2020-2021 (filed in)

Schubert v. CDCR      PENDING     No. 34-2021-00301253   (Filed on 8/18/21)

Sacramento Superior Court case challenging regulations issued by the Newsom Administration that will speed up the release of 76,000 prison inmates. Although Proposition 57 was sold to the public as a way to be more lenient on nonviolent convicts, the new regulations issued under it greatly expand the system of credits, shortening the sentences of all but a few of California's prisoners. Robbers, rapists, and even most murderers are eligible for the expanded credits. The suit challenging the regulations was begun by a group of 44 of California's 58 district attorneys. CJLF is now representing two victims' organizations, Crime Victims United and Citizens Against Homicide, who have joined the suit after the judge expressed doubt that the district attorneys had legal standing to make the challenge. The suit claims that the regulations were illegally adopted and conflict with multiple California laws. It seeks an injunction against their enforcement.

Shinn v. Ramirez      PENDING     No. 20-1009   (Filed on 7/22/21)

Two U.S. Supreme Court cases involving murderers who seek to relitigate their claims in federal court after the state courts reasonably rejected their claims as presented there.

David Ramirez stabbed to death his girlfriend and her 15-year-old daughter. Witnesses reported hearing the victims scream and cry for help for 20-30 minutes. He was convicted and sentenced to death. The state courts rejected his claims, including a claim that his lawyer was ineffective in presentation of the mitigating evidence. In federal court, Ramirez wanted to present additional evidence on mitigation, none of which has any demonstrable connection to the crime. After the federal district judge rejected the claim, the U.S. Court of Appeals for the Ninth Circuit sent the case back for a full evidentiary hearing on this evidence.

Barry Jones was seen hitting his girlfriend's 4-year-old daughter. He then refused to take her for medical attention as her condition obviously worsened, falsely telling concerned visitors that she had already been seen by paramedics. The little girl died of a bowel laceration. His conviction was affirmed on appeal, and a later claim that his lawyers had been ineffective was denied. In federal court, he sought to introduce evidence disputing whether the girl's injuries had been caused by the blow he was seen inflicting or by an earlier injury. The evidence did not dispute that he effectively caused the girl's death by not taking her to the hospital when she was obviously and gravely ill.

CJLF has joined the case to argue that in these circumstances a second hearing in federal court, after defendants have already had the chance to present their evidence to the state courts, is blocked by an Act of Congress, the Antiterrorism and Effective Death Penalty Act. The law has an exception for defendants with strong claims of actual innocence, but that exception does not apply to these cases.

United States v. Tsarnaev      PENDING     No. 20-443   (Filed on 6/21/21)

U.S. Supreme Court case in which the Boston Marathon Bomber challenges his death sentence. Defendant Dzhokhar Tsarnaev, along with his brother, set off bombs at the Boston Marathon. Three people died and hundreds were gravely injured. Tsarnaev can be seen on camera carrying his homemade bomb, which he intentionally placed near a group of children watching the race. On appeal, Tsarnaev claimed that the trial judge's questioning of potential jurors regarding pretrial publicity violated his rights, even though the judge followed the requirements of the Sixth Amendment as found in a 1991 Supreme Court case from a state court. The Court of Appeals agreed and overturned the sentence, finding that the judge did not comply with its own precedent from 1968 imposing additional requirements.

CJLF has entered the case to argue that the constitutional requirements clarified in 1991 apply equally in state and federal courts, and neither the Supreme Court nor the Court of Appeals should invent additional requirements for federal courts. Tsarnaev also claims that the trial judge erred in excluding marginally relevant evidence that his brother committed an unrelated murder earlier. CJLF argues that the judge was well within his discretion under the Federal Death Penalty Act, and that provision of the act is constitutional.

Brown v. Davenport      PENDING     No. 20-826   (Filed on 6/17/21)

U.S. Supreme Court case involving the standard of review federal habeas courts must apply when reviewing a state court’s determination of harmless error. Ervine Lee Davenport was partially shackled during his trial for first-degree murder. On direct appeal, the state appellate courts found that his partial shackling was unconstitutional, but was harmless beyond a reasonable doubt under the standard announced in Chapman v. California. Davenport subsequently filed a petition for a writ of habeas corpus in the U.S. District Court pursuant to 28 U.S.C. § 2254. Because Davenport’s partial shackling claim had been addressed by the state appellate courts, the federal habeas judge analyzed his petition pursuant to the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The District Court judge denied habeas relief after finding that the state court’s harmless error determination was neither contrary to nor involved an unreasonable application of clearly established federal law (applying 28 U.S.C. § 2254(d)(1)). A divided panel of the Sixth Circuit Court of Appeals reversed, finding that the District Court applied the incorrect standard for addressing harmless error. The majority found that Brecht v. Abrahamson, not AEDPA, supplies the correct standard, and based on Brecht alone, the shackling error was not harmless.

CJLF joined the case to argue that AEDPA requires federal courts to give great deference to a state court’s resolution of federal law, which includes a finding of harmless error. Because AEDPA was enacted to reduce delay, and is a prerequisite to habeas relief, a federal habeas court must review the state court’s harmless error determination for reasonableness under its provisions first. If a habeas petitioner satisfies the demands of AEDPA, then Brecht is applied. CJLF’s brief argues that if a federal habeas court is going to grant habeas relief, both AEDPA and Brecht must be addressed, and the “Brecht-only” approach taken by the Sixth Circuit was erroneous.

People v. McDaniel, No. S171393

California Supreme Court case in which a convicted murderer asks the court to overturn 40 years of settled precedent regarding how juries decide whether to sentence a murderer to death, a change which could overturn every sentence of every murderer currently on death row. McDaniel was a gang member who embarked on a revenge hit to kill a person who had stolen drugs from a member of McDaniel’s gang. Three other people happened to be in the apartment with the suspected thief. McDaniel and his accomplice broke in and shot all four of them. Two died and two were permanently disabled.

California’s structured process for deciding whether a murderer will be sentenced to death includes several steps. The murderer must be convicted of first-degree murder. At least one special circumstance in addition must be found. The jury must consider a wide variety of aggravating and mitigating circumstances. Finally, the jury must decide if the aggravating outweighs the mitigating and if death is the appropriate punishment. From the beginning, the law has been understood to require that the jury must be unanimous as to degree, special circumstances, and the ultimate penalty, and further that degree and special circumstances must be proved beyond a reasonable doubt.

McDaniel’s lawyers now ask the Supreme Court to declare that the jury must also be unanimous as to what aggravating factors have been proved, ignoring any that even one juror disputes, find them proved beyond a reasonable doubt, and find that the final penalty decision “proved” beyond a reasonable doubt. These claims have been considered and rejected dozens of times by the same court in the past, but now the court has asked for briefing on them. CJLF’s brief explains that neither the history nor the text of the California Constitution or the relevant statutes supports such a disruptive change. The Supreme Court unanimously agreed. The opinion's analysis largely tracks CJLF's argument, and our brief is expressly cited for one point.

In re Friend, No. S256914

California Supreme Court case in which a convicted murderer seeks to effectively nullify one of the key reforms of California's death penalty implementation initiative, Proposition 66. One of the reasons that California's death penalty was not being enforced prior to 2016 was that convicted murderers were allowed to file an unlimited number of collateral attacks on their judgments in habeas corpus petitions. Although almost all of these claims were rejected as too late, clearly meritless, or both, the time needed to decide those issues introduced great delay. Proposition 66 decreed that only claims by prisoners with a substantial claim of actual innocence (which almost none have) would be considered. Although this requirement is clearly stated both in the text of the initiative and the analysis by the Legislative Analyst, the prisoner in this case asks the Supreme Court to declare that the provision actually means something very different. He asks that the strict test of actual innocence apply only to cases where the petitioner cannot justify his late presentation of his claim, an issue that would take time to decide, reintroducing the delay that Proposition 66 sought to eliminate. Remarkably, instead of opposing this misinterpretation of the law, the California Attorney General has joined the murderer in supporting it. CJLF's brief stands alone in asking the court to uphold the law as written. Equally remarkably, the court accepted this invitation to rewrite the statute rather than give it a fair interpretation.

Jones v. Mississippi, No. 18-1259

United States Supreme Court case regarding the requirements for sentencing a murderer under the age of 18 to life in prison without parole. Bertis and Madge Jones took in their 15-year-old grandson, Brett Jones, after Brett had a violent confrontation with his stepfather. Brett later had an argument with his grandfather after the elder Mr. Jones discovered Brett's girlfriend secretly living in his room. Later, Brett stabbed his 68-year-old grandfather eight times, using a second knife after the first one broke. The trial judge described the killing as "particularly brutal." The jury rejected Jones's claim of self-defense and convicted him of deliberate-design murder. His sentence of life in prison without parole (LWOP) was later vacated after the Supreme Court decided in Miller v. Alabama that sentencers must have discretion to consider the defendant's youth in such cases. Following a new sentencing hearing, the judge decided that notwithstanding Jones's youth LWOP remains the appropriate sentence for this brutal crime. The decision was affirmed on appeal. Jones appealed to the U.S. Supreme Court. He claims that under a later decision, Montgomery v. Alabama, the trial judge's consideration of his youth is not enough. He claims that he cannot be sentenced to LWOP unless the judge makes a further finding that he is "permanently incorrigible." Acceptance of this claim would require resentencing in the cases of nearly every juvenile murderer sentenced to LWOP in the country, even though they have already had the discretionary sentencing hearings Miller requires. CJLF has written two "friend of the court" briefs in this case. The brief for CJLF makes the legal argument that the Supreme Court's precedents do not require the finding that Jones claims, and the sentencing "fact" that he wants found is so vague that it would be unconstitutional. A second brief, for the National Organization of Victims of Juvenile Murders and Arizona Voice for Crime Victims, tells the stories of families of victims murdered by under-18 murderers to ensure that the Supreme Court understands the impact of the crimes and the endless proceedings that these families endure. The Supreme Court agreed that a hearing in which the judge has discretion to choose a lesser sentence is all that the Constitution requires.

In re Mohammad      PENDING     No. S259999   (Accepted on 7/23/20)

California Supreme Court case to review whether Proposition 57 precludes early parole consideration for inmates currently serving a sentence for both violent and nonviolent felony offenses. Proposition 57 permits early parole eligibility for state prisoners "convicted of a nonviolent felony offense" after completing the full term of their primary offense. The CA Department of Corrections and Rehabilitation (CDCR) promulgated regulations that excluded from early parole consideration inmates currently serving a sentence for a violent felony. Mohammad pled no contest to nine counts of robbery (violent felonies) and six counts of receiving stolen property (nonviolent felonies). The sentencing court designated one of the nonviolent felonies as the principal term and ordered him to serve three years in prison. The court then ordered consecutive one-year terms on each of the nine violent offenses, and consecutive eight-month terms on each of the remaining five nonviolent felonies. After completing the full three-year term for the nonviolent primary offense, Mohammad requested an early parole consideration hearing. CDCR denied his request. On appeal, the Court of Appeal granted relief, finding that because he had completed the full term of his primary offense, he was eligible for early parole consideration even though he was currently incarcerated for the violent offenses. The Court of Appeal interpreted the measure to mean that an inmate who is serving an aggregate sentence for more than one conviction will be eligible for an early parole hearing if only one of those convictions was for “a” nonviolent felony offense. CJLF joined the case to argue that the Court of Appeal's erroneous interpretation of the measure would essentially sweep the entire state prison population into its purview and is contrary to voter understanding and intent. Such an interpretation would also lead to the absurd result that inmates convicted of more crimes would be eligible for early parole consideration whereas inmates convicted of less crimes would not.

O.G. v. Superior Court, No. S259011

California Supreme Court case to review whether the California Legislature unconstitutionally amended the statutory provisions of Proposition 57 when it enacted Senate Bill 1391. Proposition 57 gave sole authority to juvenile court judges to decide whether a juvenile age 14 and older should be transferred to adult criminal court. Proposition 57 expressly authorized the Legislature to make amendments to the measure so long as they are "consistent with and further the intent" of the act. Senate Bill 1391 repealed a district attorney's authority to seek a transfer of 14- and 15-year-old offenders to adult court. O.G. was 15 years old when he murdered two people. The Ventura County District Attorney's Office sought to prosecute O.G. as an adult. O.G. objected and argued that Senate Bill 1391 prohibited the transfer. CJLF joined the case to argue that repealing a district attorney's authority to seek the transfer of a violent and dangerous 14- or 15-year-old offender to adult court is not consistent with and does not further the intent of Proposition 57. Senate Bill 1391 significantly altered the statutory provisions of Proposition 57. The Legislature exceeded the limited authority they were given and unconstitutionally amended Proposition 57 when they enacted Senate Bill 1391. The California Supreme Court upheld the constitutionality of Senate Bill 1391 as a permissible amendment to Proposition 57.

Borden v. United States, No. 19-5410

U.S. Supreme Court case on the "three strikes" provision of the Armed Career Criminal Act. That provision requires a 15-year minimum sentence for a violation by a felon who has three prior convictions for violent felonies. Charles Borden was found to be illegally in possession of a gun under circumstances indicating he was involved in drug dealing. He had three prior convictions for aggravated assault. Borden claims that a prior conviction does not count as "violent" if the statute defining the crime permits a conviction on a showing that it was committed recklessly rather than intentionally, regardless of how clearly the actual crime was intentional. The Model Penal Code provides that a defendant can be convicted of most violent offenses upon a showing that the crime was purposeful, knowing, or reckless, and the bulk of states have followed this pattern. Acceptance of Borden's argument would prevent application of the "three strikes" provision to a great many crimes that are clearly violent. CJLF entered the case to argue that recklessness is a well-established mental state for violent crimes, and statutes following the standard definition come within the intent of this law. The Supreme Court was divided and unable to agree on a single rationale. However, the result of the case is that prior offenses that can be committed with a reckless mental state will not be counted for the ACCA.

2019 (filed in)

Department of Homeland Security v. Thuraissigiam, No. 19-161

U.S. Supreme Court case involving a citizen of Sri Lanka who was apprehended at the border almost immediately after surreptitiously crossing into the United States from Mexico. He lacked the documentation required for entry into the United States, was determined to be excludable, and was placed in expedited removal proceedings. He claimed a fear of returning to Sri Lanka and was referred for an interview with an asylum officer. The officer determined that he had not established a credible fear of persecution. This finding was affirmed by the officer's supervisor and an immigration judge. An expedited removal order was entered. Thuraissigiam filed a habeas corpus petition. Because 8 U.S.C §1252(e)(2) limits judicial review of expedited removal orders to three narrow factual determinations, none of which were applicable to Thuraissigiam, the District Court dismissed his petition for lack of jurisdiction. The question before the Supreme Court is whether 8 U.S.C. §1252(e)(2), removing habeas corpus jurisdiction as to some alien removal cases, violates the Suspension Clause of the Constitution as applied to an excludable alien apprehended immediately after illegal entry. CJLF joined the case to argue that Thuraissigiam is not a holder of the constitutional privilege of the writ of habeas corpus because his only connection with the United States was stepping a few yards inside of the border. Because he is not a holder of the privilege, he has no rights under the Suspension Clause. The Supreme Court upheld the statute. The majority decided that because petitions such as Thuraissigiam's are not about entitlement to release they do not fall within the core right protected by the Suspension Clause, and Congress can decide whether to provide judicial review of DHS's decision. A concurring opinion adopted a version of CJLF's argument in part, indicating that persons with minimal connection to the country are not entitled to the full protection afforded citizens and permanent residents.

McKinney v. Arizona, No. 18-1109

U.S. Supreme Court case reviewing the death sentence of a serial robber and double murderer. The case involves an issue of how a state court can repair a problem in a capital sentence that had been found by a narrowly divided federal court. After the Ninth Circuit held 6-5 that the state courts had not fully considered James McKinney's mitigating evidence when weighing it against the properly found aggravating factors, the Arizona Supreme Court reweighed the evidence itself and affirmed McKinney's death sentence. McKinney claims that once the proceedings were reopened his case was no longer "final," Supreme Court precedents established after his initial appeal now fully apply, and he is entitled to a full resentencing before a jury. CJLF argues that regardless of whether the new decisions apply, McKinney is not entitled to full resentencing. The new cases only entitle a defendant to have a jury make the finding of an aggravating circumstance needed to make him eligible for the death penalty. Other, long-established Supreme Court precedents which have not been overturned permit the Arizona Supreme Court to repair and reinstate a death sentence by reweighing in the manner that it did. The Supreme Court agreed and upheld the sentence.

Hernández v. Mesa, No. 17-1678

U.S. Supreme Court case involving a lawsuit arising from the cross-border shooting of a Mexican citizen by a U.S. Border Patrol Agent. The family of Sergio Hernández, a juvenile with no ties to the U.S. who was likely participating in an illegal alien smuggling operation, seek to force an agent of the Border Patrol into litigation over an incident that had already been investigated by the Department of Justice and found to be a use of force consistent with the policy and training of his agency. Congress has not created a remedy for cross-border shootings by federal officials. The question before the Court is whether it should invent a remedy where Congress has not. In 2017, CJLF filed a brief in this case (No. 15-118) arguing that the judicial branch should not step in, but rather should leave the matter to Congress. The Supreme Court sent the case back to the Fifth Circuit Court of Appeals to decide the issue under new precedent (Ziglar v. Abbasi, No. 15-1358) that was decided earlier in the term. On remand, the Fifth Circuit refused to fashion a new remedy and affirmed the District Court's dismissal of all claims against the Border Patrol agent. CJLF joined the case again to argue that Congress, not the judiciary, is the proper branch to decide if noncitizens can recover for torts committed by federal law enforcement officers causing damage in a foreign country. The Supreme Court agreed and affirmed.

Mathena v. Malvo, No. 18-217

U.S. Supreme Court case involving one of the notorious D.C. sniper’s claims that the four life without the possibility of parole sentences imposed upon him in Virginia as a teenager were unconstitutional and must be overturned. In the fall of 2002, 17-year-old Lee Boyd Malvo and his adult accomplice, John Muhammad, embarked upon a weeks long sniper shooting crime spree that terrorized the Washington D.C. metropolitan area. Over a 20-day period, the pair randomly hunted down and killed 12 unsuspecting victims as they stood in parking lots, pumped gas, or innocently walked down the street. Malvo was charged as an adult and subsequently convicted of four counts of capital murder for the Virginia slayings. He was sentenced to four terms of life in prison without the possibility of parole. After Malvo’s convictions became final, the Supreme Court decided a series of cases involving the constitutionality of juvenile sentencing practices. In Miller v. Alabama, the Court held that the Eighth Amendment prohibits the automatic imposition of a life without parole sentence on a juvenile homicide offender. The sentencing court must provide the juvenile with the opportunity to present mitigating evidence of “youth and attendant characteristics” that may justify a lesser sentence. Montgomery v. Louisiana later held that Miller applies to cases retroactively. Malvo argues that because he never received a proceeding in which mitigating evidence of his youth was considered, his sentences must be reversed. CJLF joined the case to argue that Miller’s holding is limited to sentencing schemes that mandate life without parole for juvenile homicide offenders. Under Virginia law, the trial court had the discretion to order a lesser sentence for Malvo. State court judgments should not be reopened when a state’s sentencing scheme at the time of sentencing gave the trial court the opportunity to impose a less severe sentence. While the appeal was pending, the Virginia Legislature enacted a law making juvenile offenders sentenced to life in prison eligible for parole after serving 20 years of their sentence. The new law rendered the case against Malvo moot. Because of the new law, counsel for both sides filed a Rule 46.1 Stipulation of Dismissal. The Supreme Court dismissed the petition.

Ellis v. Harrison, No. 16-56188

U.S. Court of Appeals case asking whether a murderer’s conviction should be overturned many years after the crime merely because his lawyer held prejudiced attitudes, without any showing that the lawyer did not provide good representation or that the defendant’s rights were prejudiced. After the California Attorney General switched sides and supported the murderer on this point, the Court of Appeals invited CJLF to brief the issue in support of affirming the judgment. However, on January 15, 2020, the court disposed of the case in a two-paragraph order without resolving the legal issue presented. The court decided that the Attorney General’s change of position alone was sufficient to reverse the decision of the district court. Although this decision is contrary to long-established practice, only the Attorney General can ask the U.S. Supreme Court to review it, and he has not done so.

In re Alexander, No. 19-70232

U. S. Court of Appeals case challenging the stays of execution that have prevented enforcement of the California death penalty since 2006. This case became moot when the state adopted a new execution protocol, yet the Attorney General failed to move for dismissal or appeal the grant of new stays to intervening death row inmates. CJLF filed the petition on behalf of families of murder victims asking that the stays be vacated.

Two years after our petition was filed, Governor Newsom issued a reprieve for all death row inmates and rescinded the state's execution protocol. The federal court action was then dismissed. This action made our petition moot, as there was no court stay to challenge. The Ninth Circuit finally dismissed the petition as moot on September 16, 2021.

Virginia House of Delegates v. Golden Bethune-Hill, No. 18-281

U. S. Supreme Court case involving the question of who has standing to appeal a decision blocking enforcement of a state law when the governor of the state chooses not to appeal. The case involves a reapportionment battle, but the question of standing comes up often in cases where CJLF is representing the rights of victims of crime. In some cases, a governor who does not want to enforce a law he disagrees with has blocked that law simply by "taking a dive" in litigation brought by a third party. In this case, CJLF argued that allowing the governor alone to decide whether a federal court injunction against enforcement of a law violates the important state interest in its constitutional separation of powers. Our brief urges that the standing requirement be interpreted widely enough to ensure that such decisions can be reviewed at higher levels of the federal court system. The Supreme Court held that the House of Delegates did not have standing, but its ruling was narrow enough that it is not likely to damage the cause of remedies for crime victims.

2018 (filed in)

People v. Arredondo, No. S244166

California Supreme Court case in which the defendant was convicted of 14 sex offenses against four young girls, three of which were his stepdaughters. The eldest of the three stepdaughters had been repeatedly sexually molested by the defendant from age 8 to age 16. At the time of trial, she was 18 years old and in the 11th grade of high school. When she was called to the witness stand to testify against the defendant, she was extremely emotionally distraught. A small computer monitor that is normally affixed to the witness stand was slightly elevated so that it blocked her view of the defendant. The minor modification to the witness stand eased her emotions and enabled her to testify without further incident. The defendant argued that his Sixth Amendment right to confront witnesses against him was violated because he could not see the witness "face to face" as she testified in his presence. CJLF filed a brief to argue that the state has a compelling interest in protecting crime victims of all ages and that easing a physically present victim witness's anxiety with a minor modification to the witness box has little impact on a defendant's confrontation rights. The California Supreme Court rejected the defendant’s argument that an accommodation can never be made for an emotionally traumatized sexually abused witness. The trial court can make findings on the record that a victim of sexual abuse needs an alternate procedure for testifying or needs modifications made in the courtroom to prevent him or her from having to directly face his or her abuser. Because the record was insufficient in this case to support the modification made by the trial court, the court reversed three of the defendant’s convictions pertaining to the eldest victim, and it affirmed the remainder.

Deck v. Jennings (formerly Deck v. Steele), No. 17-2055

Federal Eighth Circuit Court of Appeals case to review a lower court decision that overturned Carman Deck's death sentence and directed that he be sentenced to life in prison without the possibility of parole. In June 1996, Deck robbed and murdered an elderly couple, Jim and Zelma Long, in their home. Deck was convicted of first-degree murder and sentenced to death in June 1998. His sentence was subsequently reversed and remanded for a new penalty phase trial. In April 2003, Deck was again sentenced to death by a new jury. The U. S. Supreme Court again reversed the death sentence finding that Deck's visible shackling in the presence of the second jury denied him a fair trial. A third penalty phase trial was held in September 2008. A jury again sentenced Deck to death for the two murders. The judgment was affirmed and state post-conviction relief was denied. Deck then filed a petition for habeas corpus relief in federal district court. Deck argued that the delay between his conviction in 1998 and his third penalty phase trial in 2008 violated his constitutional rights and that his attorneys were ineffective for not raising this unconstitutional delay argument. The U. S. District Court for the Eastern District of Missouri agreed with Deck, finding that his third penalty phase trial was fundamentally unfair because of delay not attributable to him and that counsel's failure to pursue the unconstitutional delay claim in the state courts was ineffective. CJLF joined the case on behalf of the murder victims' family members, arguing that the delay between Deck's conviction and final sentencing did not violate his constitutional rights. Deck was found guilty of murder over 20 years ago. He has since then pursued every avenue of relief available to him by the state and federal governments. This was not due to attorney error or government delay. Furthermore, Deck's claims were procedurally defaulted in state court and it was error for the District Court to address the claims and grant relief. The Court of Appeals agreed, reversed the District Court's holding, and reinstated Deck's death sentence.

In re Humphrey, No. S247278

California Supreme Court case to review a lower court decision that granted Kenneth Humphrey a new bail hearing in which inquiry must be made on his ability to pay money bail. If unable to pay money bail, non-monetary alternatives must be addressed. Humphrey, a repeat offender, was charged with robbery and burglary. Bail was initially set at $600,000, then later reduced to $350,000. Humphrey's request for pretrial release on his own recognizance without financial conditions was denied. Humphrey was unable to post bail and remained detained pretrial. Humphrey filed a petition for a writ of habeas corpus, arguing that the trial court's failure to inquire into his financial circumstances and to not consider less restrictive alternatives to money bail was a violation of his constitutional rights. CJLF joined the case to argue that public and victim safety are the primary considerations to be evaluated by a court when initially deciding whether an arrestee is eligible for pretrial release, and, if eligible, what type of pretrial release is appropriate under the circumstances—money bail or release on own recognizance without financial conditions. The trial court found that Humphrey was ineligible for release on his own recognizance because of his danger to public safety and as a "flight risk." To release Humphrey on an amount that he could afford, or on other less restrictive alternatives, would essentially permit his release on his own recognizance, which is contrary to the trial court's findings regarding his danger to victim and public safety. The California Supreme Court held that trial courts must consider an arrestee’s ability to pay when setting the amount of money bail.

Nielsen v. Preap, No. 16-1363

U.S. Supreme Court case regarding the detention of aliens who have committed aggravated felonies. Federal law says that certain categories of aliens, including those who have committed "aggravated felonies," must be arrested by federal immigration authorities upon their release from prison or jail and held pending deportation. Aliens subject to this law sued the Secretary of Homeland Security, claiming that the detention provision only applied to those who actually were arrested immediately upon release from state custody. Those who avoided federal arrest for any reason (such as a "sanctuary" law that prevents the federal government from knowing when they will be released) are exempt, they claimed. CJLF filed a "friend of the court" brief to oppose this illogical misinterpretation of the law. The Supreme Court agreed and reversed a contrary decision of the Court of Appeals for the Ninth Circuit.

Hernandez v. Chappell, No. 11-99013

U.S. Court of Appeals case involving a California murderer who committed horrible sex crimes against a young woman and a teenage girl and murdered them both. The verdict of guilt was affirmed on appeal, on state habeas corpus, and by a federal district judge on federal habeas corpus, but then a three-judge panel of the court of appeals reversed in a decision that was supposedly two-to-one, even though one of the two judges in the majority had died before the final decision. The “majority” held that defense counsel had been ineffective in not raising a diminished capacity defense, contrary to decision of every judge who previously looked at the case. CJLF filed a brief in support of the state’s petition for rehearing, arguing that the "majority" had applied the wrong standard for judging whether a lawyer’s decision undermines confidence in the result. The petition was granted, and the case will be reheard by three living judges.

United States v. California, No. 2:18-CV-00490-JAM-KJN

U.S. District Court case in which the federal government challenges a package of three "sanctuary bills" passed by the California Legislature to hinder enforcement of federal immigration law. CJLF filed a brief supporting the federal government’s challenge to one of the three bills—the one that penalizes employers for cooperating with federal law enforcement. The District Court struck down this law while upholding the other two. Both sides will likely appeal.

Sims v. CDCR, No. CIV1004019

Superior Court case to remove the state-court injunction against executions that has been in place since 2012. In 2008, a California Court of Appeal held execution protocols needed to be established through the cumbersome regulation-creating mechanism of the Administrative Procedure Act (APA), even though they never needed to before. In 2012, after the CA Department of Corrections and Rehabilitation attempted to comply with the APA, the Marin County Superior Court held that CDCR had not met all the requirements and enjoined any further executions in California. Proposition 66, passed by the voters in the November 2016 election, eliminated the legal basis for this injunction by exempting execution protocols from the APA. The California Supreme Court delayed its effective date for a year. Three months later, after CDCR still had not moved to lift the injunction, CJLF made the motion on behalf of Kermit Alexander, a family member of murder victims and the proponent of Proposition 66. On April 9, 2018, the court agreed with CJLF's argument and lifted the injunction. The plaintiffs did not appeal.

2017 (filed in)

San Francisco v. Trump / Santa Clara v. Trump, Nos. 17-17478 & 17-17480

On January 25, 2017, the President directed the Attorney General and the Secretary of Homeland Security to withhold government grants from jurisdictions that refuse to comply with a federal law regarding the immigration status of jail inmates. The order was expressly limited "to the extent consistent with law," and the Department of Justice subsequently issued an interpretation that the limitation was restricted to law enforcement grants conditioned on certifying compliance with federal law, consistent with the interpretation of the law governing those programs issued during the Obama Administration. Despite this, a federal district judge interpreted the order to cover all federal grants and then declared the order with this bloated interpretation to be unconstitutional. CJLF entered the case to argue that this interpretation is contrary to well-established principles. The Department of Justice interpretation is correct, and as so interpreted the order is unquestionably valid. On August 1, 2018, a three-judge panel split 2-1 in favor of San Francisco's and Santa Clara's position. The government did not take the case to the Supreme Court.

People v. Cervantes, No. S241323

California Supreme Court case to review whether Proposition 57 applies retroactively to juvenile cases that had been directly filed in adult court prior to it being passed in the November 2016 election. Alexander Cervantes was 14 years old when he committed horrific sex crimes against a 13-year-old girl. He was directly charged as an adult and convicted by a jury on all charged substantive offenses. During the pendency of Cervantes’ appeal, California voters passed Proposition 57, which eliminated the statutes that required or permitted prosecutors to directly file charges against a minor in adult court. A California Court of Appeal found that Cervantes’ attorney had been ineffective at trial and partially reversed the judgment and remanded the case for retrial. The Court of Appeal further held that Proposition 57 gives Cervantes the ability to have his case retried in juvenile court. CJLF joined the case to argue that Proposition 57 only applies prospectively. Because Cervantes’ case was lawfully initiated in adult criminal court all proceedings from that point occurred as if he were an adult and it must remain in that court on remand for retrial and re-sentencing. On February 1, 2018, the California Supreme Court decided People v. Lara in which it held that Proposition 57 applies retroactively to all nonfinal cases. Because Cervantes' case was still pending when Proposition 57 passed, Lara dictates that it is applicable to his case. As a result, the court dismissed the matter and remanded it to the Court of Appeal.

Johnson v. Ferguson, No. 16-1697

Federal Eighth Circuit Court of Appeals case to review lower court decisions that would allow Dorian Johnson, the 22-year-old companion of Michael Brown, to sue the city and Officer Darren Wilson for violating his rights. In August 2014, Officer Wilson shot and killed Michael Brown, who had just robbed a convenience store when Officer Wilson saw the pair walking down the middle of a street in Ferguson, Missouri. Johnson claims that when Officer Wilson ordered them to the sidewalk, he had unlawfully seized him in violation of the Fourth Amendment. Although both federal and grand jury investigations of the incident found that Johnson had lied about the events leading up to the shooting and the shooting itself, motions to dismiss the lawsuit have been rejected by the federal district court and a divided Eighth Circuit panel. When the circuit agreed to reconsider the panel's ruling en banc, CJLF joined the case on behalf of the National Police Association arguing that by Johnson's own admission he was not ordered to stop or prevented from leaving, which he did when he eventually ran. Citing its 1991 U. S. Supreme Court victory in California v. Hodari D., CJLF argued that the facts Johnson describes, of his encounter in the middle of the street with Officer Wilson, do not constitute a seizure. Because of this, the lawsuit should be dismissed. The Court of Appeals agreed.

Hays v. Vogt, No. 16-1495

U. S. Supreme Court case involving a civil lawsuit filed by a police officer against his former employer for money damages pursuant to 42 U.S.C. § 1983. Matthew Vogt was employed by the City of Hays Police Department. While interviewing for a new job with the City of Haysville Police Department, Vogt disclosed that he had kept a knife he acquired during an investigation while working as a Hays officer. During a subsequent investigation, Vogt was required to report on the circumstances of this incident. Later, Haysville withdrew its job offer and Vogt was charged with two felony counts relating to the knife. Vogt’s statements and the evidence collected were introduced as evidence at a probable cause hearing. Due to a lack of probable cause, the trial court dismissed the two felony counts. Vogt then filed a civil suit against Hays alleging that his Fifth Amendment right to be free from self-incrimination was violated when his statements about the knife and the evidence collected were introduced against him at the probable cause hearing. The district curt granted Hays’ motion to dismiss, concluding that Vogt did not establish a valid Fifth Amendment claim. The Tenth Circuit reversed in part, holding that a probable cause hearing is part of a “criminal case” as that term is used in the Fifth Amendment. CJLF joined the case to argue that the Fifth Amendment’s privilege against self-incrimination has been interpreted more broadly than the words of the amendment provide. Neither the use of Vogt's statements to locate additional evidence about the knife, nor the introduction of that derived evidence in the probable cause hearing violated the Fifth Amendment. The Supreme Court decided it should not have taken this case up at all and dismissed it. The issues will have to be decided in another case. At oral argument it became apparent that other problems in the case muddied the issues, and on May 29, 2018, the Supreme Court dismissed the case "as improvidently granted." We will brief the issue again in another, appropriate case, when the high court takes it up again.

Trump v. IRAP, No. 16-1436

President Trump issued an executive order providing for a 90-day ban on travel from six specified countries by persons without a prior connection with the United States. The Court of Appeals for the Fourth Circuit upheld an injunction against this provision. Based on campaign statements and other external materials, the Court said it was actually a “Muslim ban” even though 90% of the world’s Muslims are unaffected by it. The 90 days will be up by the time the Supreme Court hears argument in the case. Therefore, it will not be a “case” that the courts have power to decide. CJLF filed a brief arguing that the case will become moot upon expiration of the 90 days. Under long-established precedent, the case should be dismissed, eliminating the Fourth Circuit’s decision as precedent. The Supreme Court agreed.

Weaver v. Massachusetts, No. 16-240

U.S. Supreme Court case involving a Massachusetts murderer's claim that his conviction must be reversed because his attorney did not bring to the trial court's attention a trivial error that had no affect on the fairness or reliability of the trial as a whole. In August 2003, Kentel Myrone Weaver was arrested and charged with the murder of 15-year old Germaine Rucker. During jury selection, approximately 90 potential jurors made the courtroom very crowded, thus allowing for standing room only. Due to the crowded conditions, a court officer informed Weaver's mother and those accompanying her that the courtroom was closed for jury selection. They were denied entry on the second day of empanelment for the same reason. Weaver's trial attorney did not object to the closure. Weaver was convicted of first-degree murder in 2006. In 2011, Weaver filed a motion for a new trial claiming ineffective assistance of counsel. Weaver argued that his attorney's failure to object to the courtroom closure during jury empanelment violated his 6th Amendment right to a public trial. The trial court denied the motion finding that even though his attorney's failure to object constituted deficient performance it was not prejudicial to Weaver. On appeal, Weaver argues that because his right to a public trial was erroneously denied, U.S. Supreme Court precedent deems it a "structural error" and prejudice to him is presumed. Because prejudice is presumed in that context, he argues that he does not need to prove prejudice when claiming ineffective assistance of counsel because it should also be presumed in that context as well. CJLF joined the case to argue that there are two separate rights at issue in this case—the right to a public trial and the right to effective assistance of counsel. When a trial attorney inadvertently fails to object to a "structural error," like the right to a public trial, it does not automatically relieve a defendant from proving prejudice. Prejudice is an element of a defendant's ineffective assistance of counsel claim. CJLF also argued that under a "plain error" analysis, courts are permitted to remedy an error if not doing so would result in a miscarriage of justice. Because the trial attorney's failure to object to the closure during jury selection only did not affect the fairness or reliability of the proceedings as a whole, overturning Weaver's sentence would undermine the public's trust in the criminal justice system. The Supreme Court agreed with our position.

Davila v. Davis, No. 16-6219

U.S. Supreme Court case in which a double murderer attempts to raise new challenges to his sentence long after the proper time for doing so by accusing the previous lawyers of ineffective assistance. In 2008, Erick Davila sprayed bullets at a child's birthday party in an attempt to kill rival gang members. The group assembled on the porch of the Houston home was mostly women and children having cake and ice cream for the birthday, though the father of one of the children was also there and being targeted by Davila. In this assault, Davila wounded three girls and one woman, and he killed Annette Stevenson and her five-year-old granddaughter. After Davila's case had been heard and decided on direct appeal and in a state habeas corpus proceeding, he went to federal court with a habeas corpus petition. There, he wanted to raise a new issue relating to the jury instruction regarding how many people he needed to have intended to kill in order to be guilty of capital murder rather than just murder. His lawyer had not raised the issue on appeal (probably because she considered it a weak claim), and this would normally block the issue from the federal courts as well. Davila claimed that the appeal lawyer was ineffective for not raising it. His lawyer in state habeas corpus had not claimed ineffective assistance of the appeal lawyer, so this claim also could not normally be raised in a subsequent review of the case. So Davila claims the habeas corpus lawyer was ineffective also. The federal district court held that the claim was barred and, in addition, that it was without merit even if it could be considered. In the Supreme Court, CJLF argued that there needs to be an end to this chain of reopening decided cases by attacking the competence of all the prior lawyers. The high court agreed and affirmed the judgment.

Briggs v. Brown, No. S238309

California Supreme Court case challenging the validity of the major reform of the state's system for reviewing death penalty cases approved by the voters in the November 2016 election. In that election, California voters rejected a proposition to repeal the death penalty and simultaneously approved a reform measure. Two advocates on the losing side of the vote, John Van de Kamp and Ron Briggs, promptly filed a lawsuit to overturn the voters' decision. They claim the measure is invalid as embracing more than one subject, even though it is entirely about capital cases. They also attack the reforms that put limits on the number of times a judgment can be challenged, tightening the limit on how long a murderer has to file a challenge, and setting a five-year standard for the California courts to complete their review. CJLF argued the case in the California Supreme Court on behalf of the Yes on 66 campaign committee, which has intervened to defend the initiative. The court rejected every one of the challengers’ many arguments and upheld the initiative.

Hernández v. Mesa, No. 15-118

U.S. Supreme Court case involving a lawsuit arising from the shooting of a Mexican citizen by a U.S. Border Patrol agent. Sergio Hernández was a juvenile with two prior arrests for alien smuggling when he and other teenagers confronted Agent Jesus Mesa. The facts are disputed. Hernández's parents claim the boys were merely playing a game where they run across the border and touch the fence. Agent Mesa contends that he was stopping a smuggling operation when he was attacked by multiple people throwing rocks. Agent Mesa fired his weapon and killed Hernández, who was across the border in Mexico at the time. There are many acts of Congress that establish remedies for people who claim to have been illegally injured by government agents, but none of them apply in the case of a person who is not a citizen or resident of this country and was injured outside the nation's borders. The question is whether the courts should invent a remedy where Congress has not. CJLF argued that in a case such as this involving relations between the United States and another country, the judicial branch should not step in but should leave the matter to Congress. The Supreme Court decided another case in the same term consistently with CJLF’s position and sent this case back to the Court of Appeals for a decision under the new precedent.

2016 (filed in)

People v. Farwell, No. S231009

California Supreme Court case involving a habitual felon’s claim that his conviction of driving without a license should be overturned because the judge failed to instruct him that admitting his guilt to that offense would waive some of his constitutional trial rights. Randolph Farwell was convicted of vehicular manslaughter after his reckless driving resulted in his car hitting a tree at high speed, killing a female passenger. At the time of the crash, Farwell’s license had been suspended after an earlier reckless driving arrest. Farwell also had a previous conviction for burglary. At trial, Farwell and his attorney agreed to admit guilt on the suspended license charge to prevent jurors from hearing the details of the earlier driving arrest. On appeal, Farwell argued that the law required his conviction to be overturned because the judge did not instruct him on the consequences of his admission of guilt. CJLF joined the case to oppose Farwell’s claim, arguing that the law actually allows a review of the entire trial court record to determine if he knowingly and intelligently waived his trial rights when he admitted guilt on the driving without a license charge. The applicable test is whether, under the totality of the circumstances, a defendant knowingly and voluntarily waived certain trial rights. This test is applicable to all cases in which a trial court fails, either partially or completely, to advise a defendant of these rights. A reviewing court can look at the entire record, not just the record at the time of the plea or stipulation, to determine if a defendant’s waiver was voluntarily and intelligently given. The California Supreme Court agreed with our position.

Moore v. Texas, No. No. 15-797

U. S. Supreme Court case U. S. Supreme Court case to review a Texas murderer’s claim that he is too mentally retarded to be eligible for the death penalty. Bobby James Moore was convicted and sentenced to death for the 1980 shotgun murder of 78-year-old James McCarble during the robbery of a grocery store in Houston. Eyewitnesses testified to seeing Moore shoot the elderly man in the head even though he had his hands up. After more than three decades of failed appeals, Moore now claims that the state’s rules governing the evaluation of mental disability in death penalty cases are unconstitutional, and should comply with the ever-changing standards announced by private associations. When the Supreme Court agreed to hear Moore’s claim, CJLF joined the case to argue that allowing private organizations with political agendas to control how states determine if murderers are mentally retarded would throw every state’s process for determining a defendant’s mental competence into turmoil and invite endless litigation over the sentencing of guilty and fully competent murderers such as Moore. The Court ruled that the standard used by Texas was inappropriate and reversed, but it did not go so far as to mandate use of privately determined standards.

Peña-Rodriguez v. Colorado, No. 15-606

U. S. Supreme Court case involving a long-standing rule of evidence that protects the secrecy of jury deliberations versus a criminal defendant’s constitutional right to an impartial jury. In May 2007, Miguel Peńa-Rodriguez was arrested and charged with attempted sexual assault on a child, unlawful sexual contact, and harassment after an encounter with two teenage sisters in a bathroom where their father was employed. A three-day trial ensued. After entry of a guilty verdict, two jurors spoke with defense counsel alleging that a fellow juror made racially biased statements during deliberations. Peńa-Rodriguez submitted affidavits from the two jurors and moved for a new trial. The trial court denied the motion, finding that Colorado Rule of Evidence 606(b) barred any inquiry into jury deliberations. The Colorado Court of Appeals and Colorado Supreme Court both affirmed the trial court’s decision. CJLF joined the case to argue that preserving the secrecy of jury deliberations is consistent with the right to a jury trial guaranteed by the Sixth Amendment and that allowing litigants to peek into the jury room under the guise of determining whether racial bias played a role in the decision-making process is contrary to Congressional intent and U. S. Supreme Court precedent. CJLF also argued that protecting the confidentiality of jury deliberations is fundamental to the uninhibited and forthright discussion that must occur for a jury to wholly focus on reaching the right result. The court created a narrow exception for racial bias claims and reversed the judgment, but it otherwise left the confidentiality rule in place.

Beylund v. Levi, No. 14-1507

U. S. Supreme Court decision upholding North Dakota’s implied consent law, which allows the state to suspend the driver’s license of any intoxicated driving suspect who refuses to submit to a breath test. The case involved the 2013 arrest of Michael Beylund on suspicion of drunk driving. Because Beylund was uncooperative with police and failed to provide an adequate breath sample he was arrested and taken to a hospital. After he was advised that, under the state’s implied consent law, his refusal to be tested would result in suspension of his driver’s license, he agreed to be tested. The test showed a blood alcohol level of over three times the legal limit. On appeal, Beylund argued that the state’s implied consent law subjected him to an unconstitutional search. After two state courts rejected his claim, the U. S. Supreme Court agreed to consider it. CJLF joined the case to argue that the challenged law is a reasonable tool used in all 50 states to keep intoxicated drivers off the road, and that the privilege to drive is conditioned upon the licensee’s agreement to consent to testing to protect the public from drunk drivers. The Supreme Court agreed.

Johnson v. Lee, No. 15-789

A U. S. Supreme Court case regarding whether a double murderer can reopen challenges to her convictions after they have been properly dismissed by the state courts. On Mother's Day 1995, Donna Lee and Paul Carasi murdered Carasi's mother, Doris Carasi, and Sonia Salinas, who was Carasi's previous girlfriend and the mother of his child. The California Court of Appeal considered and rejected the claims that Lee raised on appeal. In a second review of the case, called habeas corpus, the state courts properly refused to consider claims that Lee could have raised in the initial appeal, but did not. Nearly all states and the federal courts have similar Procedural default" rules. The U. S. Court of Appeals for the Ninth Circuit reopened these weak claims, requiring a new round of litigation, by declaring California's rule "inadequate" merely because its courts do not mechanically apply in every instance, but sometimes deny claims on the merits instead. CJLF has filed a brief asking the U. S. Supreme Court to review this decision. In a system of limited resources and long delays, scarce resources should not be spent routinely relitigating defaulted claims in final cases. Such reopening should be limited to cases with strong claims of actual innocence.