS. 312 (1993)... cceeccesseeseeeeenecessecsseesseeseesesseeseseesssenesseeessenseneeesees 20 Holland v. Florida, 560 U.S. 631 (2010)...ccc ceeseceseceeeeeseetseseeseeseseseeesesseseaeeeesecessesseneeneenes 13 In re Huffman, 42 Cal. 3d 552 (1986) .o..cccccscscsecseeeseccensnessseseeeseeesecsensesesseesneeessasseeeeneees 19 In re Jones, 13 Cal. 4th 552 (1996) 0... eecseeceseseecnecseecesesesseersssaseessesseseeseeesagesenes 19 Jones v. Chappell, 31 F. Supp. 3d 1050 (C.D. Cal. 2014) oo. ceceesenensteteteeeeeeteesees 14, 25 Khodayari v. Mashburn, 200 Cal. App. 4th 1184 (2011)eeccceeeseecsesesesneneeseseesseeteeneenenees 8 Lankford v. Idaho, 500 U.S. 110 (1991)... cece cece seeeeneeeseseecesseeeecnseseensnsessseneesessesenseneeseenee 16 Maples v. Thomas, 565 U.S. 266 (2012)... cececcseseneesseeesessesseesseessesesssceenesssstassecseesesnenees 12 Martinez v. Ryan, 566 U.S. 1 (2012)... cece cece ceecceeeeseeereaeeeeeseeseceeesseenenseeeecneesseseenecseenseenees 5 Miller-El v. Cockrell, 537 U.S. 322 (2003)... .ecceccccscesseeeseessceeceesseseeeeseessecseeaeeeeseeeesseresesaeeneeees 18 Minnesota v. Clover LeafCreamery Co., 449 U.S. 456 (L981) .eeeeecseeeseeeereeseeeentesteenestseeesseeenssseaseeseesnaesesnas 23 vi Montgomery v. Louisiana, 136 S. Ct. 718 (2016)oeee ceeseseeeeseeeeceeseseeesseeeessesesecseneceeeseeeseseeseees 20 In re Morgan, 50 Cal. 4th 932 (2010) oceeeceeeseceesseeeesesseessesssesesssestersseeeeeseenes 25 Morris vy. Carey, No. CV 06-00354-GEB-JFM (E.D. Cal. Dec. 14, 2007)...eee 18 Newland v. Bd. ofGovernors, 19 Cal. 3d 705 (1977) ...ccccecccssessesceseseccesceecseceeseenecsesseteceerseseesessnaees 20, 23 Parr v. Mun. Ct., 3 Cal. 3d 861 (1971) woecece ceeeseeaceeeceeeteeeseeescsoessesesneeeerenesssesesaees 21 People v. Alvarez, 14 Cal. 4th 155 (1996) oo. cececeeeeceeeeeeeeteeecneeeeerarsessesesesessossesenensesaeene 5 People v. Barrett, 54 Cal. 4th 1081 (2012) oo...ccc eccesceceseceeceeeesceeeseeeseeseeseseueesseeecnesenses 23 People v. Brown, 54 Cal. 4th 314 (2012)eeeeseneccneceeeseceeecessessssesssssenesssesseeseseeeseees 22 People v. Howard, 1 Cal. 4th 1132 (1992) occecceeeeeseeeeneceeseceeeceeseseesesestseeecsassenseserseeness 5 People v. Jennings, 50 Cal. 4th 616 (2010) 0... ee eceeesesesceeeseeseseesseseseseesesessnseseseeessnsarenseses 21 People v. Manriquez, 37 Cal. 4th 547 (2005) occ eeesesseseeeecceeenseerseeecessaesessensnessesseecerseeeesnees 21 People v. Putney, 1 Cal. App. 5th 1058 (2016)cececeeeeccseeesessesssesesseseteesseeenenenees 8 People v. Sanchez, 12 Cal. 4th 1 (1995) oo.eccccsccseceeseeceeeseeeeeseseeeessaseeeesaseeesessesseesseseenese 8 People v. Sanchez, 245 Cal. App. 4th 1409 (2016)occcee teeeeteceneneseeeseeetsenenecsees 19 People v. Seumanu, 61 Cal. 4th 1293 (2015) occeeeeseesecseeesesesersseesssesesssessssesesseeseseesseneees 34 vil People v. Virgil, 51 Cal. 4th 1210 (2011) weececseceseseteeseseeeseeecnecseeeserscsesessessssessenes 21 People v. Williams, 56 Cal. 4th 630 (2013) oo. cceceeceescecesececeeeseeceseeesseescesaesaesetstarsteassaesasene 18 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)oo.eseeeeeeeseeeresensenanes 21, 23 Powell v. Super. Ct., 232 Cal. App. 3d 785 (1991) ooo.eeeeeseeeeseneeseeeecsseeseseersssssesseeseeseens 31 Inre Richards, 63 Cal. 4th 291 (2016) oo.eeecseeeneeseeteeeeeeteceseseecsseeseeseaeeessseeesentenel 8,19 Romerv. Evans, 517 U.S. 620 (1996)... cccccccseneeseeseeceseeneesseeeseecesseereeesaeecesssesseessaeesaes 20 Rompilla v. Beard, 545 U.S. 374 (2005)... eeeeeseseeececeseesessesesseseesacseeseneceesnessesecseassnsesecseseeaters 3 Royster Guano Co.v. Virginia, 253 U.S. 412 (1920)... ceceecccesccseececesececeeeeceseeveceeeseseeseeseaseseeeersesessessaees 20 In re Sanders, 21 Cal. 4th 697 (1999) oo... ceecceeecceseceseeceseeeesneceseeeseeneeeseess 3, 12, 13, 16 Sears v. Upton, 561 U.S. 945 (2010)... eeeecesccceecenecnseeseeeeneeeseecesesevsaeesseeeeseeseraeeeesereeees 8 Inre Steele, 32 Cal. 4th 682 (2004) ...ccccccccccsessessecssssesenseseseeseeeseseeeraeeetscseneveceeeeeeaeees 9 Strickland v. Washington, 466 U.S. 668 (1984)...ee ceeececeeecneeesessescesscesesseseesseeseseeeenececsueuenaes 4,17 Sturm v. Super. Ct, No. C82847, 2007 WL 416660 (Cal. Ct. App. Feb. 7, 2007)... ceccesecseeseersenseseseeseeeeteeceeseseseseveneeseeseees 9 Trevino v. Thaler, 133 S. Ct. 1911 (2013)... cece eeccccsecsecseesceseeseeerseseceeeneeenecaesenseeaeeaeeneeats 5 Walker v. Martin, 562 U.S. 307 (2011) occ cccccccccssecesceseeeeseeeeeeeceeeceeenaesesaeeceaaesteessateass 15, 24 Vili Warden v. State Bar, 21 Cal. 4th 628 (1999) oo... eeeeeeseeseesssesesescsesssessessetsessseesseeseeesseseneesee 23 Wiggins v. Smith, 539 US. 510 (2003)...cece scesesseeseceeeseseseeserenseseeeeseneseaeenesorenseeseeeees 4,6 Williams v. Taylor, 529 US. 362 (2000)... ceeceeeccsceseesscescscesescesseessesscessessesenseseeseneeeesees 4,7 Young v. Gipson, 163 F. Supp. 3d 647 (N.D. Cal. 2015) ..cccceccceseseseseesseenseeetereeereneteteteeees 19 Constitutional Provisions Cal. Const. Art. XTDD0... cecceesesseecenscesecssesessessssaeeseseessenseneseeseensenesseenes 35 Statutes 42 U.S.C. § 3732 cccceccscccscsceseeceneresseeesereseeescsenseseassesecseesesessessecseeseenecseasisaeens 31 Cal. Civ. Proc. Code § 237 w.ccceceeccscceesecesseesssssseseeseeesesseeseeseesneeseesseeeesenness 10 Cal. Evid. Code § 452.0... ccccccsceesseseesecesceseseseessesensseessesessseeseessenerentens 8, 31 Cal. Gov’t Code § 68502.5 oo. iieceecessscssesceesseseseseseseeseeenesseesneeseeeetesnengees 35 Cal. Gov’t Code § 68660.5 00... ccc ccceescsscssessessessesesseeeseeseesseeenseeensesseseseeenes 27 Cal. Gov’t Code § 68662... cceccesecesecescsscsesesseesecsasseensesseeseenseneeessesseecseses 5 Cal. Gov’t Code § 68665 2... ecccecesceesceesesssessseesseeeeseneeseceneseasennsesteeseneenes 28 Cal. Penal Code § 190.6 oeecsesceseecsssessessssesssseaseesseesaesseseneeseenaseens 30, 33 Cal. Penal Code § 1054.9 oie ecesccesecesseseescessseseeseesesessaeeseeeneeenensesenens 9, 10 Cal. Penal Code § 1235 ...ceecccsscsseceesecesseeeecsssesenseeesseseessesensesessenenensseenees 33 Cal. Penal Code § 1509 ....cciciceccssescecesseseseeeeseseenesesseeseeneeeneereeeetieypassim Rules of Court Cal. Rules of Court, Rule 8.487 ......ccccccccccecceceeeeteceeeeensceseeeeeaeesseneeseseeeeeee 1 Cal. Rules of Court, Rule 8.500... ceeceeeseceereetereeeeeneeeeSeeeeecenseatecseesseeees 34 1x Other Authorities 28 CFR. § 26.2] ceeeccccssccsceeeceneeseceeceeeseseseseeasessscsseessesssseeeseeeseasseeeeseeeess 28 Arthur L. Alarcon & Paula Mitchell, Executing the Will ofthe Voters?: A Roadmap to Mend or Endthe California Legislature’s Multi-Billion-Dollar Death Penalty Debacle, 44 Loy. L.A. L. Rev. S41, S84 (2011) occcecectenereeees 25 Assembly Standing Committee on Public Safety, May 17, 2016 (statement of Joseph Schlesinger, Executive Director of California Appellate Project)...eeeeesseeessescsssereeceeeseeeesseeeees 26 National Registry of Exonerations, Race and Wrongful Convictions in the United States, 7 (Mar. 7, 2017)......:.::ccceeessreeteeeeee 16 Tracy L. Snell, Bureau of Justice Statistics, Bulletin: Capital Punishment 1997 at 1 (Jan. 14, 1999)ooceceeee eeeee eee enseenereees 31 Tracy L. Snell, Bureau of Justice Statistics, Bulletin: Capital Punishment 2005 at 5 (Jan. 30, 2007)......cccscssseesseseseeseeeresessesessesnnssees 31 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA RON BRIGGSand JOHN VAN DE KAMP, Petitioners, Vv. Case No. 8238309 JERRY BROWN,GovernorofCalifornia, et al., Respondents. BRIEF OFAMICUS CURIAE HABEAS CORPUS RESOURCE CENTER IN SUPPORT OF PETITIONERS RON BRIGGS AND JOHN VAN DE KAMP TO: THE HONORABLE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA Pursuant to California Rules ofCourt, rule 8.487(e), the Habeas Corpus Resource Center hereby offers the following amicus curiae brief in support of petitioners Ron Briggs and John Van de Kamp. HW. INTRODUCTION A clear-eyed appraisal of Proposition 66 yields only one conclusion:it cannot work. That is, compliance with the timelines it proposes cannot be approachedwithout both a tremendousinfusion ofmoney (nowhere provided for in the Proposition itself) and a profound intrusion into the ability of condemned inmates andtheir counselto raise potentially meritorious habeas claims and of the courts to fairly adjudicate them. This measure promises disorder within the judiciary, confusion and delay for litigants in non-capital cases, the erosion of the judiciary’s ability to enforce constitutional guarantees for criminal defendants, and— most disturbing of all— a dangerousrestriction of access to the courts for condemned inmates. Yet paying even that steep price will not purchase the efficiencies proponents purportedly seek, because the Proposition does little to address the underlying causes of delay, namely, the lack of qualified and willing counsel, the lack ofjudicial resources, and the delays in federal court. If anything, Proposition 66 threatens to worsen rather than ameliorate the current problems. Instead offinding ways to attract, equip, and retain qualified counsel, this measure will drive them away. Instead of supporting the judiciary so it can allot capital cases the attention they require, it will further burden the already taxed court system and short-circuit meaningful appellate review. And instead ofensuring that potentially meritorious issues are investigated and presented to the state courts in thefirst instance, it will shift responsibility for enforcing core constitutional rights to the federal courts, increasing the time they must spend reviewing capital cases. There is some obvious appeal to the proponents’ belief that simply ordering various actors to work faster will speed up the entire process, but this facile approach disregards the complex balance of interests and constitutional concerns that informs the current system. The stakes in these cases could not be higher. This is not the place for experimenting with untested and illogical schemes. The sections that follow build on the information offered in HCRC’s amicusletter regarding the specific obligations of habeas corpus counsel, the risks to our clients and to the legal system as a whole if these obligations go unmet, and the ways in which Proposition 66 will directly interfere with our ability to effectively represent death-sentenced inmates, thus creating constitutional concerns. We hopethis information will assist the Court in understandingthis initiative’s tangible consequences as they would unfoldin the lives of our clients. III. PROPOSITION 66 IS INCOMPATIBLE WITH THE FAIR AND EFFECTIVE ADJUDICATION OF CAPITAL HABEAS CORPUS CLAIMS A. The Timeline for Filing and Resolving Initial Capital Habeas Corpus Petitions Will Deprive Condemned Inmates and Their Counsel of the Ability to Effectively Investigate and Raise Potentially Meritorious Habeas Corpus Claims. Aggressively limiting the time in which to prepare andfile an initial habeas corpuspetition will do little or nothing to speed these cases through the system, and may actually slow them down. These limitations will, however, have profoundly negative consequencesfor the men and women on death row for whom state habeas review represents a crucial opportunity to seek relief for rights abridged at trial or on direct appeal. To understand the implicationsofthe new timelinesfor the clients HCRCserves,it is necessary to describe in somedetail the unique challenges of competently representing a condemnedinmatein state habeas proceedings. Under this Court’s policies and governing legal precedent, capital habeas attorneys must “expeditiously investigate potentially meritorious basesforfiling a petition,” Supreme Court Policies Regarding Cases Arising from Judgments of Death, Policy 3 at 2-2, and, after a “diligent and thorough investigation,” prepare andfile “a habeas corpuspetition presenting all potentially meritorious claims,” In re Sanders, 21 Cal. 4th 697, 708, 727 (1999). These obligations require habeas corpus counsel to fully understand and carefully evaluate what was and wasnot donebytrial counsel at both the guilt and penalty phases ofthe capital trial. At a minimum,trial counsel has a duty to investigate “the circumstancesofthe case andto exploreall avenues leading to facts relevantto the merits of the case and the penalty in the event of conviction.” Rompilla v. Beard, 545 U.S. 374, 387 (2005). These duties S i e n a s t e a d ea t g e “comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.” Wiggins v. Smith, 539 U.S. 510, 524 (2003); see also Williams v. Taylor, 529 U.S. 362, 396 (2000) (describing counsel’s “obligation to conduct a thorough investigation of the defendant’s background”); Strickland v. Washington, 466 U.S. 668, 688 (1984) (same). Thus, when it appearsthat trial counsel has failed to meet any part of the constitutional duty to investigate, discover, and present all reasonably available defense evidence, those same obligations fall to habeas corpus counsel. Myriad discrete tasks are required to carry out the complex objectives that the law requires capital habeas counselto fulfill. The mandate to identify and set forth all potentially meritorious claims requires a substantial investment oftime at the outset to determine what happened duringtheinitial investigation, at trial, and on appeal; a wide-ranging investigation likely encompassing multiple disparate issues; and finally the writing and submission of a petition covering all of these issues, accompanied by supporting lay witness and expert declarations andother relevant documents. There are no shortcuts to producing competentfilings. The thoroughness of the habeas investigation facilitates the Court’s own review and is not replicated by any other party in the system. Accordingly, the following section sets forth a brief review of certain tasks that are central to habeas corpuslitigation, as well as why they matter and how they are interconnected. Despite the demands outlined below, Proposition 66 seeks to reduce the amount of time habeascounselhasto file a petition to one year from the time of appointment. See Cal. Penal Code § 1509(c), (g);! Gov’t Code § 68662. This one-yeartimeline is inadequate to discharge counsel’s obligations. See generally Trevino v. Thaler, 133 S. Ct. 1911 (2013); Martinez v. Ryan, 566 U.S. 1 (2012). Attempting to adhere to it will ill serve ourclients, the courts, and the interests ofjustice. Corrected record and trial counsel’s file. Because a complete and accurate record is essential to determine the constitutional adequacy of a condemnedclient’s trial and sentence, see, e.g., People v. Alvarez, 14 Cal. Ath 155, 196 n.8 (1996); People v. Howard, 1 Cal. 4th 1132, 1166 (1992), habeas counsel must be sure she has a fully corrected copy of the certified record on appeal andthe entirety oftrial counsel’s file, as well as the files of any investigators who worked with the defense team at trial. It is only through a thoroughreviewofthe correctedtrial record and the defense team’s files that habeas corpus counsel begins to understand what the case is really about, what the defense team did and did not do at trial, and the scope of work that will be necessary to comply with this Court’s policies. Record correction is prone to delay becauseit requires several parties — appellate counsel, the District Attorney, and the trial court — to collaborate and ultimately agree on any corrections to the record. Andthe large volume oftrial counsel’s file in a typical capital case meansthat significant logistical planningis often neededto coordinate the location, inspection, inventory, and shipping of many boxes to habeas counsel. If there were two defense attorneys or multiple investigators who worked onthecaseattrial, locating and retrieving multiple sets of files can be even more laborious. A detailed review of both the record and trial counsel’s file is a prerequisite to carrying out a competentinvestigation that will develop any potentially meritorious claims. In particular, ofcourse, a review oftrial counsel’s entire file is crucial 1 Citations are to the statutes as amended by Proposition 66 unless otherwise indicated. to raising any claimsofineffective assistance ofcounsel. Delays in obtaining these foundational documents necessarily mean delays in all ofthe work that dependson careful review ofthese documents. Client andfamily records. \n addition to reviewing the corrected record andtrial counsel’s file, counsel must request and review records that were not obtainedby trial counsel. These typically include records from schools, doctors and hospitals, former employers, and various federal and state agencies.” Some requests are made within California, but often counsel must reach far beyond the State’s borders to seek records from across the country, or even from other countries. Even the most urgently worded requests are rarely enough to speed up the wheels of bureaucracy, and counsel may have no choice but to wait months to receive relevant records. Such records, however, are vital because they contain first-hand evidence of important events in the life of a client and his or her family — the foundation of the penalty-phase investigation— and they show the ineffectiveness oftrial counsel in failing to uncover them. See Wiggins, 539 U.S. at 523-24 (“Counsel’s decision not to expand their investigation beyond the PSI and the DSSrecords fell short ofthe professional standards”). These records can radically reshape the complexionof a case, as they did in Williamsv. Taylor, where the high court quoted from horrific passages of the petitioner’s juvenile records: “The home was a complete wreck .... There were several places on the floor where someonehad had a bowel movement. Urine was standing in several places in the bedrooms. There were dirty dishes scattered over the kitchen, and it was 2 This Judicial Council’s contract with the California Appellate Project to collect and preserve records relevant to the cases of unrepresented condemned inmates pending appointment of habeas counsel reflects the Court’s understanding of the importance of these sometimes ephemeral documents, whichareall too easily lost or destroyed if not obtainedearly on. impossible to step any place on the kitchen floor where there wasno trash. The children were all dirty and none ofthem had on under-pants. [Petitioner’s parents] Noah and Lula were so intoxicated, they could not find any clothes for the children, nor weretheyable to put the clothes on them... . The children had to be put in Winslow Hospital, as four of them, by that time, were definitely underthe influence ofwhiskey.” 529 U.S.at 395 n.19 (2000) (quoting juvenile records); see also Doe v. Ayers, 782 F.3d 425, 436 (9th Cir. 2015) (holding that trial counsel’s failure to obtain defendant’s prison records constituted deficient performance and contributed to counsel’s ineffectiveness at the penalty phase); Bloom vy. Calderon, 132 F.3d 1267, 1274 (9th Cir. 1997) (discussing evidence of mental illness documented in psychiatric and jail reports that trial counsel deficiently failed to obtain). Rushing the record collection process, as Proposition 66 aims to do with its deadlines, risks leaving records such as these uncovered and repeating the same harmsto the client that flowed from trial counsel’s failure to obtain them initially. Lay witness declarations. Once the relevant materials have been reviewed and habeas corpus counsel has identified potentially meritorious issues, the postconviction team can begin the process of contacting, establishing rapport with, and interviewing witnesses. A typical capital case includes scores ofwitnessesto be interviewed, many ofwhomlive across the country and, in some cases, abroad. Multiple interviews (necessitating rounds of planning and logistical coordination) may be needed before an investigator can ask a witness about deeply personal events relating to her family or her past. See Doe, 782 F.3d at 437 (noting that “most people” do not “volunteer deeply painful, shameful information” in the first instance). Establishing relationships that support the disclosure of these stories is an integral part of habeas representation. In the case of witnesses who do not speak English, the process may be further slowed by the need to have their statementsofficially translated. See Guidelines for Fixed Fee Appointments, on Optional Basis, to Automatic Appeals and Related Habeas Corpus Proceedings in the California Supreme Court, § 1.3 (Guidelines for Fixed Fee Appointments) (listing non-English speaking witnesses as a factor affecting fee categories). Expert consultations and declarations. Retaining and consulting with experts is another crucial part of the process. Habeas counsel works with ballistics experts, DNA experts, crime scene reconstruction experts, and others, to help analyze the evidence presented (or not presented) at the guilt phase. See Guidelines for Fixed Fee Appointments, § 1.3 (listing forensic testing and analysis of evidence as a factor affecting fee categories); In re Richards, 63 Cal. 4th 291, 309 (2016) (relying on expert opinion regarding false evidenceat trial); Return at 11, In re Vicente Benavides Figueroa, No. S111336 (filed on June 12, 2015) (Respondent conceding after presentation of expert opinions and medical evidence developedin state postconviction proceedingsthat “the evidence regarding the sexual assault . .. cannot now be relied upon”).? Counsel also works with mental health and social history experts on mitigation and other penalty-phase claims. See, e.g., Sears v. Upton, 561 U.S. 945, 949-50 (2010)(relying in part on the “well-credentialed expert’s assessment, based on between 12 and 16 hoursofinterviews,testing, and observations [citation] that Sears suffers from substantial cognitive impairment” in remanding for lower court to reassess prejudicial impact of 3 Amicuscuriae requests that the Court take judicial notice of this and other publicly filed court records cited in this Brief. See Cal. Evid. Code § 452(e). Courts commonly take notice of court orders, pleadings, briefs, and other records filed in the courts of this State and of the United States. See People v. Sanchez, 12 Cal. 4th 1, 85 n.10 (1995), overruled on other grounds by People v. Doolin, 45 Cal. 4th 390, 421 n.22 (2009); People v. Putney, 1 Cal. App. 5th 1058, 1063 n.4 (2016); Khodayari v. Mashburn, 200 Cal. App. 4th 1184, 1196 (2011). he gd ie al at trial counsel’s deficient penalty-phase performance) (footnote omitted); see also Hamilton v. Ayers, 583 F.3d 1100, 1117, 1132 (9th Cir. 2009) (failing to retain a mental health expert and to “provide[ ] the expert with the information needed to form an accurate profile” was prejudicially deficient where defense counsel was on notice that defendant suffered from mental health problems;listing cases to that effect). It is not possible to determine which experts to retain, let alone to actually retain them, until counsel has concluded a thorough review of the records discussed above. Other preparatory steps may be required, as well. In guilt-phase matters, counsel often needs a court order to allow experts to review the physical evidence. See Cal. Penal Code § 1054.9(c) (providing that a court may grant a habeaspetitioner access to physical evidence upon the filing ofa qualifying writ or motion). For mental health and socialhistory experts, counsel must provide scores of records and allow the experts sufficient time to review those records and to meet with and conducttesting of clients. Without time for habeas counsel to vet, consult, and collaborate with experts, the courts will be denied the technical analysis that is essential to evaluating both guilt and penalty claims. Discovery. As the investigation proceeds, counsel must also obtain discovery materials, including those that could have been, but were not, obtained by trial counsel. See Cal. Penal Code § 1054.9; Barnett v. Super. Ct., 50 Cal. 4th 890, 898-99 (2010); In re Steele, 32 Cal. 4th 682, 693 (2004). The preferred course is for the parties to resolve all discovery matters informally. Steele, 32 Cal. 4th at 691-92. Often, however, habeas counselis not provided with all requested discovery to which sheis entitled, and must file a discovery motion in superior court, followed in somecases bya petition for writ of mandate. This process can take months, if not years, to complete. See, e.g., Sturm v. Super. Ct., No. C82847, 2007 WL 416660,at *1 (Cal. Ct. App.Feb. 7, 2007) (almost two and a half years passed betweenthefiling of Mr. Sturm’s discovery motion in superior court and the Court of Appeal’s ruling on his petition for writ of mandate); In re Bryant, No. A711739 (Los Angeles Sup. Ct.) (ongoing litigation pending in the superior court on discovery motionfiled on June 15, 2015). Without discovery, habeas counsel may remain unaware of key evidence indicating police or prosecutorial misconduct, among other issues. The process of developing the factual record through discovery is so important to the responsibilities of state habeas counsel that the legislature enacted statuteto facilitate it. Cal. Penal Code § 1054.9. Proposition 66, however,threatens counsel’s ability to obtain this discovery in time to place it before the court. Juror interviews and declarations. Interviewing jurors is anothertime- intensive task that cannot begin until habeas counsel has solidified her understanding of how events unfolded at trial. Facts suggesting juror misconduct may present themselves on the record, in trial counsel’s file, through interviews with other lay witnesses, or during preliminary document collection. To follow up on these facts, postconviction counsel may have to litigate no-contact orders that were put in place decades earlier just to uncover potential misconduct. Juror-related investigation may also become entangled in the web of governing regulations, and thereby delayed. See Cal. Civ. Proc. Code § 237 (outlining the process for petitioning the court for juror information). Interviewing jurors and obtaining declarations is an indispensable step in raising juror misconduct claims. See, e.g., Order to Show Cause, Jn re James Robinson, S044693 (issued on Oct. 1, 2014, regarding several instancesofalleged juror misconduct as described in juror declarations). Initial habeas corpus petition. Finally, habeas counsel must draft and file the habeaspetition itself. This requires marshalling massive amounts of information — thousandsofpagesoftrial transcripts and other records from the time oftrial, all of the records that have been collected in the course of 10 the investigation, dozens of witness declarations, highly technical expert declarations — and usingit to craft a compelling and persuasive petition that fairly presents all meritorious legal claims and placesall relevant facts before the state court. See Cullen v. Pinholster, 563 U.S. 170, 182 (2011); Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). Impediments to counsel’s completion ofthe preceding taskswill affect the quality and thoroughness of the petition. Informalbriefing and evidentiary hearings. Looking further ahead in the process, the Proposition’s truncated timelines erode the opportunity for informal briefing or an evidentiary hearing to fully develop claims. The Proposition allows superior courts only one yearto resolve petitions from the time they are filed, except in cases where an additional year is needed “to resolve a substantial claim of actual innocence.” Cal. Penal Code § 1509(f). Yet far more time is required to file further informal briefing, file formal pleadings,* prepare for and hold an evidentiary hearing, and issue written findings of fact. See, e.g., In re Bacigalupo, 55 Cal. 4th 312 (2012) (Court issued an order to show cause in March 2001 and referee did not file his report until June 2009 after holding multiple hearings and taking copious testimony); Jn re Kenneth Earl Gay, $130263 (Court issued an order to show cause in August 2008 andreferee issued findingsoffact in November 2015); In re José Francisco Guerra, 8134332 (Court issued an order to show cause in January 2012 and the case remains ongoing in Los Angeles Superior Court); In re Ignacio A. Tafoya, 8120020 (Court issued an order to show cause in January 2009 and the case remains ongoing in Orange County Superior Court); Jn re Steve Allen Champion, 8065575 (Court issuedan order to show cause in February 2002 and referee issued findings of fact in March 4 Informal and formal briefing on claims raised in the habeas corpus petition is essential to clarify and define the issues in dispute for the court. 1} 2009). By imposing deadlines that makeit effectively impossible for the superior courts to carry outall the evidentiary proceedings andlegal analysis required for granting relief, Proposition 66 sends a message that the judiciary should view these pleadingsas formalities to be rushed through andnotas a proper focusofthe courts’ reasoned consideration. Client abandonment. Completing the core tasks outlined aboveis challenging enough when habeascounsel do notsimultaneously haveto bear heavy non-capital caseloads and when cases are assigned to competent counsel who work diligently on the claims. Unfortunately, this description does not apply to all appointed counsel. See Sanders, 21 Cal. 4th at 708-09 (describing situations in which counsel can be considered to have abandoned a client); see also Maples v. Thomas, 565 U.S. 266 (2012). In Sanders, this Court established an exception to the bar on untimely petitions where “counsel abandonshis or her client during the postconviction period, failing to conduct a reasonable investigation and file a petition if the facts so warrant.” 21 Cal. 4th at 720. The situation addressed in Sanders is all too common. See, e.g., Docket (Register of Actions): People v. Randall Clark Wall, S044693;° Docket (Register of Actions): People v. John Cunningham, S051342;° Docket (Register of Actions): People v. Demetrius Charles Howard, S196958;7 Shttp://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0& doc_id=1776455&doc_no=S044693 (last visited Feb. 27, 2017) (initial habeas counsel’s appointment vacated almost six years after appointment, with Court referring initial counsel to the State Bar). Shttp://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0& doc_id=1783102&doc_no=S051342 (last visited Feb. 27, 2017) (initial habeas counsel’s appointment vacated more than eight years after appointment, with Court referring initial counsel to the State Bar “in light of [initial counsel’s] apparent abandonmentofhis condemnedclient”). Thttp://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist-0& 12 Docket (Register of Actions): People v. Richard Leon, 8056766.8 Under Proposition 66, an abandonedclient’s petition would be considered untimely one year from the appointment of initial habeas counsel. Even if, as Intervenor suggests, some form of equitable tolling may be available in certain situations, see Preliminary Opposition of Intervenor at 37, the Proposition risks drastically narrowing the rule embraced in Sanders. See Hollandv. Florida, 560 U.S. 631, 649 (2010) (noting that equitable tolling is available only if a litigant can show “he has been pursuing his rights diligently” and that “some extraordinary circumstance stood in his way”) (internal quotation marks omitted).? Proposition 66 thus threatensto curtail the right “to reasonable access to the courts, and to the assistance of counsel” for clients abandoned by counsel. Sanders, 21 Cal. 4th at 719, 723 (“Ifa death row prisoner can show heorsheis otherwise entitled to relief due to an error in his or hertrial, the cause of justice is hardly advanced by the doc_id=1993423&doc_no=S196958 (last visited Feb. 27, 2017) (over seven years passed from initial habeas counsel’s appointmentto the time the Court appointed second substitute counsel). Shttp://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist-0 &doc_id=1788509&doc_no=S056766 (last visited Feb. 27, 2017) (initial habeas counsel’s application to withdraw granted over six years after appointment). 9 Albert Holland was an exceptional petitioner by any measure: “Holland not only wrote his attorney numerous letters seeking crucial information and providing direction; he also repeatedly contacted the state courts, their clerks, and the Florida State Bar Association in an effort to have [his lawyer] Collins — the central impediment to the pursuit of his legal remedy — removed from his case. And, the very day that Holland discovered that his AEDPA clock had expired due to Collins’ failings, Holland prepared his own habeaspetition pro se and promptly filed it with the District Court.” Holland, 560 U.S. at 653. Various mental, emotional, logistical, and material impairments tend to put such organized diligence beyond the reach of most condemnedpetitioners. 13 highest court in the State of California refusing even to consider the claim becausethe prisoner’s former attorney abandoned thecaseat a timestate law required him orher to be conducting a reasonable investigation into issues of potential merit.”). ** # * The factors that make the tasks described above intensely time- consuming — many of which depend on the cooperation of entities and individuals beyond counsel’s control- cannot simply be dispelled by legislative fiat.!° Instead, Proposition 66’s accelerated timelines may force habeas counsel to sacrifice the completion of core tasks, leaving the state postconviction record underdeveloped. See Pinholster, 560 U.S. 170. Short- changing state court review will, in turn, shift procedural problems and delays downstream. See Jones v. Chappell, 3\ F. Supp. 3d 1050, 1066 (C.D. Cal. 2014) (“When [habeas] counsel is appointed by the State, investigation of potential claims is hampered by underfunding, which in turns slows down the federal habeas review process.... Finally, even after filing a petition for federal habeas review, many inmates, often becauseofdeficiencies rooted in the State’s process, must stay their federal cases to exhaust claimsin state court.”), overruled on other grounds by Jonesv. Davis, 806 F.3d 538 (9th Cir. 2015). If condemned inmates are left to proceed into federal court with an under-developed state court record, they will point to deficiencies in California’s postconviction process to explain why federal courts should 10 Moreover, California’s large death row population makesthis state’s postconviction procedures uniquely challenging compared to other states’ postconviction procedures. The sheer number ofdeath-sentenced individuals far exceeds the number of qualified counsel, the certification of the record alone takes years, and by the time state postconviction counsel undertakes the necessary investigation and preparation of the habeaspetition, witnesses have died, files have been lost, and records have been destroyed. 14 consider constitutional claims that were developed substantially in federal proceedings, but were neverfully presented or considered bythe state courts due to Proposition 66’s accelerated timelines. Principles of comity,finality, and federalism are ill-served when state courts are not given a full and fair opportunity to review a claim and correct any constitutional violation in the first instance. Pinholster, 560 U.S.at 185. In sum, slashing the time available to investigate and file an initial habeaspetition will not put a dentin the main drivers ofpostconviction delay, but will limit condemned inmates’ ability to raise meritorious claims before the state courts and likely give rise to additional problems later on, particularly on federal review. B. The Bar on Successive Petitions Will Undermine Condemned Inmates’ Constitutional Rights. The new timelimitation forfiling an initial petition must be considered in conjunction with the new bar on successivepetitions, which would prevent condemnedinmates from raising certain claims — includingthosethatallege constitutional violations — if the supporting evidence is discovered after the initial petition is filed. Cal. Penal Code § 1509(d). This barraises the stakes for the initial investigation andfiling, since that pleading will become the sole opportunity an individual has to raise many categories of core claims in either state or federal court. See Walker v. Martin, 562 U.S. 307, 315-16 (2011) (noting that federal courts cannot review on the merits any claim that is barred by an independent state proceduralrule). Proponents make muchof the exception for those petitioners who can raise a substantial claim of actual innocence, see, e.g., Prelim. Opp’n of Intervenor at 34, but this argument ignores the range of fundamental constitutional rights a habeas petitioneris entitled to vindicate through the use of the Great Writ. See Sanders, 21 Cal. 4th at 703-04 (“Despite the 15 substantive and proceduralprotections afforded those accused ofcommitting crimes, the basic charters governing our society wisely hold open a final possibility for prisoners to prove their convictions were obtained unjustly. [Citations.] A writ of ‘[hJabeas corpus may thus provide an avenueofrelief to those unjustly incarcerated when the normal methodofrelief i.e., direct appeal — is inadequate’.... ”); In re Harris, 5 Cal. 4th 813, n.6 (1993) (“[H]abeas corpus cuts throughall forms and goesto the very tissue of the structure. It comes in from the outside... and although every form may have been preserved opensthe inquiry whether they have been more than an empty shell.”) (internal quotation marks omitted).'' Procedural protections are necessary to ensurethe fairness and accuracyofcriminal proceedings and thus are integral to the proper functioning and legitimacy of the judicial system, but Proposition 66 gives such constitutional violations scant consideration where they are not connected to claims of actual innocence or ineligibility for the death penalty. See Lankford v. Idaho, 500 U.S. 110, 127 (1991) (observing that suspension of procedural protections impairs proper functioning of adversary process, increasing error and possibility of incorrect results); Strickland, 466 U.S. at 686-87 (noting importance of procedural 11 Tntervenoralso ignoresthe fact that in homicidecases, the average time to exoneration nationwide is over a decade. National Registry of Exonerations, Race and Wrongful Convictions in the United States, 7 (Mar. 7, 2017), available at: https://www.law.umich.edu/special/exoneration/ Documents/RaceandWrongfulConvictions.pdf (last visited March 8, 2017). State misconduct- a factor in seventy percent of homicide exonerations over the past thirty years— also extends the average time required to overturn a wrongful conviction by several years. Id. at 6 (“Official misconductin criminal cases is under-reported because,byits very nature, most misconduct is deliberately concealed —- and much if not most remains hidden.”). Accelerating postconviction investigation and appellate review with an eyeto hastening executionsis unlikely to facilitate the careful scrutiny required to identify wrongful convictions. 16 protections to adversarial testing process and just results); Gardner v. Florida, 430 U.S. 349, 358 (1977) (same). Onegroupofpetitioners who would have no remedy underProposition 66 are those who learn of Brady" or Giglio’ material after filing an initial petition, but do not have a claim of actual innocence orineligibility. For example, under Proposition 66, the Court would have to deny successor petitions like the one filed in Bacigalupo without any consideration of the merits. 55 Cal. 4th 312. In that case, evidence was uncoveredafterthe filing of a first petition that the prosecution had wrongfully suppressed witness statements indicating that Miguel Bacigalupo’s participation in the capital offense was prompted by threats from a Colombian drug cartel. Jd. at 334- 35. Finding a reasonable probability that this evidence would haveresulted in a non-capital sentence, this Court granted Mr. Bacigaluporelief from the judgmentof death. /d. at 336. Judicial intervention in cases like this— ie., those that involve constitutional violations, but where a petitioner might not be able to show actual innocence or ineligibility by a preponderance of the evidence — is crucial to enforcement of the prosecution’s ongoing obligation to disclose material, favorable evidence. See Bacigalupo, 55 Cal. 4th at 336 (“the prosecution’s disclosure obligations extend to evidence that is material on either guilt or penalty”). Brady evidence often takes years to uncover — the state, having failed to disclose such evidenceattrial is hardly likely to be more forthcomingafter having secured a conviction and death sentence. See supra note 11. Because of the time-consuming challenges inherent in 12 The petitioner in Brady v. Maryland, 373 U.S. 83 (1963), which concerned the suppression of evidence material only to the penalty phase of his trial, would be unable under Proposition 66 to raise his claim on a successorpetition. 13 Giglio v. United States, 405 U.S. 150 (1972). 17 uncovering Brady violations, Proposition 66 would all but foreclose such claims in the initial petition, and then drastically limit them in successor filings. Similar concernsarise in cases involving Batson violations. In Foster v. Chatman, 136 S. Ct. 1737, 1743-46 (2016), for example, the Supreme Court reversed a death judgment based on a Batson violation that did not cometolight until years after the conviction and death sentence. In cases in which the prosecutor’s jury selection notes are essential to resolution of the claim, the truncated timelines imposed by Proposition 66critically reduce the likelihood of their timely discovery and presentation in an initial state petition. See Order on Pet’rs. Mot. for Disc. at 1, Morris v. Carey, No. CV 06-00354-GEB-JFM (E.D. Cal. Dec. 14, 2007);'4 see also Miller-El v. Cockrell, 537 U.S. 322, 347 (2003) (observing the importance of prosecutor notes for establishing race as factor in peremptory strikes). The societal interest in eliminating racial bias in the process of jury selection makes adequate judicial oversight of that process essential. See, e.g., Docket (Register ofActions): People v. George Brett Williams, $156682;'° Peoplev. Williams, 56 Cal. 4th 630, 700 (2013) (Liu, J., dissenting) (describing the “careful scrutiny that trial courts and reviewing courts must apply to ferret out unlawful discrimination in jury selection — a harm that compromisesthe right oftrial by impartial jury, perpetuates group stereotypes rooted in, and reflective of, historical prejudice, and undermines public confidence in adjudication”) (internal quotation marks and citation omitted). 14 https://www.gpo.gov/fdsys/pkg/USCOURTS-caed-2_06-cv- 00354/pdf/USCOURTS-caed-2_06-cv-00354-10.pdf (last visited March 10, 2017). ‘Shttp://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0& doc_id=1888360&doc_no=S156682 (last visited March 1, 2017) (order to show cause issued on Batson claim). 18 The limits on successive petitions imposed by Proposition 66 similarly bar other claimsraised to vindicate fundamental constitutional rights. Claims alleging the admission offalse evidence,see, e.g., Inre Richards, 63 Cal. 4th 291 (2016); extreme instancesofineffective assistance of counsel, see, ¢.g., Buck v. Davis, 137 S. Ct. 759 (2017), In re Hardy, 41 Cal. 4th 977 (2007) (granting relief on successivepetition on the basis that trial counsel’s failure to gather and present evidence of third-party culpability prejudiced the petitioner during the penalty phaseofhistrial, while rejecting the same claim with respect to the guilt phase), and Jn re Jones, 13 Cal. 4th 552 (1996);juror misconduct, see, e.g., Young v. Gipson, 163 F. Supp. 3d 647, 729-32 (N.D. Cal. 2015); or claims of prosecutorial or judicial misconduct wouldall be barred when evidenceofthe violations emerged only after resolution of the initial petition, unless actual innocence or ineligibility could also be established by a preponderance of the evidence. The stringent limitations Proposition 66 imposes oncapital habeaspetitioners deprive them of access to the courts and, thereby, deprive them ofprotections guaranteed to them by the Constitution. !® 16 Proposition 66 would also have the anomalouseffect of allowing non- capital inmates theability to challenge an illegal sentence without having to overcome procedural bars, but prohibiting capital inmates from doing the same unless they have a claim ofineligibility. See In re Huffman, 42 Cal. 3d 552, 555 (1986) (“The writ [of habeas corpus] will lie where the trial court has exceededits jurisdiction by sentencing a defendant ‘to a term in excess of the maximum provided by law’ .... ) (internal citation omitted); In re Harris, 5 Cal. 4th 813, 838-40 (1993) (collecting cases where the Court allowed inmate challenges to illegal sentences raised in habeas); In re Birdwell, 50 Cal. App. 4th 926, 931 (1997) (“[A]n unauthorized sentence maybe corrected at any time.”); People v. Sanchez, 245 Cal. App. 4th 1409, 1417 (2016) (same) (citing People v. Scott, 9 Cal. 4th 331, 354 (1994); Montgomery v. Louisiana, 136 S. Ct. 718, 723 (2016) (defendant permitted to challenge sentence as cruel and unusual punishment 50 years after his arrest). Thus, capital inmates with a valid constitutional basis for penalty- 19 C. Proposition 66 Violates the Equal Protection Rights of Capital Petitioners. Proposition 66 violates the Equal Protection Clauses ofthe state and federal Constitutions because the differences in the wayit treats capital and non-capital inmates are notrationally related to the advancement of any legitimate governmental interest. Indeed, the differences in treatment Proposition 66 proposes for capital, compared to non-capital, inmates actually work against proponents’ stated goal of accelerating capital postconviction litigation. Where the meansare notrationally related to the legislation’s ends, the law fails under equal protection analysis. Rational-basis review “require[s] the court to conduct a serious and genuine judicial inquiry into the correspondence betweentheclassification and the legislative goals.” Newland v. Bd. ofGovernors, 19 Cal. 3d 705, 711 (1977). A difference in treatment between two groups must have “a fair and substantial relation to the object of the legislation.” Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). “[T]he standardof rationality ... must find somefooting in the realities of the subject addressed by the legislation.” Heller v. Doe, 509 U.S. 312, 321 (1993). “[A]n independent andlegitimate legislative end” for the difference in treatment is required so “that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Romerv. Evans, 517 USS.620, 633 (1996). By contrast, where the difference in treatment does not advance a legitimate governmentalinterest — and, especially, whereit harmsthe interest that it is supposed to be advancing — the legislation cannotsatisfy rational phaserelief, discoveredaftertheinitial petition, will be left without a remedy, while non-capital inmates with claimsof anillegal sentence will remain free to raise such claims in successive petitions. This is yet another example of how Proposition 66 strips capital inmates of fundamentalrights retained by non-capital inmates. 20 basis review. See, e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1000 (N.D. Cal. 2010) (rejecting, on rational basis grounds, Proposition 8’s restrictions on same-sex marriage: “None of the interests put forth by proponents relating to parents and children is advanced by Proposition 8; instead, the evidence showsProposition 8 disadvantages families and their children.”). “A statutory classification which does not bear a rational relationship to the purpose whichthe statute is intended to serve violates the equal protection clause.” Parr v. Mun. Ct., 3 Cal. 3d 861, 864 (1971). Proponents of Proposition 66 attempt to rebut the equal protection claim in twointerrelated ways. First, they assert that capital and non-capital petitioners are not similarly situated. Respondent’s Preliminary Opposition to Petitioner’s Amended and RenewedPetition for Extraordinary Relief at 22-23; Respondent’s Return at 51; Prelim. Opp’n of Intervenor at 45. Second,they claim that the differences in the way the law treats the groups are justified by differences between the groups. Resp. Prelim. Opp’nat 24; Prelim. Opp’n of Intervenorat 46-47. To proponents’ first point, no two groups of people are the same in all respects. It does not resolvethe question to say, as proponents do,that capital and non-capital inmates have been deemed dissimilar in prior cases. See, e.g., Resp. Prelim. Opp’n at 22-23; Resp. Return at 51. The cases on which Respondent relies— People v. Manriquez, 37 Cal. 4th 547, 590 (2005), People v. Jennings, 50 Cal. 4th 616, 690 (2010), and People v. Virgil, 51 Cal. Ath 1210, 1289-90 (2011) — considered whether capital and non-capital defendants weresimilarly situated with respect to particulartrial procedures, not whether they were similarly situated with respect to access to the courts’ habeas jurisdiction. These cases do not— and could not — stand forthe proposition that capital and non-capital inmates will always be differently situated with respect to every law that might distinguish between them. Moreover, identifying a difference between two groupsis onlythefirst 2] part ofthe equal protection analysis, and proponentsalso fail at the next step: explaining how the difference in treatment of the twoclassesis justified by the differences that may exist between the groups. Proponents are quite clear about why they think capital and non-capital inmates may be treated differently under the law. Respondent asserts the groups are not similarly situated because capital petitioners receive more resourcesfor their defense than non-capital petitioners do. Resp. Prelim. Opp’n at 23. Intervenor agrees about the difference in resourcesandstates: “It is no exaggeration to say that this difference is more important than all other differences combined.” Intervenor’s Return to the Order to Show Cause at 48 (internal citations omitted). But the equal protection question is whether the differences between the two groups justify the particular difference in treatment that the law imposes. See People v. Brown, 54 Cal. 4th 314, 328 (2012) (describing equal protection inquiry as “not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged.”) (internal quotations marks omitted); see also Bd. ofTr. of Univ. ofAla. v. Garrett, 531 U.S. 356, 366 n.4 (2001) (noting that a legislative distinction cannot stand if its “purported justifications” make “no sense in light of how the [government] treat[s] other groups similarly situated in relevant respects”). Proponents fail to show that the different legal treatment Proposition 66 applies to capital and non-capital inmates — ie., the means of the legislation — is rationally related to achievementof a goal, legitimate ornot. Without a rational connection between means and ends, the legislation cannot survive rational-basis review. For example, misdemeanants are different from felons, but this Court struck down— on rational-basis grounds— a law that gave “preferential treatment for felons over misdemeanants” in obtaining a community college teaching credential. 22 Newland, 19 Cal. 3d at 707. The poor fit between means and ends, even under rational basis review, is what caused this Court to find an equal protection violation in Newland: “This statutory discrimination against misdemeanants can claim norational relationship to the protective purpose of section 13220.16.” Jd. at 712. Likewise, same-sex and opposite-sex couples differ in some respects, but a law denying marriage licenses to same- sex couples failed rational basis review because the difference in legal treatment was not rationally related to a legitimate governmental interest. Perry, 704 F. Supp. 2d at 997-1002. Are the meansrationally related to the ends? Admittedly, there is a high bar for showingthat a legislature’s meansare so unlikely to satisfy its goals that a rational relationship does not exist between means and ends. See Minnesota v. Clover LeafCreamery Co., 449 U.S. 456, 462-64 (1981). But rational-basis review is not a rubber stamp.!? And Proposition 66 is one of those cases where thelegislation is so patently unworkable that the reasons identified for distinguishing between the two groups capital and non- capital inmates — cannotbejustified by the pursuit ofa legitimate goal. That 17 The state Constitution may provide for an even more searching version of rational basis review than its federal analogue. People v. Barrett, 54 Cal. Ath 1081, 1144, (2012) (Liu, J., dissenting) (applying greater scrutiny under state equal protection analysis than federal equal protection equivalent). See also Warden v. State Bar, 21 Cal. 4th 628, 664-65 (1999) (Brown, J., dissenting) (endorsing “greater precision” in state, than federal, equal protection analysis and “requiring courts to scrutinize the means the Legislature chose to advance its purposes. Rather than merely ‘rubberstamping’the legislative categoriesat issue,” courts should “engag|e] in a serious and genuinejudicial inquiry into the correspondence betweenthe classification and the legislative goals and . . . ask[ ] whether the legislative classifications substantially advance the legislative purposes without being grossly overinclusive or underinclusive.”) (internal citations and quotation marks omitted). 23 C A R R E R A S E c o P h e S e is because the difference in treatment actually impedes the very goals the Proposition purports to pursue. Petitioners explain why Proposition 66’s treatment of successive petitions violates equal protection. This amicus brief showswhythe initiative’s deadlines for filing and deciding capital inmates’ initial petitions fail rational-basis review.? Hastenedtimelines for filing and deciding initial petitions. Under Proposition 66, capital inmates would belimited to one yearto file a habeas petition, with the clock starting to run once counsel is appointed. Non-capital inmates have nosuch timelimit — they must simply file within a “reasonable” amount of time. See Walker, 562 U.S.at 310. In addition, courts reviewing capital habeas petitions would be required to issue a decision in one year for capital cases, or two yearsifthere is a substantial claim of actual innocence; meanwhile, courts reviewing non-capital cases have no deadlines imposed on their review. Proponents justify these differences on the grounds that the hastened timelines will accelerate postconviction proceedings. See, e.g., Intervenor’s Return at 51. But the meansare notrationally related to the ends because the truncated deadlines will actually make cases take longer to resolve. That is in large measure becausethe principal cause of delay is not the timeit takes to research and write the petition, but the time it takes for the appointment of habeas counsel — which is itself a function of counsel’s scarcity.!? The 18 The Court’s unique familiarity with the adjudicatory matters Proposition 66 seeks to regulate makesit particularly well suited to evaluate whether the means chosen actually advance the professed purposes of the initiative or merely serve the purpose of disadvantaging the group burdened by the law. 19 California Commission on the Fair Administration of Justice, Final Report (2008), at 123, 134 (warning eight to ten years passes, on average, from the death judgment to the appointment of habeas counsel, the longest leg in the twenty-five year timeline of postconviction review); Jones v. 24 truncated timelines imposed by Proposition 66 will worsen the existing scarcity of qualified lawyers willing to accept appointment in capital habeas cases, thus making the most significant driver of delay even worse. Letter Br. ofAmicus Curiae California Appellate Project In Supp. of Pet’r’s Req. for Writ of Mandate at 7; Amicus curiae letter of California Appellate Defense Counsel at 2 (describing the “career- andlife-altering choice” that attorneys will face in deciding whether to cease accepting appointments in criminal cases so as to avoid being forced to take capital cases against their conscience or better judgment).”° Proposition 66’s accelerated deadline for Chappell, 31 F. Supp. 3d at 1057-59 (describing significant delays in appointment ofstate habeas counsel andnoting that 159 inmates “have been awaiting appointmentof [habeas] counsel for more than ten years” and 76 inmates with completed direct appeals “have already waited an average of 15.8 years ... for habeas counsel to be appointed”); see also In re Morgan, 50 Cal. 4th 932, 937-38 (2010) (noting delay in appointment of habeas counsel and identifying “serious shortage” of qualified attorneys as a source of the difficulty: “Quite few in number are the attorneys who meet this court’s standards for representation and are willing to represent capital inmates in habeas corpus proceedings. Thereasonsare these: First, work on a capital habeas corpuspetition demands a unique combination ofskills... . Second, the need for qualified habeas corpus counsel has increased dramatically in the past 20 years[.]”). 20 Arthur L. Alarcon & Paula Mitchell, Executing the Will ofthe Voters?: A Roadmap to Mend or End the California Legislature’s Multi-Billion- Dollar Death Penalty Debacle, 44 Loy. L.A. L. Rev. $41, S884 (2011) (reporting that mostattorneys are unwilling to take state capital habeas cases for fear of being unable to comply with the three-year filing timeline, resulting in the loss of the condemned inmate’s opportunity to presenthis claimsin federal court); Appendix A, Court ofAppeal Projects of California, Survey: Proposition 66 Death Penalty Initiative and Potential Effects on Court ofAppeal Panel3, 5-8 (Sept. 9, 2016)(noting that seventy-four percent ofall respondents — including those who are and are not currently handling a capital case — would not accept appointmentto a capital case, even if their refusal required them to resign from the appellate panel; explaining reasons for refusal include time pressure, financial strain, tedium, lack of capital experience, constraints of Proposition 66 timelines, and resistance to 25 filing the initial petition will directly increase delays in getting counsel appointed, thus thwarting the very purpose of the hastened deadline. Proposition 66’s deadlines for filing and deciding cases would slow downthe proceedings in other ways, too. Wherethe initial habeas petition (and associated factual development) is rushed and underdeveloped — asit will be, both because ofthefast filing deadlines and thetight limits on how long the court maytake to hold hearings and considerthe claimsin theinitial petition — the task of reviewing the proceedings and correcting errors made in the initial petition will slow the work ofthe state’s appellate courts, who will review any initial denials. Under Penal Codesection 1509.1(b), on the appealofaninitial petition, these errors and omissions will presumably have to be examined by another qualified attorney, separate from the first habeas attorney. This subsequent attorney must be appointed by the judiciary and given the time and resources to become sufficiently familiar with trial counsel’s performance to determine whetherinitial habeas counsel missed any ineffective-assistance-of-counsel claims that should have beenraised. Quite obviously, this process will create delays. The time this attorney must take to review the case — not to mention the time the appellate courts must take to review this attorney’s pleadings — will be increased asa directresult coercion); Cal. Assembly and Senate, Standing Committees on Public Safety, Hearing of May 17, 2016 (statement of Joseph Schlesinger, Exec. Dir., California Appellate Project) available at: https://ca.digitaldemocracy.org/hearing/1155?startTime=1120&vid=nbx80 9koBKE (“[P]roponents claim to have a better idea. They say, “I know,let’s impose a lot of draconian time limits on the entire process, that will make taking a capital appeal or habeas really, really unattractive proposition. Sure, that will probably dry upthe entire pool of lawyers now willing to take the cases, but here’s the thing: we’ll just force other lawyers to take these cases.” Does anybodyseriously think that will work? You can’t force people to take a case or work they don’t want to take. And if anybody’s going to resist somethinglike that, it’s going to be a group of lawyers.”). 26 of the haste necessitated by the Proposition’s accelerated filing and decision deadlines for the initial petition. Proponents may claim that no delays will accrue in state court because there is an overall cap of five years on state proceedings. But such a claim would ring hollow in light ofproponents’ repeated assertions that the time to decide habeas cases can extend beyond the five-year deadline if the delayis justified. See infra at Section II1.D. Moreover, even assuming there would be a hard cap onthe time required for state proceedings, Proposition 66 has no control over how long the federal courts take to resolve cases. As noted above, the rapid deadlines Proposition 66 imposes on state habeas proceedings will require that quality, thoroughness, and accuracy are sacrificed for speed. In so doing, these deadlines will extend the timeit takes for the federal courts to adjudicate these claims. Where there are errors and omissions in the rushed state habeas proceedings, federal courts will have to expend even more time and effort on the cases, further countering the Proposition’s attempt to accelerate postconviction proceedings. Furthermore, one of the stated goals of Proposition 66 was to “qualify the State of California for the handling of federal habeas corpus petitions under Chapter 154.” Cal. Gov’t Code § 68660.5. Qualifying for “fast-track” treatment would shorten the timeline for cases to be decided in federal court, thus speeding up the postconviction litigation. But a state can qualify for “fast-track” status only if its habeas system meets a number of benchmarks related to the appointment of counsel, as described by federal statutes and regulations. See, e.g., Bennett v. Angelone, 92 F.3d 1336, 1342 (4th Cir. 1996) (holding that “the Act establishes a quid pro quorelationship:A state seeking greater federal deference to its habeas decisions in capital cases must, by appointing competent counsel to represent indigent petitioners, further ensure that its own habeas proceedings are meaningful.”) By worsening the scarcity of available and qualified state habeas attorneys, 27 H a g e l gi s Proposition 66 would directly undermine the State’s chances of qualifying for “fast-track” status, because there will be fewer available and qualified attorneys and because those who remain will not have “the time required for developing and presenting claims,” as necessitated by the implementing regulations of Chapter 154. See 28 C.ER. § 26.21.7) In sum, the impracticable deadlines imposed oncapital petitioners will result in time-consuming errors and omissionsthat slow,rather than advance, the goal of accelerating the proceedings, and these same deadlines will worsen the scarcity of qualified attorneys who can represent capital petitioners, thus exacerbating the most significant source of delay. In short, Proposition 66 will actually make the postconviction system slower than the status quo. Where, as here, the legislative means are directly at cross- purposes with the legislative ends, the legislation merely burdens a disfavored group to no rational end and thus cannotsatisfy rational-basis review. D. Proposition 66 Cannot Be Rescued Through Minor Procedural Adjustments or Creative Judicial Interpretation. Proponents of Proposition 66 deflect concerns aboutits practical and legal infirmities with the assurance that this Court will interpret away the timelines imposedon the judiciary and that the Judicial Council will devise 21 Proposition 66’s attempt to relax the qualifications of habeas counsel will likely exacerbate the problem. Cal. Gov’t Code § 68665(b) mandates “reevaluating” standards this Court applies in determining the qualifications of capital habeas counsel, “to avoid unduly restricting the available pool of attorneys ....” As suggested by the Court’s observation in In re Morgan, cited in footnote 19, supra, the qualifications required of counsel by this Court reflect the broad rangeofskills required for competent capital habeas representation. Assigning counsel without such skills cannot further the effort to qualify this state for the “fast-track” provisions of the AEDPA. 28 some means of making the new law functional. See, e.g., Prelim. Opp’n of Intervenor at 39 (arguing that the “place to work out the details of implementation of this question of judicial administration is the Judicial Council”); Resp. Prelim. Opp’n at 13 (suggesting that the Court can “adopt] a construction of the statute that would avoid constitutional friction”); Br. of Amicus Curiae Ass’n ofDeputy District Attorneys at 21 (“To the Extent That the Time Limitations Imposed by Proposition 66 Appearto Interfere with the Court’s Inherent Authority, They Should Be Interpreted as Directory Only”). These infirmities, however, are part of the basic blueprint of the Proposition and cannot be remedied by tinkering with the details of the initiative’s implementation. Proponents go to great lengths to argue that there is flexibility built into Proposition 66 that will allow courts to bend the rules in the interests of justice. These arguments may be superficially reassuring, but, in failing to meaningfully address the specific problems detailed in the briefing of petitioners and amici, these arguments do not withstand closer consideration. The hard deadlines for resolving capital litigation that the initiative’s sponsors promised to voters are now, in Intervenor’s words,just “[d]irection to reorderpriorities so as to resolve capital cases within a reasonable time.” Prelim. Opp’n of Intervenor, at 40. Intervenor assures this Court that, even if the superior courts take more than two years to decide aninitial petition, they will not have to worry about a writ of mandate unless the delay is “unjustified,” Prelim. Opp’n ofIntervenor,at 40. (The text of 190.6(e) says the delay must be “extraordinary and compelling,” not just “justified,” to avoid mandamus. Cal. Penal Code § 190.6(e).)?? Proponents further 22 A separate problem with theinitiative is its muddled language. The first sentence of section 190.6(e) applies only to the time limits set forth in section 190.6(b), which governsdirect appeals and not habeaspetitions. The 29 promisethat the harsh bar on successive petitions will not be asinflexible as it sounds. “Details of its implementation can and should await concrete cases,”Intervenor urges. Prelim. Opp’n ofIntervenor, at 36. These “details,” it is worth mentioning, are the due process procedures upon which our clients’ lives and the justice system’s integrity depend. Claims about the Proposition’s flexibility ignore the unequivocal statutory languageto the contrary, focusing instead on generalized statements scattered throughout the law and untethered to the specific provisions that are at issue here. See Br. ofAmicus Curiae Ass’n ofDistrict Attorneysat 23- 24. Yet even the scattered sections amici pointto for this supposedflexibility do not suggest that courts retain any “inherent authority,” id., when it comes to managing their dockets in a waythat providesfor both the fair adjudication of capital cases andthe timely considerationofall other critical non-capital matters they are charged with deciding.”? See Ltr. in Support of Pet’r’s Req. second sentence of section 190.6(e) states: “If a court fails to comply without extraordinary and compelling reasonsjustifying the delay, either party or any victim ofthe offense may seek relief by petition for writ of mandate.” Given its placement, and the absence of any language specifying its scope, this sentence is subject to two possible readings: either a writ of mandate is available whenever any court exceeds any of the deadlines described in any subdivision of section 190.6,orelse it is available only where a court exceeds the deadline for deciding the direct appeal. Thefirst reading seems more in keeping with the overall design ofthe initiative, but amicus does not assume that meansit is the correct interpretation. 23 Despite the severe impact that Proposition 66 is poised to have on the state judiciary as a whole — and particularly on the superior courts in Los Angeles, Riverside, and San Bernardino counties — this Court may not have another opportunity to rule on whether the initiative’s reorganization of capital and non-capital judicial affairs crosses constitutional boundaries. The burdened judicial entities are unlikely to raise the issue through litigation and non-capital litigants whose cases are mired in system-wide delays will likely seek out avenues for relief that do not require initiating an independent constitutional challenge, especially in the very court system thatis failing to 30 for Writ of Mandate from Los Angeles County Bar Association at 4-5. Indeed, Intervenor does not shy away from announcing that one of the Proposition’s main goals is to impose a new prioritization scheme on the superior courts, effectively dictating their work flow on a case-by-casebasis. See Prelim. Opp’n of Intervenor at 38 (“Experience in other jurisdictions indicatesthat [five years] is sufficient time [to complete full state review of capital judgments] even in the most complex cases when those cases are given the priority that they deserve.”) (emphasis added).”4 Proponents make the same claims about the Proposition’s supposed flexibility to defend their assertion that it does not violate the original jurisdiction of the appellate courts. Despite proponents’ assertions about flexibility, however, the text and structure ofthe Proposition show thatit does violate the constitutional provisions that govern habeas jurisdiction. Atits core, the basic schemeofthe Proposition is to funnelall capital habeas cases timely resolve their initial dispute. 24 The two jurisdictions on which Intervenorrelies for this proposition are not comparable to California insofar as they had nowhere near the number of individuals in need of capital habeas representation during the relevant time periods. In 1997, the year that Timothy McVeigh was sentenced, there were fifteen individuals being held undera federal sentence of death. Tracy L.Snell, Bureau of Justice Statistics, Bulletin: Capital Punishment 1997 at 1 (Jan. 14, 1999), available at: https://www.bjs.gov/content/pub/pdf/cp97.pdf. In 2004,the year that John Allen Muhammad wassentenced, there were 23 individuals being held under a sentence of death by the State of Virginia. Tracy L. Snell, Bureau of Justice Statistics, Bulletin: Capital Punishment, 2005 at 5 (Jan. 30, 2007), available at: https://www.bjs.gov/content/pub/pdf/cp05.pdf. Amicus curiae requests that the Court take judicial notice of these figures pursuant to Evidence Code section 452(h). The BureauofJustice Statistics was created by federal statute in 1979 to, amongother things, “collect and analyze statistical information, concerning the operationsofthe criminaljustice system at the Federal,State, tribal, and local levels.” 42 U.S.C. § 3732(c)(4). Governmentreportsofthis nature are proper subjects of judicial notice. See Powell v. Super. Ct., 232 Cal. App. 3d 785, 795 n.7 (1991). 31 to the superior courts, thus eliminating the appellate courts’ constitutionally guaranteedjurisdiction. This obviously raises original jurisdiction concerns. Proponentsinsist that, under Penal Code section 1509(a), the appellate courts can still hold on to cases that are filed in their original jurisdiction, provided there is “good cause” to do so. Even if one could get past this stunning admission that Proposition 66’s language in fact impairs the constitutional jurisdiction of the appellate courts by requiring them to find good cause before they are permitted to keep a case, there would bethe further problem that the appellate courts’ attempts to conduct a meaningful review ofwhether “ood cause” exists would take so much time andeffort as to defeat the Proposition’s requirementthat the transfer decision be made “promptly.” See Cal. Penal Code § 1509(a). Andif the appellate courts conduct only cursory review, more in line with the Proposition’s emphasis on speed, then “good cause” would not be a meaningful protection of the original jurisdiction of the appellate courts. This is one example ofhowthe constitutionalinfirmities of the Proposition cannot be papered over by claims that it will be read flexibly. Thestructure of the Proposition gives further notice that the appellate courts will lose their original jurisdiction. The detailed choreography the Proposition creates for habeas proceedingsis predicated on the assumption that the superior court will decide the initial petition. Section 1509(f), for example, puts a hard deadline on the superior court’s resolutionofaninitial petition, but provides no indication ofwhat the deadline wouldbe,if any, for an initial petition decided by this Court or the Court of Appeal. Similarly, section 1509.1 sets out the framework for appealing the denial of an initial petition, but it refers only to petitions decided in the superior court, making no mentionofpetitions decided in the appellate courts’ originaljurisdictions. And section 190.6(e) threatens mandamus when the case is not resolved quickly enough. Query:In the case of an initial petition entertained by this 32 Court, would this Court have to issue mandamusto itself if it exceeded the statutory decision deadline? Would the Court ofAppeal issue the mandamus to this Court? Neither scenario is reasonable. Quite simply, the Proposition’s structure reveals what proponents try to conceal: the Proposition will eliminate the constitutionally created original jurisdiction of the appellate courts overcapital habeas matters. Here, as in other parts ofthe Proposition, proponentsoffer no plausible explanation for how the initiative could operate without contravening the Constitution. Intervenor suggests that nothing would be lost if the appellate courts’ original jurisdiction over habeas petitions were replaced by an appeal from a superior court’s denial and a subsequentpetition for review in this Court. Intervenor’s Return at 26. Theright to file an original habeaspetition in any court, however, is so important a procedural safeguard thatit is enshrined in the state Constitution. Filing an original petition in an appellate court relieves a petitioner of the obligation of returningto the very judge who may have committed or tolerated constitutional violations that occurredattrial. Under the new regime, appellate review would be limited to “law alone,” Cal. Penal Code § 1235(a), a much narrower scope than that afforded initial petitions. Further, a petitioner would have little hope of gaining access to this Court’s substantial body of experience and special expertise in adjudicating capital habeas claims. Because this Court will grant a petition for review in only a few narrow circumstances,”* Proposition 66 would place the correction oferror in capital cases — no matter how egregiousor how dire 2% “The Supreme Court may order review of a Court ofAppeal Decision: (1) When necessary to secure uniformity of decision or to settle an important question of law; (2) When the Court ofAppeal lacked jurisdiction; (3) When the Court ofAppeal decision lacked the concurrence of sufficient qualified justices; or (4) For the purpose of transferring the matter to the Court of Appeal for such proceedings as the Supreme Court may order.” Cal. Rules of Court, Rule 8.500(b). 33 the consequences — largely beyond this Court’s ability to remedy by granting review. It is unreasonable to expect that abbreviated timelines, conscription of inexperienced counsel, and the redirection of cases to overburdened superior courts will result in the attentive review that these cases have received in this Court and that they merit by virtue of their gravity and complexity. IV. CONCLUSION The Proposition imposesstrict deadlines in an attempt to fulfill its promise to voters to speed up postconvictionlitigation. Proponents’ attempt to reframe Proposition 66 as a font of flexible guidelines and standardsis not credible. The Proposition’s commitmentto haste is antithetical to the level of judicial attention required in death penalty cases, where the deliberate deploymentofjudicial scrutiny “allow[s] each case the necessary time, based on its individual facts and circumstances, to permit this Court’s careful examination ofthe claims raised”andis “the opposite of a system ofrandom andarbitrary review.” People v. Seumanu, 61 Cal. 4th 1293, 1375 (2015). If Proposition 66 possessed the flexibility that its proponents now claim, it would impose impossible and destructive timelines on litigants and the courts, only to turn around anddeclare those sametimelines merely optional. The end result would not be judicial efficiency, but randomness and inconsistent enforcementin the judicial system. The problemsin California’s capital postconviction system stem from a mismatch between the allocated resources and the staggering backlog of cases, constantly fed by an overly broad death penalty law. See California Commission on the Fair Administration of Justice, Final Report (2008), at 138-42 (discussing problems, including delay, that result from the breadth of California’s post-1978 death penalty statute). Proposition 66 does nothing 34 to alter the fact that neither this Court nor the Judicial Council can reduce the volumeofcases charged capitally in thetrial courts, unilaterally increase the judiciary’s budget, or create newjudicial positions.*® Shuffling money from one overburdened superior court to another will not be enough to plug the staffing shortfalls certain to follow from implementingProposition 66.7’ See Br. of Amicus Curiae California Appellate Project In Supp. of Pet’r’s Req. for Writ ofMandate at 4-5. Norcan these institutions simplify the inherently complex business of capital postconviction litigation, as laid out in detail above. Proponents’ claim of flexibility in Proposition 66 is thus revealed for 26 See Cal. Gov’t Code §§ 68502.5(a)(5) and (6) (Judicial Council can reallocate funds between courts, but Legislature must approve trial courts’ budget), 69580-606 (setting forth the number of superior court judges for each county), 69614(c)(1) (“The Judicial Council shall report to the Legislature and the Governor on or before November 1 of every even- numberedyear on the factually determined need for new judgeships in each superior court.... ”), and 69619.5 (“The Legislature hereby ratifies the authority of the Judicial Council to convert 10 subordinate judicial officer positions to judgeships in the 2016-17 fiscal year when the conversion will result in a judge being assigned to a family law or juvenile law assignment previouspresided over by a subordinate judicial officer....”). 27 The financial burden on counties to fund the shift of capital habeas cases to the superior courts would be enormous. Although Article XIII B, section 6(a) of the California Constitution requires the state to reimburse local governments for mandates imposed by the Legislature or any state agency, the courts have interpreted the term “Legislature” in this context as notincluding the people acting pursuant to the powerofinitiative. See, e.g., California School Boards Ass’nv. State, 171 Cal. App. 4th 1183 (2009) (“The State’s constitutional duty to reimburse local governments for mandated costs does not include ballot measure mandates.”). Competing budgetary commitments constrain the amount of funding the Legislature could devote to this purpose. See, e.g., Brief of Loni Hancock, Mark Leno, and Nancy Skinner as Amici Curiae in Support of Ernest Dewayne Jones, Case: 14- 56363 (9th Cir. Mar. 6, 2015), ID: 9448794, DktEntry:36, at 35 (“Fiscal and political realities make clear that the funding neededto fix the dysfunctional death penalty system will not be forthcoming.”). 35 whatit is: a feint meantto distract from the Proposition’s inherentstructural flaws. There is no wayto adhereto the plain terms ofProposition 66 without radically restructuring the business of the courts, either by adding staff, delaying otherclasses of cases, skimping on the review providedto capital cases, or — most likely — some combination ofall three. And the attempt to implementthis misguided measure appears destined to drag the system ever further off course. Dated: March 30, 2017 Respectfully submitted, HABEAS CORPUS RESOURCE CENTER ALG “Midhael J. Hersek7, / Attorney for Amicus*Curiae Habeas Corpus Resource Center > 36 CERTIFICATE AS TO LENGTH I certify that this Reply to the Informal Response contains 13,297 words, verified through the use of the word processing program used to prepare this document. Dated: March 30, 2017 Respectfully submitted, HABEAS CORPUS RESOURCE CENTER By. Mighael J. Hers¢k— 37 APPENDIX A COURT OF APPEALSPROJECTS OF CALIFORNIA, SURVEY: PROPOSITION 66DEATH PENALTYINITIATIVEAND POTENTIAL EFFECTS ON COURTOFAPPEAL PANEL (SEPT. 9, 2016) APPELLATE DEFENDERS, INC. 555 West BEecu STREET SUITE 300 SAN DiEGo, CA 92101 (619) 696-0282 Fax: (619) 696-7789 E-mail: eaa@adi-sandiego.com SURVEY: PROPOSITION 66 DEATH PENALTY INITIATIVE AND POTENTIAL EFFECTS ON COURT OF APPEAL PANEL by Court of Appeal Projects of California September 9, 2016 The California Court of Appeal projects have been investigating the potential effects on the panel of Proposition 66,' an initiative intended to expedite imposition of the death penalty. It is on the Novemberballot. Amongthe various provisions of Proposition 66, one is of special concern to the projects — the provision for making acceptance of death penalty appointments a condition of membership on the Court of Appeal panel. New Penal Code section 1239.1, subdivision (b) would state: When necessary to remove a substantial backlog in appointment of counselfor capital cases, the Supreme Court shall require attorneys whoare qualified for appointment to the most serious non-capital appeals and who meetthe qualifications for capital appeals to accept appointmentin capital cases as a condition for remaining on the court’s appointmentlist. A substantial backlog exists for this purpose whenthe time from entry of judgmentin thetrial court to appointment of counsel for appeal exceeds six months overa period of twelve consecutive months. Other effects, less direct, on Court of Appeal panels could flow from the proposed short time frames for handling certain aspects of death penalty cases under Proposition 66. These could make death penalty casesless attractive to counsel. This might put additional pressure on the Supreme Court to invoke the provisions of new section 1239.1(b) — and also increase the chancethe attorneys would simply turn away from appointed appealsaltogether. 'The full text of Proposition 66 is at http://www.oag.ca.gov/system/files/initiatives/pdfs/15-0096%20%28Death’%20Penalty™% 29 0.pdf?. SURVEYS ON EFFECTS OFINITIATIVE ON APPELLATE PANELS 2014 Survey A 2014 proposal had similar provisions, although the proposal ultimately was withdrawn and never appeared on the ballot.” Theprojects investigated the potential effects of that proposalat the request of the Legislative Analyst. Their analysis potentially could have been put to use in ballot materials. The projects approachedthe task through a survey ofthe attorneys mostlikely to be subject to the restrictions on Court of Appeal panel membership — those takinglife without possibility of parole (LWOP) cases. There were 148 attorneys surveyed; ofthese, 107 (72%) responded. The survey consisted of four questions: 1. Are you currently counsel in an automatic appeal or capital habeas proceeding? 2. Would you accept a capital appeal if that were a condition of remaining on the Court of Appeal panel? (Or, if you already have a capital appointment, would you accept another one when your responsibilities in the present one permit?) 3. If the answer to question 2 is NO, please briefly explain the reason. 4. If you were to accept a capital case governed bythe termsof the proposedinitiative, how would that affect your ability to handle non-capital appointments? 2016 Survey To assess the situation in 2016, the projects replicated the 2014 survey, asking the 117 attorneys they considered eligible for LWOP appointments the same four questions that had been on the 2014 survey. A total of 94 attorneys answered — a responserate (80%) even higherthan it had been in 2014. The full text of the 2016 surveyis in Appendix A. *The 2014 proposal would have movedinitial death penalty appeals to the Court of Appeal, instead of the Supreme Court. That provisionis not part of the 2016 initiative. 2 RESULTS OF SURVEYS The responses to questions 1 and 2 in 2014 and in 2016 can be comparedin the following charts: 2014 Survey Would you take a capital case (or Number and % of those Number and % of those anotheifrequired saepdalase” a not aeitalcase a Total Yes 8 (27%) 19 (25%) 27 (25%) No 22 (73%) 55 (71%) 77 (72%) No response/ unsure 0 (0%) 3 (4%) 3 (3%) Number and % ofall 107 respondents 30 (28% ofall respondents) 77 ~(72% ofall respondents) 107 (100%) 2016 Survey Would you take a capital case (or Number and %of those Number and %of those another)if required currently handling a not currently handling a Total undertheinitiative? capital case capital case Yes 11 (46%) 15 (21%) 26 (28%) No 8 (33%) 54 (77%) 62 (66%) No response / unsure 5 (21%) 1 (1%) 6 (6%) Number and % ofall respondents 24 (26% ofallrespondents) 70 «(74% of allrespondents) 94 (100%) In the two survey years, the percentages of respondents who currently have a death penalty case were very similar, as can be seen in the bottom line of the charts: 28% in 2014 and 26% in 2016. The second and third columnsof each chart show the answers of attorneys within eachof the two groups, those with and without a current capital case. Attorneys who are not currently handling a capital case The responses among those whoare not currently handling a capital cases were similar in 2014 and 2016: In 2014, 71% of those attorneys said they would not take a capital case even at the cost of losing their Court of Appeal panel membership. In 2016 their response hardened even further: 77% would not accept a compulsory death penalty appointment. As in 2014, the projects must caution that it is one thing to answer a survey question and anotherto give up one’s meansoflivelihood. The explanations offered in Question 3 (below) for declining a capital case will help the committee decide how to weigh a “no” answer. Reasons such as the contemplation of retirement and perceptions of the financial hardships entailed in death penalty cases may indicate “firm”decisions, lending some credence to “no” answers. Other reasons maybe“softer,” subject to change when the time for decision arrives. Attorneys who are currently handling a capital case In contrast to the non-capital attorneys just discussed, the group of attorneys who currently have a capital case gave dramatically different responses in 2014 and 2016. In 2014 that group was evenslightly more adamant than the group whodid not have a capital case, with 73% saying they would not accept a capital appointment under compulsion versus 71% for the non-capital case attorneys. The pattern flipped in 2016, whena plurality (46% of the group) said they would accept an appointment underthe initiative and only 33% said they would refuse. A large percentage (21%), though small actual number(5), in the group of those with a capital case indicated indecision by not answering the question; there were zero skipped responsesin that group in 2014. The reasons for the change in 2016 are a matter of speculation. One consideration is that only 24 attorneysare in that group, and the sample maybe too small to allow statistically meaningful results. A small amount of turnoverin such a group — e.g., the recruitment of a few new attorneys and the retirement of some between 2014 and 2016 — and a change of mind onthepart of only a few could alter the percentages significantly. Anotherpossibility is that some attorneys were swayed bythe fact that the initiative is actually qualified for the ballot in 2016 and therefore the prospect of losing a Court of Appeallivelihood is more “real” than it was in 2014. All responding attorneys Ofall respondents, only 25% in 2014 and 28% in 2016 said they would take a capital case underthe initiative. A strong majority, 72% and 66%, would decline. The number of undecided attorneys doubled from 3 in 2014 to 6 in 2016, but those could be insignificant figures, statistically. As in 2014, the overall results throw serious doubt on the prospectthat the initiative would make major inroadsonthe capital backlog. A sizeable majority ofall attorneys (66% in 2016) say they would leave the Court of Appeal panel rather than 4 accept such an appointment.It is true that 15 who do not now havea capital case would accept one undertheinitiative, but the gain of such attorneys is to some extent countered bythe loss of attorneys now accepting capital cases: 8 of the 24 respondents with a current capital appointment would not accept another under the initiative. Of course, we cannot necessarily assumethe attorneys in either group wouldstick with the status quo if the initiative were out of the picture: some now in the “no current capital case” may decide to take one for reasons other than the initiative, and some whohavea capital case now may decide not to take any more, regardless ofthe initiative. Whatever the ultimate gain — perhaps a few capital attorneys — it could come at an enormousprice to the non- capital appointed counsel system. ATTORNEYS’ EXPLANATIONS FOR THEIR RESPONSES In addition to the Yes-No questions (numbers 1 and 2) of the survey discussed abovein the RESULTSsection, Questions 3 and 4 probed for narrative explanations of the attorneys’ answers, to help the projects better assess the effects of the initiative on their program. Question 3 asked attorneys who had answeredthat they would not accept an appointment underthe initiative to explain the reasonsfor their position. Question 4 asked attorneys how being appointed to a death penalty case they had not sought would affect their ability to handle a non-capital workload. Question 3: If you would not accept a death penalty appointmentundertheinitiative, even though you had to resign from the Court of Appeal panel, explain the reasons. This report breaks down the attorneys’ reasons for refusing to accept a death penalty appointment underthe initiative into several groups, which mirror those analyzed in 2014. Some representative answers in each group are shown below.All responses in full are in Appendix B. Stress and pressure There are many attorneys who have the emotionalfortitude necessary to handle the real-life professional demandsof a capital appeal. At this point in my life and career, | am certain | am not one. | wasinvolved in capital work earlier in my career, and it was exceptionally unpleasant, at times even making me physicallyill. [The] consequencesoffailure are greaterin capital cases, making the work substantially more stressful on counsel, another reason | would not want to handle such a matter. Briefly stated, these cases carry too many negatives, such as additional stress, financial penalties .. . and the tedium of working on only one case for monthsat a time. Having handled capital casesin the past, | know how emotionally draining they are. | do not wantto undertake another such case. Time commitment Capital appeals are extraordinarily time-consuming & require substantial [attention] to detail. Even now, Cal Supreme Ct applies pressure as to deadlines, & if overall processis supposed to be sped up underProp66,ability to get work done as court demands may simply not be feasible. Capital cases are not the same as LWOPcases. They are more time consuming and require different and deeper knowledge and experience to representthe client effectively. Despite my experience with LWOPcases,| would not feel comfortable assuming the responsibility of representing someone sentenced to death. Based ontalking to many colleagues who havetakenat least one capital appeal- they take over yourlife and practice. | am a sole practitioner and cannot devote the kind of extended time a capital case requires — either physically or financially. Taking a capital case is incompatible with managing a caseload of noncapital appointments. It is also a 10-15 year commitment | am unwilling to make at this point in my career. Nearretirement | am in mysixties and am nottoofar from retirement. It would not make senseto take ona capital case that could go onfor years. | am not going to be practicing law the numberof years it would take to processa capital appeal. | would likely retire (or die) before the case was completed, and | don’t feel right about starting something | can’t finish. | am 61 yearsold;| likely will be retiring from all work (and thusall court of appeal appointments), within the next five years anyway.If a condition of remaining on the Court of Appealpanelis that | take a death penalty case (which | doubt could be completed within my five-yeartime frame), then passageofthis bill would simply expedite my retirement. | am 74 years old and do not want to take on the responsibility of a capital appeal at this point in mylife. | am nearingretirement. .. . Were | notretiring, this would present a very difficult situation for me since the bulk of my practice is court-appointed appeals in the Courts of Appeal. If | wanted to continue working, and Proposition 66 went into effect, | would have to find another way to makea living, perhapsbyshifting to civil appeals. Financial sacrifice [G]iven how longit takes to resolve a capital case, | would be concernedthat the length of appointment would create a financial burden on me and my family as compensation for my work would be stretched out over a greater period of time. {| have learned that the attorneys who do reasonably well financially with capital appeals are those whotakea lot of them, and there is a huge learning curvewiththefirst capital appeal — | know attorneys who havetried it once, it was an economic disaster, and being “on call” for a capital appeal every some numberof yearsis likely to be akin to the economic disaster. Additionally, to do a reasonably professionaljob in a capital appeal, one hasto learn a highly complex, entirely new and constantly changing nationwide body of law, capital appeals — even more of an economic investmentthat | couldn't be paid for, an investment not worthwhile at this late stage of my career. [T]he current rate of pay is inadequate. 2) [R]isk that substantial numberof hours would be cut from comp.claims, as Calif. Supreme Court regularly did fo me in myprior capital cases. (Would be a] disruption of cashflow overtime. | currently have two pending capital cases and have one completed. The case timelines are too long. The compensationis inadequate. Time framesofinitiative Prop. 66 severely compressesthe time period for handling a capital case; it would be difficult to handle capital cases in such a compressed time period; it would bedifficult to handle my other cases while being underthe time pressure of a compressed period to handle a capital case. [A] capital appeal with the kind of compressedfive-yeartime spanin the proposedinitiative would present enormous, sometimesall-consuming demands on my caseload for protracted periodsof time, which would makeit effectively impossible to plan a caseloadintelligently; this is a problem | do not have with noncapital appeals. In addition to that, a capital appeal compressed into such a short timespan would be so all-consuming that it would destroy the variety of appeals, which is much of what holds myinterest in what is otherwise a difficult field (since even the bestof us rarely wins an appeal), with nothing to balance thatout. Resistanceto coercion I'm too close to retirement. But evenif | weren’t, | believe that forcing an attorney to accept anytype of case as a condition of remaining on the court’s appointmentpanelis just wrong. | would consider challenging the legality of requiring us to take capital cases as a condition for being on the appointment panel. Many of my cases involve mental health issuesin the civil and quasi civil/crimina! arenas, and | don’t see why | should have to give those cases up to take a capital case for which | have had no experience. | should not be penalized for the fact that | have been deemed qualified to handle a few LWOPcases. Autonomyin general & specifically as it relates to ability to decide what cases to acceptis one of few benefits of being a panelatty. . . . | personally do not decline any case except based on workload. However, the idea that the government would force meto take a capital case in order for me to get other work of the type | have done competently for 20 years disturbs me. Even more disturbing is that they want meto doit so they cankill my client sooner, when the purpose of my representation is to prevent that. A lost LWOPappeal continues the status quo, but lost capital appealtriggers death. All of this perturbs me enoughthat | might not take another capital case if Prop 66 passes.If that means | am off the COA panels, so beit. This is a highly personal, moral andethical, decision. | would not allow anyoneto dictate, force, or bribe me to take a capital case that was not of my own choosing. | am notinterested in doing capital appeals. | consider this measure involuntary servitude. Opposition to death penalty | do not believe in the death penalty and would notparticipate in the system. | will not participate in the death penalty on moral grounds. Out ofreligious conviction,[I] could not take part in a death penalty system. | don’t want to become a box that can be checkedoff before a person can be executed; . .. | don’t want to be forced to do something that | have moral qualms about. | am opposed to the death penalty & will do nothing to helpin its imposition. If that means finding anotherline of work,| will. There is a reason why nowill take these cases & forcing people to take them is wrong for so manyreasons.. . | will not be part of that system or help the state put a person to death. The death penalty should be abolished. For moral, religious and emotional reasons,| will not participate in defending capital cases.| reached this decision after having represented defendants at both the capitaltrial and appellate levels. Question 4: If you were to accept a capital appointment undertheinitiative, how would that affect your ability to take non-capital cases? For the most part, the attorneys’ answersreflect the commonsenseposition that a capital appeal would makesignificant inroads on an attorney’s non-capital work,if not overwhelm the practice completely for long periods of time. This meansthat, even if the attorneys protect their Court ofAppeal panel membership by taking a capital case, they may simply be unavailable a great deal of the time. Sample estimates of the effect of capital appointments on non-capital work include: [It] would makeit impossible to handle non-capital appointments. As asole practitioner, | could not balance court of appeal cases with the work necessary to work on a capital case. Since my case-loadis limited, would completely eliminate ability to accept non-capital appointments. Taking on a case of the magnitude of most capital appeals would greatly decrease myability to handle non-capital appointments—especially given the time constraints on capital appeals in the proposition. The time spent on the capital case would take awaytime | would spend on other cases, so existing non-capital cases would likely be delayed, and | might have to decline appointment on non-capital cases during certain periods while the capital case is pending. The longer time framefor the capital case, and greater delays in being able to submit claims, could well causefinancial burdens that would necessitate seeking other work that pays at a higher rate and/or more regularly, which would also negatively impact myability to handle non-capital cases... . Time is a finite resource, and time spent on one case cannot be spent on another. While | would take a capital case if | must in order to stay on the appellate panels, my experience with that case could affect future decisions. | have donea capital appeal. It was a massive undertaking (and it didn’t even have a huge record or a high statewide profile). | was essentially marriedto it for long stretchesoftime. It was extremely disruptive to my efforts to keep up with my noncapital appellate caseload during those periods of time, and after those stretches were done, my caseload then had a large numberof overdue noncapital appellate matters that essentially had to be doneall at the sametime.It also significantly complicated my efforts to manage my noncapital appellate workload -- and at that time, my noncapital appellate workload was much less complex thanit is now. I've .. . handled a capital appeal before. It madeit very difficult to work on non-capital appointments at the same time given howall-consuming the case was. [It] would proportionately reduce myability to handle non-capital appointments. Probable ratio: 5 to 10 LWOPappealsvs. one capital appeal. | would have to reduce my caseload by an estimated 50%. It would limit the number of new appointments | could accept, and likely cause othertime- related problems with deadlines in current cases. A death case would overtake my current caseload given the huge learning curve to become competentto represent a client. | am not willing to undertake the amountoftraining necessary to become competent. In addition, given the size and complexity of the cases,it would be impossible to maintain even close to the amountof cases | currently accept from the panels. This workis difficult enoughasit is; forcing us to take death casesis insult to injury. Again,if this passes,| will not take a death case and,if forced to, will begin looking for anotherline of work. It would limit my ability to handle non-capital appointments. From my understanding capital cases are extremely time-consuming. | am strapped for time enoughasit is handling all of the non-capital cases | have. There simply is no room in my schedule to accommodate something as big as a capital case. Something would haveto give. | would end up taking fewer non-capital cases — and there would be an overload of non- capital cases and too few attorneys to take them. It would drastically affect my ability to accept non-capital cases. | have spokento several capital counsel who have completely stopped accepting non-capital cases as a result of their death penalty cases. This would be devastating to my career. . . . | would seriously considerretiring earlyif this was mandated. All responses are reproducedin full in Appendix C. CONCLUSION To summarize: The Proposition 66 survey of LWOP-eligible attorneys obviously dealt with a matter of great concern to those attorneys, given the 80% rate of responses and the heartfelt tone of many comments. Someofthe mainfindings include: « Amongthe group of those who have nocapital case at present, the overwhelming majority — 77% — would not accept one evenif rejecting it meantineligibility for Court of Appeal panel membership. This is even more adamant than that group’s position in 2014, when 71% gave that answer. A minority of the group (a total of 15 in 2016), however, would accept a capital case . » Amongthe 24 respondents who havea capital case at this time, 33% would not accept a new oneif Proposition 66 passes. This is a considerable shift from that group’s position in 2014, when 73% said they would not accept another capital case underthe termsofthe proposedinitiative. The 33% (8 attorneys) who would decline nevertheless would bea loss to the capital panel, partially offsetting the 15 non-capital attorneys discussed above who would join that panel after the initiative. ¢ Amongail respondents, 66% would not accept a new capital case under Proposition 66. * Those Court ofAppeal panel attorneys who accept a capital appointmentare likely to be unavailable for Court of Appeal cases for extended periods of time, despite the fact their panel membershipis preserved by their agreeing to take a capital case. 10 Although further study of the factors affecting the decision to accept or reject a death penalty case is necessary if more precise predictions are desired, these results suggest the initiative will likely have only a limited effect on the availability of capital counsel. On the other hand, unless implemented in a cautious way designed to minimize damageto the Court of Appeal panel, the initiative could be extremely destructive to that panel, potentially draining away its top ranks and, byripple effect, the lower onesas well. Elaine A. Alexander, Executive Director Appellate Defenders,Inc. Jonathan Soglin, Executive Director First District Appellate Project Jonathan Steiner, Executive Director California Appellate Project, Los Angeles George Bond, Executive Director Central California Appellate Program Dallas Sacher, Executive Director Sixth District Appellate Program Laurel Thorpe, Deputy Director of the Central California Appellate Program, participated in the preparation ofthis report. 1} PROOF OF SERVICE Iam over 18 years of age and not a party to this action. I am a resident of or employedin the county where the mailing took place. 2. Mybusiness address is: Habeas Corpus Resource Center, 303 Second Street, Suite 400 South, San Francisco, California 94107. 3. Today, I mailed from San Francisco, California the following document(s): e Application for Permission to File Brief ofAmicus Curiae; e Brief of Amicus Curiae Habeas Corpus Resource Center in Support of Petitioners Ron Briggs and John Van De Kamp e Appendix A 4. Tserved the document(s) by enclosing them in a packageor envelope, which I then deposited with the United States Postal Service, postage fully prepaid. 5. The package or envelope was addressed and mailed as follows: Jose Alfonso Zelidon-Zepeda Kent S. Sheidegger Office of the Attorney General Criminal Justice Legal Foundation 455 Golden Gate Ave., Suite 11000 2131 “L” Street San Francisco, CA Sacramento, CA (415) 703-5500 (916) 446-0345 Counsel for Respondent Intervenor Christine Marie Von Der Ahe Rayburn Lillian Jennifer Mao Orrick, Herrington & Sutcliffe, LLP Orrick, Herrington & Sutcliffe, LLP 2050 Main Street, Suite 1100 1000 Marsh Road Irvine, CA Menlo Park, CA (949) 567-6700 (650) 614-7400 Counselfor Petitioner Counsel for Petitioner As permitted by Policy 4 of the California Supreme Court’s Policies Regarding Cases Arising from Judgments of Death, counsel intends to complete service on Petitioner by hand-delivering the document(s) within thirty calendar days, after which counsel will notify the Court in writing that service is complete. I declare under penalty of perjury under the laws. of the State of California that the foregoing is true and correct. C5 4) “a EN. Date: March 30, 2017 Of Lhe Carl Gibbs