Criminal Appeal

Local Angle on Filibuster Deal. The deal reached tonight by moderate dem and republican senators (How Appealing post) will allow a senate floor vote on the nomination to the D.C. Circuit of Associate Justice Janice Rogers Brown of the California Supreme Court. Read a PDF copy of the deal here. (Link from Daily Kos.) You can find commentary on the filibuster deal at TalkLeft, Daily Kos (here and here), Instapundit, and, I'm sure, many other places tonight and tomorrow.

It seems to be a foregone conclusion that Justice Brown will soon be a D.C. Circuit Judge. (Although, as noted in a comment on Kevin Drum's blog, "Lindsey Graham claims that of the three who will get votes (Brown, Owen, and Pryor), one will end up getting defeated on a bipartisan basis.") Until the Commission on Judicial Appointments approves a replacement for Justice Brown, Chief Justice George will have the authority to appoint pro tem justices. It seem likely that he'll do what he did when Justice Mosk died, which was to appoint a series of Court of Appeal justices to hear individual cases. (See here.)

So who would the governor name to replace Justice Brown? A recent Recorder article (subscription required) mentioned several California Court of Appeal Justices including Presiding Justice Arthur Scotland (3d Dist.), Justice Vance Raye (3d Dist.), Justice Carol Corrigan (1st Dist.), and Justice Candace Cooper (2d Dist.).

According to the Recorder story, Professor Barnett suggests an outsider would be best for the Court:

Boalt Hall School of Law professor Stephen Barnett wants Schwarzenegger to "blow up government boxes" and appoint "an outsider to the court."

"Presumably it would be somebody less conservative than [Brown], and move the court the left," he said. "I've always thought the California appellate courts are too ingrown and too much composed of judges who have come up through the California judicial system."

If Justice Brown is in fact confirmed, in a future post I'll try to summarize the profiles of the six remaining justices to give an idea of what an outsider wouldn't look like.

For a Cal. Supreme Court appointment, the Commission on Judicial Appointments consists of Chief Justice George, the Attorney General, and the senior presiding justice, statewide, of the Courts of Appeal.  It appears that that third member would be Justice Joan Dempsey Klein (2d Dist., Div. 3), who played that rule when Justice Moreno replaced Justice Mosk.  As she's still a sitting presiding justice, she must still be the most senior presding justice, statewide.

New Cal. Court of Appeal Justice: The Commission on Judicial Appointments has confirmed the appointment of Judge Wendy Clark Duffy, of the Superior Court of Monterey County, to be an associate justice in the Sixth Appellate District.  The Court now has a full complement of six associate justices and one presiding justice.

Justice Duffy is a former deputy district attorney, which makes here the fourth member of this seven-justice court that has criminal prosecutorial experience either as a deputy district attorney (Justices Elia and Bamattre-Manoukian) or as a former deputy attorney general (Justices Elia and Mihara).

None of the seven justices in the Sixth District appear to have trial or appellate experience representing criminal defendants.

Late May & Early June Cal. Supreme Court Arguments. Calendars (actually amended calendars) are out for upcoming Cal. Supreme Court arguments. Click the date/city links below for the complete calendars which show dates and times and descriptions for all of the cases on the calendars. There are a few criminal and appellate procedure cases on the calendars:

May 24, 25, 26 (San Francisco):

People v. Carter, nos. S014021 &  S023000; People v. Blair, no. S011636; People v. Gray, no. S104664 (Automatic Appeals in Capital Cases);

People v. Martinez, no. S118180 (can the Department of Toxic Substance Control, which cleaned up a meth site, be considered a victim for purposes of restitution);

In re Josiah Z., no. S125822  (authority of appellate counsel for a minor to abandon the minor's appeal in a child dependency case); 

In re Roberts, no. S112505 (should habeas challenging Board of Prison Terms decision be filed in county of sentencing or county of incarceration)

May 31, June 1, June 2 (L.A.)

People v. Schmeck, no. S015008,  People v. Dunkle, no. S014200, People v. Moon, no. S021054, People v. Harris, no. S058092, People v. Cornwell, no. S046176 (Automatic Appeals in Capital Cases)

People v. Garcia, no. S124003 ("When the jury has visited the crime scene during the  presentation of evidence at trial and then asks to revisit the crime scene during  deliberations, do defendant and his or her counsel have the right, upon request, to be  present at the jury’s revisit to the crime scene?)

That's right, there are a total of eight capital cases on the two calendars.

May Ninth Circuit Motions and Screening Panel: Kozinski, Hawkins and Clifton

Congress v. Article III Judges, the AEDPA Version.  As many readers know already, a Ninth Circuit merits panel issued an order on May 4, 2005, in Irons v. Carey, no. 05-15275, directing the parties to address at oral argument whether the AEDPA standard of review for state prisoner habeas claims is unconsitutional in that it limits the sources of law the judicial branch must use in exercising its jurisdiction. Judges Reinhardt and Noonan joined the order; Judge Fernandez did not. The next day the state asked the court to continue the May 11 oral argument to permit supplemental briefing. On May 7, the court, in an order joined again by Judges Reinhardt and Noonan but not Fernandez, denied that request and explained that any briefing would be post-argument, as described in this PACER docket excerpt of the order:

The parties were requested by our earlier order to give indication of their views re the AEDPA question. Should the court determine following argument that the constitutional issue should be addressed further, suppl briefing and such other proceedings or procedures as may be appropriate or statutorily required will be ordered.

To date (5/15/05), there's no post-argument order for supplemental briefing. You can, however, find one take on the AEPDA separation of power theory in an amicus brief filed on behalf of several former Article III judge in (Terry) Williams v. Taylor, 529 US 362 (2000). The brief was authored by former D.C. Circuit judge, former Congressman, and former White House counsel, Abner Mikva. The argument is outlined in Section III of that brief (see pp. 25-29), although amicus actually recognizes the question isn't presented by the case and urges the Court to avoid the question. (The Court, in Williams, didn't reach or address the separation of powers argument.)

The oral argument in Irons v. Carey, which you can listen to here (WMA file), was held on May 11, 2005. Appellate attorney Gene Vorobyov has this report on the oral argument at the Appellate Law & Practice blog. Gene notes that "it was fairly clear from the questions to the State that two of the judges (Reinhardt and Noonan) think that AEDPA might violate the separation of powers doctrine by imposing a choice of law on the federal courts in habeas case."

Lyle Denniston has helpful analysis of the issue and background on the case in a post at SCOTUSBlog. (Be sure to read the comments.)

More AEDPA S.O.L. Work for SCOTUS.

On Monday, the Supreme Court granted certiorari in Lamarque v. Chavis, no. 04-721. This is a follow-up from Carey v. Saffold, 536 U.S. 214 (2002), in which the Supreme Court held that the federal habeas statute of limitations is tolled during reasonable periods of time between the denial of a state habeas petition at one level and the filing of the next state habeas petition in a higher court. This is really only about California where the denial of a state habeas petition is not appealable, and there are no firm or clear deadlines for filing a petition in a higher court after a lower court denied the petition. The Ninth Circuit held that the petitioner was entitled to tolling for periods between petitions during each of two rounds of petitions filed, but there was no tolling between the two rounds. (The petitioner twice went through the state courts with habeas petitions.)

According to SCOTUSBlog, the the question presented is:

"Did the Ninth Circuit contravene this Court's decision in Carey v. Saffold [2002] when it held that a prisoner who delayed more than three years before filing a habeas petition with the California Supreme Court did not 'unreasonably' delay in filing the petition -- and therefore was entitled to tolling during that entire period -- because the California Supreme Court summarily denied the petition without comment or citation, which the Ninth Circuit construes as a denial 'on the merits'?"

Chavis was pro per in the Ninth Circuit, but that won't last; the warden already has counsel, Deputy Attorney General Catherine Chatman. The case will be heard next term.

Read the Ninth Circuit's unanimous opinion authored by Judge Betty B. Fletcher here.