The following is an executive summary of the Santa Clara Law Review article,
the full
report can be read in .pdf
format and the official version is available from the Law Review itself and
also on-line on Westlaw and Lexis.
On January 11, 2003, the Governor of Illinois commuted the sentences of the
entire death row population of his state. He did so after reviewing the results
of a comprehensive study prepared by a blue ribbon Commission. Innocent people
were convicted, decisions as to whom would receive death were random, arbitrary
and seemed heavily influenced by race, poverty, location, tactics of police and
prosecutors and the abilities and resources of the defense lawyers. The blue
ribbon Commission found that the Illinois system was badly in need of repair if
repair was possible at all.
The reaction among some of California’s death penalty advocates was,
"California is not Illinois." That assertion was intriguing and
launched the author on a year long study resulting in a comprehensive analysis
of California’s capital punishment system. Mr. Sanger's article on this
subject appears in the current issue of the Santa Clara University Law Review,
Volume 44, Issue 1, "Comparison
of the Illinois Commission Report on Capital Punishment with the Capital
Punishment System in California." Unfortunately, the clear
conclusion is that, "California is Illinois."
The Illinois Commission Report was originally ordered by the Illinois
Governor because it became clear that their system was flawed. At least 13
innocent people had been condemned and sent to death row (they have since
discovered four more). The Report found that there were twelve aspects of the
criminal law process in Illinois that warranted study. The Commission concluded
that all twelve aspects required significant improvement to minimize, but not
prevent, the execution of an innocent person. To this end, the Illinois
Commission made 85 specific recommendations.
The work of the Illinois blue ribbon Commission is certainly relevant to
California unless California had already put in place the safeguards recommended
in the Commission Report. California has the largest death row population of any
state in the United States with over 650 people now condemned to die – three
times the number on Illinois’ death row – so any flaws which existed here
would have potentially triple the impact in human lives. Mr. Sanger set about to
compare California’s death penalty system to the 85 recommendations of the
Illinois Commission.
The findings were remarkable: California complies with just 6.17% of the
Illinois recommendations. Furthermore, California not only fails to meet
the recommendations but does not have some of the safeguards which are actually
in place in Illinois and other states.
Still, many of the recommendations of the Illinois Commission Report could be
easily complied with. None significantly hamper police investigations or the
conviction of the guilty. All are directly related to achieving more reliable
and just results. The innocent people on Illinois’ death row were a testament
to the failures the reforms are intended to correct. And a direct corollary to
convicting the right person is that the real killer does not remain free.
Illinois had learned the tragedy of this last point the hard way, as they
prosecuted the innocent only to have the real killer commit additional rapes and
murders. The Commission studied how these tragedies occurred and its Report made
the 85 recommendations that would best address the flaws that permitted these
tragedies to occur.
California law addresses less than a handful. Among the recommendations not
followed in California capital cases are these: that police should
"continue to pursue all reasonable lines of inquiry whether these point
towards or away from the suspect"; that police interrogations of suspects
be video-taped where practical; that witnesses be audio-taped; that an effort be
made to determine if a suspect is mentally retarded before interrogation; that
line-ups and photospreads be conducted with some minimum safeguards; that
homicide detectives, lawyers and judges be trained regarding unreliability of
"jail house snitches" and other informants; that foreign nationals
actually be accorded their right to contact their consul under the Vienna
Convention; that forensic and DNA testing be standardized, independent and
adequately funded; that the group of persons who are subject to the death
penalty be defined more carefully; that there be state-wide standards for the
selection of cases in which the death penalty will be sought subject to a
statewide review committee; that there be state-wide mandatory education,
training and review of judges handling capital cases; that there be state-wide
mandatory minimum qualifications, education, training and review of lawyers
handling capital cases; that jury instructions be clarified on sensitive issues;
that trial judges be required to report unethical prosecutors as well as
incompetent defense lawyers to the State Bar.
Some aspects of the California system are so substantively different from the
Illinois recommendations that our system is even more out of compliance than the
mere statistical comparison indicates. For instance, the Supreme Court requires
that a death penalty system "narrow" the number of cases that are
eligible for the death penalty. It calls for a system to be in place that does
not make the imposition of the death penalty arbitrary or subject to the
exercise of discretion for the wrong reasons.
To accomplish that, California has "special circumstances" which
make a case "death eligible." Illinois recommends that there be five
such circumstances - and five only. California has 25, with subcategories that
expand the list to over 36. Worse yet, California’s interpretation of some of
the circumstances makes almost all murder cases potentially death
eligible. The concern is not that more or less murderers get the death sentence
– only a small fraction of those technically eligible actually do receive a
death sentence – but that the people who are selected for death are selected
consciously or unconsciously on the basis of race, poverty, location and the
lack of ability or resources of their defense lawyers.
The conclusion of the study is that California’s system is seriously flawed
and dangerously unjust. There is no assurance that the people on California’s
death row, the largest death row population of any state in the United States,
have been selected fairly or with any assurance of accuracy. Careful comparison
to the 85 recommendations of the Illinois Commission, as well as anecdotal
evidence, lead to the inescapable conclusion that California’s death penalty
system is far from one that should be used to determine whether someone lives or
dies.
In addition to this legal study of California capital punishment, we need to
have additional studies on the practical effect of race, poverty, and lack of
adequate representation on the question of who actually gets death in
California. To this end, the California Governor and the California Legislature
should impose a moratorium – a time out – from any more executions until all
of the studies can be completed. Knowing now, as we do, that California’s
system is so badly flawed, it would be unconscionable to allow executions to
occur until the problems are addressed.
Reproduced below is a summary chart of the comparison of the Illinois system
to that of California. This chart is an Appendix to the Santa Clara Law
Review article.
|
Illinois Commission Report
Recommendation |
California Compliance |
Comments on California Law |
|
Recommendation 1: After a suspect has been
identified, the police should continue to pursue all reasonable lines of
inquiry whether these point towards or away from the suspect |
NOT MET |
Not required under current California law
and current case law excuses failure to pursue leads, interview witnesses
and collect evidence. |
|
Recommendation 2: (a) The police must list
on schedules all existing items of relevant evidence, including
exculpatory evidence, and their location, (b) Record-keeping obligations
must be assigned to specific police officers or employees who must certify
their compliance in writing to the prosecutor; (c) The police must give
copies of the schedules to the prosecution, (d) The police must give
access to all investigatory materials in their possession. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 3: In a death eligible case,
representation by the public defender during a custodial interrogation
should be authorized by the [state legislature] when a suspect requests
the advice of counsel, and where there is a reasonable belief that the
suspect is indigent. To the extent that there is some doubt about the
indigency of the suspect, police should resolve the doubt in favor of
allowing the suspect to have access to the public defender. |
NOT MET |
No requirement under current California
law. The public defender is only appointed for adults at the arraignment.
Therefore, invocation of right to counsel by an arrestee results in
returning arrestee to custody until arraignment. Arrestees often
"voluntarily" waive their right to counsel while awaiting
arraignment. Also, it is arguably permissible for officers to deliberately
violate Miranda in order to obtain confessions which can be used for
further investigation and impeachment if the defendant testifies. |
|
Recommendation 4: Custodial interrogations
of a suspect in a homicide case occurring at a police facility should be
videotaped. Videotaping should not include merely the statement made by
the suspect after interrogation, but the entire interrogation process.
(Dissent) |
NOT MET |
No requirement under current California
law. Video taping is common but not required. Also, it is common to video
tape only after preliminary discussions with the defendant have taken
place. |
|
Recommendation 5: Any statements by a
homicide suspect which are not recorded should be repeated to the suspect
on tape, and his or her comments recorded. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 6: There are circumstances
in which videotaping may not be practical, and some uniform method of
recording such interrogations, such as tape recording, should be
established. Police investigators should carry tape recorders for use when
interviewing suspects in homicide cases outside the station, and all such
interviews should be audiotaped. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 7: The [state eavesdropping
act] should be amended to permit police taping of statements without the
suspects' knowledge or consent in order to enable the videotaping and
audio taping of statements as recommended by the Commission. The amendment
should apply only to homicide cases, where the suspect is aware that the
person asking the question is a police officer. |
NOT MET |
California Penal Code Section 633 allows a
blanket exception to the California "eavesdropping statutes" for
law enforcement personnel or anyone acting at their direction. Therefore,
there is no restriction, as recommended, that the suspect be aware that
s/he is talking with a police officer or that, in fact, the person be a
police officer. |
|
Recommendation 8: The police should
electronically record interviews conducted of significant witnesses in
homicide cases where it is reasonably foreseeable that their testimony may
be challenged at trial |
NOT MET |
No requirement under current law. |
|
Recommendation 9: Police should be required
to make a reasonable attempt to determine the suspect's mental capacity
before interrogation, and if a suspect is determined to be mentally
retarded, the police should be limited to asking nonleading questions and
prohibited from implying they believe the suspect is guilty. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 10: When practicable, police
departments should insure that the person who conducts the lineup or
photospread should not be aware of which member of the lineup or photo
spread is the suspect (dissent) |
NOT MET |
No requirement under current California
law. In practice, to the contrary, the investigating officers usually
conduct the identification procedures. |
|
Recommendation 11: (A) Eyewitnesses should
be told explicitly that the suspected perpetrator might not be in the the
lineup or photospread, and therefore they should not feel they must make
an identification; (B) Eyewitnesses should also be told that they should
not assume that the person administering the lineup or photospread knows
which person is the suspect in the case. |
NOT MET |
No requirement under current California
law. A version of (a) is often given (but not required), however, (b) is
not. |
|
Recommendation 12: If the administrator of
the lineup or photospread does not know who the suspect is, a sequential
procedure should be used, so that the eyewitness views only one lineup
member or photo at a time and makes a decision (that is the perpetrator or
that is not the perpetrator) regarding each person before viewing another
lineup member or photo. (Dissent - too awkward) |
NOT MET |
No requirement under current California
law. |
|
Recommendation 13: Suspects should not
stand out in the lineup or photo spread as being different from the
distractors, based on the eyewitnesses previous description of the
perpetrator, or based on other factors that would draw attention to the
suspect |
NOT MET |
No requirement under current California
law. Current case law may require suppression at trial of an unduly
suggestive line-up or photo spread. However, the specifics of this
recommendation are not met. Also, research shows that a false
identification at an improper line-up or photo spread can significantly
contaminate the identifying witnesses’ testimony. See, Wells, et al., Eyewitness
Identification Procedure, 22 Law and Human Behavior 1 (1998). |
|
Recommendation 14: A clear written
statement should be made of any statements made by the eyewitness at the
time of the identification procedure as to his or her confidence that the
identified person is or is not the actual culprit. This statement should
be recorded prior to any feedback by law enforcement personnel |
NOT MET |
No requirement under current California
law. (See comment on contamination above) |
|
Recommendation 15: When practicable, the
police should videotape lineup procedures, including the witness'
confidence statement. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 16: All police who work on
homicide cases should receive periodic training in the following areas and
experts on these subjects should be retained to conduct training and
prepare manuals on these topics: (1) The risks of false testimony by
in-custody informants ("jailhouse snitches"); (2) The risks of
false testimony by accomplice witnesses; (3) The dangers of tunnel vision
or confirmatory bias; (4) The risks of wrongful convictions in homicide
cases; (5) Police investigative and interrogation methods; (6) Police
investigating and reporting of exculpatory evidence; (7) Forensic
evidence; and (8) The risks of false confessions. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 17 Police academies,
police agencies, and the [department of corrections] should include within
their training curricula information on consular rights and the
notification obligations to be followed during the arrest and detention of
foreign nationals. |
NOT MET |
No requirement under current California
law. There may be some training on this issue but it is not mandatory nor
is it universal. |
|
Recommendation 18: The [state attorney
general] should remind all law enforcement agencies of their notification
obligations under the Vienna Convention on Consular Relations and
undertake regular reviews of the measures taken by state and local police
to ensure full compliance. This could include publication of a guide based
on the United States State Department Manual. |
NOT MET |
California Penal Code Section 834(c) now
requires advisement of rights under the VCCR. It is unknown how much
discussion of this issue has occurred or the extent to which it has
reached the officers and detectives working the actual cases. There is no
requirement of regular reviews to ensure full compliance. |
|
Recommendation 19: The statue relating to
the [state law enforcement training standards board] should be amended to
add police perjury (regardless of whether there is a criminal conviction)
as a basis upon which the Board may revoke certification of a peace
officer |
NOT MET |
No requirement under current California
law. |
|
Recommendation 20: An independent state
forensic laboratory should be created, operated by civilian personnel with
its own budget separate from any policy agency or supervision. (Dissent:
cost & not a strong enough measure) |
NOT MET |
No requirement under current California
law. The State of California does have a State Department of Justice
Forensic Laboratory within its Division of Law Enforcement. It is not
independent as contemplated by the recommendation and is used selectively
by law enforcement. It is not available for use by the defense, even on
court order. |
|
Recommendation 21: Adequate funding should
be provided by the [state] to hire and train both entry level and
supervisory level forensic scientists to support expansion of DNA testing
and evaluation Support should also be provided for additional up-to-date
facilities for DNA testing The state should be prepared to outsource by
sending evidence to private companies for analysis when appropriate |
NOT MET |
No requirement under current California
law. Some funding and outsourcing is available but not within the
contemplation of the recommendation. |
|
Recommendation 22: The commission supports
the [state supreme court rule] establish minimum standards for DNA
evidence. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 23: The federal government
and state should provide adequate funding to enable the development of a
comprehensive DNA database |
NOT MET |
No requirement under current federal or
state law. The proposed Innocence Protection Act has not been enacted. |
|
Recommendation 24: State Statutes should be
amended to provide that in a capital case a defendant may apply to the
court for an order to obtain a search of the DNA database to identify
others who may be guilty of the crime. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 25: In capital cases
forensic testing, including DNA testing pursuant to state law, should be
permitted where it has a scientific potential to produce new,
noncummulative evidence relevant to the defendant's assertion of actual
innocence even though the results may not completely exonerate the
defendant. |
NOT MET |
No requirement under current California
law. California Penal Code Sections 1405 and 1054.9(e), effective January
1, 2003, address some of the issues in this recommendation. |
|
Recommendation 26: The provisions governing
the capital litigation trust fund should be construed broadly so as to
provide a source of funding for forensic testing pursuant to state law
when the defendant faces the possibility of a capital sentence. |
MET WITH QUALIFICATIONS |
California Penal Code Section 987.9
provides for the funds for capital defense at the trial level in cases
where the defendant can show indigence. Individual trial court judges have
wide discretion to grant or deny particular requests. Furthermore, funds
available on direct appeal and habeas corpus proceedings are limited and
are not sufficient for expensive procedures or complex cases |
|
Recommendation 27: The current list of 20
eligibility factors should be reduced to a smaller number |
NOT MET |
California currently has a list of 25
separate eligibility factors under California Penal Code Section 190.2 and
the additional sections referred to in 190.3, many of which have subparts. |
|
Recommendation 28: There should be only
five eligibility factors [murdering multiple victims, killing a police
officer or firefighter, killing an officer or inmate in a correctional
institution, murdering to obstruct justice or torturing the victim. |
NOT MET |
See Comment above. |
|
Recommendation 29: The [state attorney
general] and the [state's prosecutor association] should adopt
recommendations as to the procedures [prosecutors] should follow in
deciding whether or not to seek the death penalty, but these
recommendations should not have the force of law, or be imposed by court
rule or legislation. |
NOT MET |
There is great disparity in the filing
decisions from county to county in California, thus giving rise to a
serious geographical denial of equal protection. |
|
Recommendation 30: The death sentencing
statute should be revised to include a mandatory review of death
eligibility undertaken by a statewide review committee. In the absence of
legislative action to make this a mandatory scheme, the Governor should
make a commitment to setting up a voluntary review process, supported by
the presumption that the Governor will commute the death sentences of
defendants when the prosecutor has not participated in the voluntary
review process, unless the prosecutor can offer a compelling explanation,
based on exception circumstances, for the failure to submit the case for
review.. . . [Dissent: recommendation goes too far] |
NOT MET |
No requirement under current California
law. |
|
Recommendation 31: The Commission supports
[Illinois] Supreme Court Rule 416(c) requiring that the state announce its
intention to seek the death penalty, and the factor to be relied upon, as
soon as practicable but in no event later than 120 days after arraignment. |
NOT MET |
No requirement under current California
law. The death penalty itself can be elected at almost any time by the
prosecutor and, even after initially declining, the prosecutor can decide
to pursue it. There is a requirement that the prosecution disclose
aggravating evidence within a "reasonable time" prior to trial
under California Penal Code Section 190.3 but no requirement of announcing
intention to seek the death penalty at a particular time or to announce
the factors to be relied upon. |
|
Recommendation 32: The [state supreme
court] should give consideration to encouraging the [state administrative
office of the courts] to undertake a concerted effort to educate trial
judges throughout the state in the parameters of the capital crimes
litigation act and the funding sources available for defense of capital
cases. |
NOT MET |
No requirement under current California law
although there is non-mandatory judicial education. |
|
Recommendation 33: Expanded judicial
training to be required prior to assignment of a capital case to a judge. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 34: In light of the changes
in the Illinois Supreme Court rules governing the discovery procedures
capital cases, the Supreme Court should give consideration to ways the
Court can insure that particularized training is provided to trial judges
with respect to implementation of the new rules governing capital
litigation, especially with respect to the management of the discovery
process. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 35: All judges who are
trying capital cases should receive periodic training in the following
areas and experts on these subjects should be retained to conduct training
and prepare manuals on these topics: (1) The risks of false testimony by
in-custody informants ("jailhouse snitches"); (2) The risks of
false testimony by accomplice witnesses; (3) The dangers of tunnel vision
or confirmatory bias; (4) The risks of wrongful convictions in homicide
cases' (5) Police investigative and interrogation methods; (6) Police
investigating and reporting of exculpatory evidence; (7) Forensic
evidence; and (8) The risks of false confessions. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 36: The Illinois Supreme
Court and the Administrative office of the courts should consider
development of and provide sufficient funding for state-wide materials to
train judges in capital cases, and additional staff to provide research
support. |
NOT MET |
No requirement under current California
law. California has some resources but training is not mandatory and does
not meet the recommendations. |
|
Recommendation 37: The Illinois Supreme
Court should consider ways in which information regarding relevant law and
other resources can be widely disseminated to those trying capital cases,
through development of a digest of applicable law by the Supreme Court and
wider publican of the outline of issues developed by the State Appellate
Defender or the State Appellate Prosecutor and/or Attorney General |
NOT MET |
No requirement under current California
law. |
|
Recommendation 38: The Illinois Supreme
Court, or the chief judge of the various judicial districts throughout the
state, should consider implementation of a process to certify judges who
are qualified to hear capital cases either by virtue of experience or
training. Trial court judges should be certified as qualified to hear
capital cases based upon completion of specialized training and based upon
their experience in hearing criminal cases. Only such certified judges
should hear capital cases. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 39: The [state supreme
court] should consider appointment of a standing committee of trial judges
and/or appellate justices familiar with capital cases management to
provide resources to trial judges throughout the state who are responsible
for trying capital cases. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 40: The commission supports
new Illinois Supreme Court Rule 416(d) regarding qualifications for
counsel in capital cases. |
NOT MET |
No requirement under current California law
regarding minimum qualifications for retained counsel. There are minimum
requirements for appointed counsel at trial (California Rule of Court
76.6) and on direct appeal and habeas corpus (California Rule of Court
4.117) but these do not apply to retained counsel. |
|
Recommendation 41: The Commission supports
new Illinois Supreme Court Rule 701(b) which imposes the requirement
that those appearing as lead or co-counsel in a capital case be first
admitted to the Capital Litigation Bar under Rule 714. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 42: The commission supports
new Illinois Supreme Court rule 714 which imposes requirements on the
qualifications of attorneys handling capital cases. |
NOT MET |
No requirement under current California law
regarding minimum qualifications for retained counsel. There are minimum
requirements for appointed counsel at trial (California Rule of Court
76.6) and on direct appeal and habeas corpus (California Rule of Court
4.117) but these do not apply to retained counsel. |
|
Recommendation 43: The office of the State
Appellate Defender should facilitate the dissemination of information with
respect to defense counsel qualified under the proposed Supreme Court
process. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 44:The commission supports
efforts to have training for prosecutors and defenders in capital
litigation, and to have funding provided to insure that training programs
continue to be of the highest quality. |
NOT MET |
No requirement under current California
law, particularly for public funding. Limited programs in recent years
have been funded and put on by the Habeas Corpus Resource Center. Private
organizations, The California Public Defender’s Association and the
California Attorneys for Criminal Justice, hold more extensive training
sessions which are available to capital case defense lawyers. |
|
Recommendation 45: All prosecutors and
defense lawyers who are members of the Capital Trial Bar who are trying
capital cases should receive periodic training in the following areas and
experts on these subjects should be retained to conduct training and
prepare manuals on these topics: (1) The risks of false testimony by
in-custody informants ("jailhouse snitches"); (2) The risks of
false testimony by accomplice witnesses; (3) The dangers of tunnel vision
or confirmatory bias; (4) The risks of wrongful convictions in homicide
cases; (5) Police investigative and interrogation methods; (6) Police
investigating and reporting of exculpatory evidence; (7) Forensic
evidence; and (8) The risks of false confessions. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 46: The Commission supports
new Illinois Supreme Court rule 416(e) which permits discovery deposition
in capital cases on leave of the court for good cause |
NOT MET |
No requirement under current California
law. |
|
Recommendation 47: The Commission supports
the provisions of the new Illinois Supreme Court rule 416(f) mandating
case management conferences in capital cases. The Illinois Supreme Court
should consider adoption of a rule requiring a final case management
conferences in capital cases to insure that there has been compliance with
the newly mandated rules, that discovery is complete and that the case is
fully prepared for trial. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 48: The Commission supports
Illinois Supreme Court Rule 416(g) which requires that a certificate be
filed by the state indicating that a conference has been held with all
those persons who participated in the investigation or trial preparation
of the case and that all the information required to be disclosed has been
disclosed. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 49: The Illinois Supreme
Court should adopt a rule defining "exculpatory evidence" in
order to provide guidance to counsel in making appropriate disclosures.
The commission recommends the following definition: "Exculpatory
information includes, but may not be limited, to all information that is
material and favorable to the defendant because it tends to: (1) cast
doubt on defendant's guilt as to any essential element in any count in the
indictment or information; (2) cast doubt on the admissibility of evidence
that the state anticipates offering in its case-in-chief that might be
subject to a motion to suppress or exclude; (3) cast doubt on the
credibility or accuracy of any evidence that the state anticipates
offering in its case-in-chief; or (4) diminishes the degree of the
defendant's culpability or mitigate the defendant's potential sentence. |
NOT MET |
No requirement under current California
law. There is case law, both federal and state, on exculpatory evidence
but no statute or rule implementing the broad definition contained in the
recommendation requiring disclosure. |
|
Recommendation 50: Illinois law should
require that any discussion with a witness or a representative of a
witness concerning benefits, potential benefits or detriments conferred on
a witness by any prosecutor, police official, or anyone else, should be
reduced to writing, and should be disclosed to the defense in advance of
trial. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 51: Whenever the state
introduces the testimony of an in-custody informant who has agreed to
testify for the prosecution in a capital case to a statement allegedly
made by the defendant, at either the guilt or sentencing phase, the state
should promptly inform the defense as to the identification and background
of the witness. |
NOT MET |
Disclosure is governed by federal law, e.g.,
Brady v. Maryland 373 U.S. 83 (1963), and by California Penal Code
Section 1054.1. Neither the timing nor the extent of disclosure as
recommended is required under current California law. |
|
Recommendation 52: (A) Prior to trial, the
trial judge shall hold an evidentiary hearing to determine the reliability
and admissibility of the in-custody informant's testimony at either the
guilt or sentencing phase; (B) at the pre-evidentiary hearing, the trial
judge shall use the following standards: (1) the specific statements to
which the witness will testify; (2) the time and place, and other
circumstances of the alleged statements; (3) any deal or inducement made
by the informant and the police or prosecutor in exchange for the witness'
testimony; (4) the criminal history of the witness; (5) whether the
witness has ever recanted his/her testimony; (6) other cases in which the
witness testified to alleged confessions by others; (7) any other evidence
that may attest to or diminish the credibility of the witness, including
the presence or absence of any relationship between the accused and the
witness. |
NOT MET |
California Evidence Code Section 402
provides for an in limine hearing on the admissibility of evidence.
However, current California law does not require the court to consider the
criteria set forth. |
|
Recommendation 53: In capital cases courts
should closely scrutinize any tactic that misleads the suspect as to the
strength of the evidence against him/her, or the likelihood of his/her
guilt, in order to determine whether this tactic would be likely to
introduce an involuntary or untrustworthy confession. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 54: The commission makes no
recommendation about whether or not plea negotiations should be restricted
with respect to the death penalty. |
NOT MET |
While the Commission could not come to a
specific recommendation on restrictions on coercive plea bargaining, it
did so in the context of its other recommendations being adopted. First,
there are no restrictions on coercive plea bargaining in California of the
sort contemplated in the Report; second, the failure to make specific
recommendations was premised specifically on the prior recommendations
that a) the eligibility factors be limited to five (there are at least 25
under California law) and (b) there be a review process on the selection
of cases for death. Therefore, California fails to meet these criteria and
is susceptible to the abuse of coercive plea bargaining addressed in this
section of the Report. |
|
Recommendation 55: Expert testimony with
respect to the problem associated with eyewitness testimony may be helpful
in appropriate cases. Determination as to whether such evidence may be
admitted should be resolved by the trial judge on a case by case basis. |
Constitutionally Required |
No requirement under current California
statutory law. Seemingly required by the Sixth and Fourteenth Amendments
and California case law. |
|
Recommendation 56: Jury instructions with
respect to eyewitness testimony should enumerate factors for the jury to
consider, including the difficulty of making a cross-racial
identification. The [model jury instructions] should also be amended to
add a final sentence which states as follows: Eyewitness testimony should
be carefully examined in light of other evidence in the case. |
NOT MET |
No requirement under current California
law. California Jury Instructions - Criminal (CALJIC) 2.92 does contain
some criteria for evaluating eyewitness identifications. It is not
required to be given sua sponte, it is limited to cases where there
is "no substantial corroborative evidence" and it does not
contain the cautionary admonition. |
|
Recommendation 57: The [state committee on
pattern criminal jury instructions] should consider a jury instruction
providing special caution with respect to the reliability of the testimony
of in-custody informants |
NOT MET |
No requirement under current California
law. |
|
Recommendation 58: Special jury instruction
for when a confession is not recorded |
NOT MET |
No requirement under current California
law. |
|
Recommendation 59: Illinois courts should
continue to reject the results of polygraph examination during the
innocence/guilt phase of capital trials. |
MET |
Seemingly required by the Sixth and
Fourteenth Amendments, however, there is some dispute in other states and
California case law does meet this requirement. |
|
Recommendation 60: The commission supports
the new amendments to [Illinois Supreme Court Rule 611] which makes the
rules of discovery applicable to the sentencing phase of capital cases. |
MET WITH QUALIFICATIONS |
California Penal Code Section 190.3
requires discovery to be provided to the defense, however, the timing and
detail of the Illinois Rule is more favorable to the defense |
|
Recommendation 61: The mitigating factors
considered by the jury in the death penalty sentencing scheme should be
expanded to include the defendant's history of extreme emotional or
physical abuse and that the defendant suffers from reduced mental
capacity. |
NOT MET |
California Penal Code Section 190.3 (d) and
(h) present mental health issues to the jury, however, there is no
provision to specifically include the "defendant’s history of
extreme emotional or physical abuse." Section 190.3 (k) is a catch
all provision required under the federal Constitution, e.g., Lockett v.
Ohio (1978) 438 U.S. 586 , to cover other mitigating evidence. To the
extent that this recommendation goes beyond that which is required by the
federal Constitution, it is not met. |
|
Recommendation 62: The defendant should
have the right to make a statement on his own behalf during the
aggravation/mitigation phase without being subject to cross-examination. |
NOT MET |
There is no right to allocution under
current California law. |
|
Recommendation 63: The jury should be
instructed as to the alternative sentences that may be imposed in the
event that the death penalty is not imposed. |
Constitutionally Required |
This recommendation follows the federal
requirement under Kelley v. South Carolina (2002) 534 U.S.
246 . |
|
Recommendation 64: [The state courts]
should continue to reject the results of polygraph examinations during the
sentencing phase of capital trials |
MET |
California case law still prohibits the
introduction of polygraph results at sentencing. |
|
Recommendation 65: The statute which
establishes the method by which the jury should arrive at its sentence
should be amended to include language . . . to make it clear that the jury
should weigh factors in the case and reach its own independent conclusion
about whether the death penalty should be imposed. The statute should be
amended to read as follows: "If the jury unanimously, after weighing
the factors in aggravation and mitigation, that death is the appropriate
sentence..." |
MET |
California CALJIC 8.88 says, "To
return a judgment of death, each of you must be persuaded that the
aggravating circumstances are so substantial in comparison with the
mitigating circumstances that it warrants death instead of life without
parole." The term "unanimously" is not used but unanimity
is required by this instruction. |
|
Recommendation 66: After the jury renders
its judgment with respect to the imposition of the death penalty, the
trial judge should be required to indicate on the record whether he or she
concurs in the result. In cases where the trial judge does not concur in
the imposition of the death penalty, the defendant shall be sentenced to
natural life as a mandatory alternative (assuming the adoption of a new
death penalty scheme limited to five eligibility factors). |
NOT MET |
California Penal Code Section 190.4(e)
requires the trial judge to reweigh the evidence presented to the penalty
phase jury. However, the judge decides whether the verdict is contrary to
the law or the evidence. This standard is more liberal than that applied
at a motion for new trial but is not the same as asking whether or not the
judge concurs in the verdict of death. |
|
Recommendation 67: In any case approved for
capital punishment under the new death penalty scheme with five
eligibility factors, if the finder of fact determines that death is not
the appropriate sentence than the mandatory alternative sentence would be
natural life. (dissent) |
NOT MET |
After a finding of special circumstances in
California, the two sentencing options are death or life without
possibility of parole. However, the recommendation of "natural
life" in Illinois would be limited to the five eligibility factors
whereas there are over 25 under Penal Code Section 190.2 and the sections
referred to in 190.3. |
|
Recommendation 68: [The state] should adopt
a statute which prohibits the imposition of the death penalty for those
defendants found to be mentally retarded. The best model to follow in
terms of specific language is that found in the Tennessee statute. |
Constitutionally Required |
Following the United States Supreme Court’s
decision in Atkins v. Virginia 536 U.S. 304 (2002), this result is
Constitutionally mandated in every state. |
|
Recommendation 69: [The state] should adopt
a statute which provides: [a] the uncorroborated testimony of an
in-custody informant witness concerning the confession or admission of the
defendant may not be the sole basis for the imposition of the death
penalty; [b] convictions for murder based upon the testimony of a single
eyewitness or accomplice without any other corroboration, should not be
death eligible under any circumstances. |
NOT MET |
No requirement under current California
law. |
|
Recommendation 70: In capital cases the
[state Supreme Court] should consider on direct appeal (1) whether the
sentence was imposed due to some arbitrary factor, (2) whether an
independent weighing of the aggravating and mitigating circumstances
indicates death was the proper sentence, and (3) whether the sentence of
death was excessive or disproportionate to the penalty imposed in similar
cases. (dissent) |
NOT MET |
No requirement under current California law
to do a proportionality review. There is an independent weighing of sorts
by the trial judge under Penal Code Section 190.4(e), however, this
recommendation for the Supreme Court to reweigh is intended to be in
addition to the trial court’s concurrence, neither of which exist in
California. |
|
Recommendation 71: Rule 3.8 of the Illinois
Supreme Court Rules of Professional Conduct [ABA Model Rule 3.9], Special
Responsibilities of a Prosecutor, should be amended in paragraph (c) by
the addition of [language concerning the ongoing duty to turn over
exculpatory information], |
NOT MET |
There are no special rules of professional
conduct promulgated by the California Supreme Court for prosecutors. Case
law, both state and federal, suggests that prosecutors are held to higher
standards. California Penal Code Sections 1054.9(a) and (b) were added,
effective January 1, 2003, permitting post-conviction discovery upon
request and a showing of good cause. However, there is no rule creating an
ethical, on-going duty upon the prosecution to turn over excuplatory
information. |
|
Recommendation 72: The Post-Conviction
Hearing Act should be amended to provide that a petition for a
post-conviction proceeding in a capital case should be filed within 6
months after the issuance of the mandate by the supreme court following
affirmance of the direct appeal from the trial. |
NOT MET |
The Illinois Commission recommends that the
time for filing a post-conviction petition, which would be a Petition for
Writ of Habeas Corpus in California, be after the direct appeal is
concluded. The California Supreme Court Policy 3 1-1.1 specifically
requires that the Petition be filed 180 days after the Reply Brief is due
on direct appeal. This requirement was just increased to 180 days from 90
days, however, the practical effect is still to require the filing of the
Petition before the direct appeal is concluded. |
|
Recommendation 73: The Illinois
Post-Conviction Hearing Act should be amended to provide that in capital
cases, the trial court should convene the evidentiary hearing on the
petition within one year of the date the petition is filed. |
NOT MET |
There is no time period under current
California law and, more importantly, no requirement of an evidentiary
hearing at all. |
|
Recommendation 74: The Post-Conviction
Hearing Act should be amended to provide that in capital cases, a
proceeding may be initiated in cases in which there is newly discovered
evidence which offers a substantial basis to believe that the defendant is
actually innocent, and such proceedings should be available at any time
following the defendant's conviction regardless of other provisions of the
Act limiting the time within such proceedings can be initiated. In order
to prevent frivolous petitions, the Act should provide that in proceedings
asserting a claim of actual innocence, the court may make an initial
determination with or without a hearing that the claim is frivolous. |
NOT MET |
There is no requirement under current
California law. A Petition for Writ of Coram Nobis (or Vobis) may be filed
under common law but is disfavored by the courts. Bars to successive
litigation effectively defeat the recommendation's purpose. |
|
Recommendation 75: [State] law should
provide that after all appeals have been exhausted and the Attorney
General applies for a final execution date for the defendant, a clemency
petition may not be filed later than 30 days after the date [after the
setting of] an execution date. |
NOT MET |
The California Constitution, Article 8,
Section V, has been interpreted to provide the Governor with the power to
grant clemency in death penalty cases. California Penal Code Sections 4800
et seq. Set forth procedures primarily for non-death cases. The
procedure is almost entirely discretionary. |
|
Recommendation 76: Leaders in both the
executive and legislative branches should significantly improve the
resources available to the criminal justice system in order to permit the
meaningful implementation of reforms in capital cases. |
NOT MET |
Some attention is being given to capital
case litigation by the legislative and executive branches but actual
reforms are not being implemented as contemplated by the Illinois
Commission. |
|
Recommendation 77: The Capital Crimes
Litigation Act, which is the state statute containing the Capital
Litigation Trust Fund and other provisions, should be reauthorized by the
general assembly. |
Not Applicable |
Although California does not have such an
Act and, it could be argued, California does not meet this recommendation.
On the other hand, this is arguably peculiar to Illinois and, therefore,
will be deemed inapplicable. |
|
Recommendation 78: The Commission supports
the concept articulated in the statute governing the Capital Litigation
Trust Fund, that adequate compensation be provided to trial counsel in
capital cases for both time and expense, and encourages regular
consideration of the hourly rates authorized under the statute to reflect
the actual market rates of private attorneys. |
NOT MET |
Hourly rates for appointed counsel at the
trial and appellate levels are far below the rates earned by competent
private criminal defense counsel. Furthermore, the courts, and in
particular the California Supreme Court, routinely reduce the number of
hours for which they will provide compensation resulting in substantial
underpayment of counsel. |
|
Recommendation 79: The provisions of the
Capital Litigation Trust Fund should be construed as broadly as possible
to insure that public defenders, particularly those in rural parts of the
state, can effectively use its provisions to secure additional counsel and
reimbursements of all reasonable trial related expenses in capital cases. |
NOT MET |
There is no requirement in current
California law that there not be a disparity between areas within the
state. California Penal Code Section 987.9 does provide a basis for an
application by public defenders throughout the state for experts,
investigators and others, including second counsel. However, there is no
provision to accommodate other trial related expenses which might place a
significant burden on small or rural public defender offices. In addition,
the application for these funds, to a certain extent, is subject to the
discretion of the local judges. |
|
Recommendation 80: The work of the State
Appellate Defender's office in providing statewide trial support in
capital cases should continue, and funds should be appropriate for this
purpose. |
NOT MET |
The California State Public Defender’s
Office and CAP are both understaffed and underfunded. Despite that fact
they both do an outstanding job of assisting other capital counsel.
However, their efforts are largely focused on appointed appellate and
habeas counsel leaving support and education to largely privately funded
organizations such as CPDA and CACJ. |
|
Recommendation 81: The Commission supports
the recommendation in the Report of the Task Force on Professional
Practice in the Illinois justice system to reduce the burden of student
loans on those entering criminal justice careers and improve salary levels
and pensions contributions for those in the system in order to insure
qualified counsel (dissent) |
NOT MET |
Under current California law, public
defenders and prosecutors receive some assistance on student loans.
Private lawyers, who bear the burden of a large part of the capital
litigation in California, receive no assistance. |
|
Recommendation 82: Adequate funding should
be provided by the [state] to all [state] police agencies to pay for the
electronic recording equipment, personnel and facilities needed to conduct
electronic recordings in homicide cases. |
NOT MET |
Police agencies receive state money in
various forms but none is earmarked specifically for these purposes (to
the knowledge of this writer). |
|
Recommendation 83: The Commission strongly
urges consideration of ways to broaden the application of many of the
recommendations made by the commission to improve the criminal justice
system as a whole. (dissent) |
NOT MET |
California law does not meet the
recommendations regarding capital cases and, therefore, there is no
attempt to broaden the application of such recommendations to non-capital
cases. |
|
Recommendation 84: Information should be
collected at the trial level with respect to prosecutions of first degree
murder cases, by trial judges, which would detail information that could
prove valuable in assessing whether the death penalty is, in fact, being
fairly applied. Data should be collected on a form which provides details
about the trial, the background of the defendant, and the basis for the
sentence imposed. The forms should be collected by the [state's
administrative office of the courts] and the form from an individual case
should not be a public record. Data collected from the forms should be
public and should be maintained in a public access database by the
criminal justice information authority. |
NOT MET |
Some data is collected but (to the
knowledge of this writer) no systematic collection of data on the details
of capital cases is or has been conducted. |
|
Recommendation 85: Judges should be
reminded of their obligation under Canon 3 to report violations of the
Rules of Professional Conduct by prosecutors and defense lawyers.
(Dissent) |
NOT MET |
Cannon D(2) of the California Code of
Judicial Ethics suggests that a judge has an ethical duty to "take
appropriate corrective action" if the judge has personal knowledge
that a lawyer has committed a violation of the Rules of Professional
Conduct. There is no duty to report the violations to the State Bar or to
take any other specific action unless a defense lawyer has been found to
have provided ineffective assistance of counsel. There is no similar
provision pertaining to prosecutors. |
|
Overall rate |
NOT MET 76
MET 3
MET W/ QUAL 2
CONST REQ 3
N/A 1
Compliance 5 out of 81 = 6.17%
|
|
