• Court Rules California’s New Lethal Injection Procedures are Invalid Superior Court Judge Lynn O’Malley Taylor held that the California Department of Corrections and Rehabilitation failed to fol­low prop­er pro­ce­dure for insti­tut­ing new reg­u­la­tions when it issued new lethal injec­tion pro­to­cols in May. Under state law, an agency that adopts new reg­u­la­tions must first pub­lish the text, invite pub­lic com­ments, hold a hear­ing if a mem­ber of the pub­lic requests one, and sub­mit the final draft to the Office of Administrative Law, which decides whether the pro­posed rule was legal­ly autho­rized. Though the Corrections Department main­tains that the pro­to­cols are not reg­u­la­tions because they apply to a small num­ber of inmates, Taylor dis­agreed, stat­ing ​“The undis­put­ed evi­dence estab­lish­es that (the exe­cu­tion pro­to­col) is a rule or reg­u­la­tion of gen­er­al appli­ca­tion.” Taylor, a retired judge sit­ting by spe­cial assign­ment in the court, also said the pro­to­col ​“imple­ments a statewide pol­i­cy on lethal injec­tions for con­demned inmates,” pre­scribes duties for state offi­cials out­side San Quentin and applies to pris­on­ers at oth­er insti­tu­tions. Taylor’s rul­ing states that the new pro­ce­dures can­not be imple­ment­ed until they go through the reg­u­la­to­ry process. This marks the lat­est chap­ter in a series of lethal injec­tion chal­lenges impact­ing exe­cu­tions in the state. No one has been exe­cut­ed in California since January 2006. In February 2006, U.S. District Judge Jeremy Fogel blocked the exe­cu­tion of Michael Morales. Fogel found there was a chance that a seda­tion drug would not work dur­ing the exe­cu­tion, leav­ing Morales con­scious, par­a­lyzed and in agony while dying. After hear­ing tes­ti­mo­ny from med­ical experts and exe­cu­tion wit­ness­es, Fogel lat­er issued anoth­er rul­ing say­ing he would find that California’s lethal injec­tions vio­late the con­sti­tu­tion­al ban on cru­el and unusu­al pun­ish­ment unless the state over­hauled the exe­cu­tion process. Early next year, the U.S. Supreme Court will con­sid­er a sim­i­lar case out of Kentucky.
    (San Francisco Chronicle, October 31, 2007)
  • California Blue Ribbon Commission Recommends Recording of Interrogations The California Commission on the Fair Administration of Justice has unan­i­mous­ly rec­om­mend­ed that state law­mak­ers require elec­tron­ic record­ing of all jail­house inter­ro­ga­tions. The com­mis­sion added that the law should include a pro­vi­sion stat­ing that if an offi­cer fails to record an inter­ro­ga­tion, jurors would be instruct­ed to view the defen­dan­t’s state­ment with cau­tion. Emphasizing that false con­fes­sions have been iden­ti­fied as the sec­ond most fre­quent cause of wrong­ful con­vic­tions, the com­mis­sion’s report also sug­gest­ed that the leg­is­la­ture pro­vide fund­ing to police depart­ments to imple­ment a pol­i­cy of video­tap­ing inter­ro­ga­tions in felony cas­es. ​“Although it may seem sur­pris­ing that fac­tu­al­ly inno­cent per­sons would false­ly con­fess to the com­mis­sion of seri­ous crimes, the research pro­vides ample evi­dence that this phe­nom­e­non occurs with greater fre­quen­cy than wide­ly assumed,” the com­mis­sion stat­ed. In their report, mem­bers of the com­mis­sion not­ed that taped inter­ro­ga­tions could help pre­vent wrong­ful con­vic­tions and could pro­vide con­sid­er­able ben­e­fits to law enforce­ment, includ­ing pro­tec­tion against claims of mis­con­duct. During a June 2006 hear­ing, two wrong­ful­ly con­vict­ed men, Christopher Ochoa of Texas and Harold Hall of California, tes­ti­fied before the pan­el and explained that a record­ing of their false con­fes­sions could have pre­vent­ed them from going to prison for crimes they did not com­mit. Both men stat­ed that the record­ings would have allowed the judge and jurors in their cas­es to see the coer­cive tech­niques used against them dur­ing their inter­ro­ga­tions. The 18-mem­ber California Commission on the Fair Administration of Justice is a blue rib­bon pan­el head­ed by for­mer California Attorney General John K. Van de Kamp. Among the com­mis­sion’s mem­bers are California Attorney General Bill Lockyer, Los Angeles Police Chief William Bratton, three dis­trict attor­neys, a fed­er­al judge, and a Los Angeles County pub­lic defend­er. (Los Angeles Times, July 26, 2006). See pri­or rec­om­men­da­tions; see Innocence.
  • California Moratorium Bill Gains Broad Support From Law Enforcement, Prosecutors and Judges A group of 40 law enforce­ment offi­cers, cur­rent and for­mer pros­e­cu­tors, and judges at the state and fed­er­al lev­el have urged California law­mak­ers to enact a tem­po­rary halt to exe­cu­tions in the state while a com­mis­sion exam­ines the accu­ra­cy and fair­ness of the death penal­ty. In a let­ter to mem­bers of the California Assembly, the bi-par­ti­san group of death penal­ty sup­port­ers and oppo­nents wrote, “[G]iven that DNA test­ing and oth­er new evi­dence has proven that more than 121 peo­ple who sat on death rows around the coun­try were actu­al­ly inno­cent of the crimes for which they were con­vict­ed, we agree that a tem­po­rary sus­pen­sion of exe­cu­tions in California is nec­es­sary while we ensure, as much as pos­si­ble, that the admin­is­tra­tion of crim­i­nal jus­tice in this state is just, fair, and accu­rate.” The leg­is­la­tion, Assembly Bill 1121, calls for a mora­to­ri­um on exe­cu­tions until January 1, 2009, two years after the new­ly-estab­lished California Commission on the Fair Administration of Justice is set to sub­mit its find­ings to the leg­is­la­ture and Governor. The let­ter not­ed, ​“We believe that it is not only prag­mat­ic, but pru­dent to halt exe­cu­tions until these rec­om­men­da­tions can be ful­ly con­sid­ered and, if nec­es­sary, act­ed upon.” (Letter to the California Assembly in Support of AB 1121, January 9, 2006).
  • California Prosecutors Urge Death Penalty Moratorium As California law­mak­ers con­sid­er leg­is­la­tion that would put exe­cu­tions on hold for two years while a 13-mem­ber com­mis­sion reviews the prob­lem of wrong­ful con­vic­tions in the state, a group of cur­rent and for­mer pros­e­cu­tors have sent mem­bers of the state Assembly a let­ter urg­ing pas­sage of the mea­sure. ​“The exe­cu­tion of an inno­cent per­son is unac­cept­able, and it is imper­a­tive that California takes every pre­cau­tion that it nev­er hap­pens. This is not just a mat­ter of jus­tice for these indi­vid­u­als. It is a mat­ter of pub­lic safe­ty…. If an inno­cent per­son is con­vict­ed, that means that the true per­pe­tra­tor may well still be free to com­mit more crimes,” the pros­e­cu­tors wrote. Among the pro­s­ec­tors sign­ing the let­ter were Donald Heller, who authored the state’s 1978 death penal­ty statute, and Ira Reiner, whose office sent dozens of peo­ple to death row when he was Los Angeles County’s dis­trict attor­ney from 1984 to 1992. Imperial County deputy dis­trict attor­ney John Willis, San Francisco County sher­iff Michael Hennessy, and for­mer California Supreme Court Justice Joseph Grodin also signed the let­ter. Heller not­ed that the California death penal­ty law ​“was writ­ten to pro­vide a fair method.” He added, ​“In prac­tice it has not worked out that way. … There are too many vari­ables law can’t con­trol.” Among Heller’s chief con­cerns is the qual­i­ty of rep­re­sen­ta­tion a cap­i­tal defen­dant receives. Reiner stat­ed, ​“I don’t see any appro­pri­ate argu­ment against a brief mora­to­ri­um on exe­cu­tions while the death penal­ty process in California is exam­ined very care­ful­ly by seri­ous peo­ple. If the state is going to have the moral author­i­ty to take a life, it has to be done when there are no ques­tions about the fair­ness of the tri­al.” California’s Assembly is cur­rent­ly con­sid­er­ing the mora­to­ri­um leg­is­la­tion sup­port­ed by the pros­e­cu­tors. Last year, the state’s law­mak­ers passed leg­is­la­tion to cre­ate the 13-mem­ber California Commission on the Fair Administration of Justice, a group that includes both sup­port­ers and oppo­nents of cap­i­tal pun­ish­ment. (Los Angeles Times, January 10, 2006) See New Voices, Innocence and Recent Legislative Activity.
  • The Santa Clara County Board of Supervisors passed a res­o­lu­tion urg­ing law­mak­ers to halt exe­cu­tions in California until its fair­ness and the risk of exe­cut­ing inno­cent peo­ple are stud­ied. By a 4 – 1 vote, the Board passed the res­o­lu­tion that calls upon the Governor to impose a mora­to­ri­um ​“unless and until dis­crim­i­na­tion on the basis of race, eth­nic­i­ty, nation­al ori­gin or eco­nom­ic sta­tus is elim­i­nat­ed.” Santa Clara is the sec­ond California coun­ty to pass a for­mal res­o­lu­tion call­ing for a mora­to­ri­um on exe­cu­tions. The city and coun­ty of San Francisco passed a sim­i­lar res­o­lu­tion, as have the cities of Oakland, Berkeley and Santa Cruz. (Associated Press, 10/​31/​01 and Californians for a Moratorium on Executions, Press Release, 10/​30/​01). For a list of groups that have passed mora­to­ri­um res­o­lu­tions, see http://​www​.quixote​.org/ej/.