2023-2024 (filed in)

Glossip v. Oklahoma      PENDING     
No. 22-7466   Filed merits on 7/15/24 (petition on 6/5/23)
United States Supreme Court    |   Habeas corpus: Independent state grounds    |    CJLF Amicus Curiae Brief
U.S. Supreme Court case seeking to overturn a murder conviction and death sentence that have already been reviewed many times over many years. Richard Glossip, a motel employee, was twice convicted of hiring another employee to murder the owner of the motel, Barry Van Treese, in 1997. The second conviction and death sentence were in 2004, yet Glossip has been able to delay execution for two decades through repeated litigation. Most recently, the Oklahoma Court of Criminal Appeals reviewed his supposedly new evidence and found that it was neither new nor convincing. Glossip has asked the U.S. Supreme Court to review the case. Strangely, the Oklahoma Attorney General has switched sides and supported Glossip, leaving the Van Treese family to oppose the petition themselves. University of Utah law professor Paul Cassell and CJLF represented the family in asking the court to let the state court's decision stand without further review. The Oklahoma District Attorneys' Association also joined this brief.

After lengthy consideration, the high court took the case up for full briefing and argument but added an issue suggested in our brief. At this stage, CJLF filed its own brief arguing that added issue, i.e., whether the U.S. Supreme Court even has jurisdiction to review the state court's decision. Professor Cassell filed a brief on behalf of the Van Treese family debunking the parties' misrepresentation of the facts of the case. The case is set for argument October 9, 2024.

Grants Pass v. Johnson, No. 23-175
United States Supreme Court    |   Public order: Camping Ordinances    |   DECIDED: 6/28/2024    |    CJLF Amicus Curiae Brief
Petition to the U.S. Supreme Court to review a decision of the Ninth Circuit blocking a city from enforcing an ordinance against camping on public property.

In 2019, the U.S. Court of Appeals for the Ninth Circuit decided in Martin v. City of Boise that the Eighth Amendment's prohibition of cruel and unusual punishment prevents a city from enforcing a prohibition on camping on public property whenever the number of shelter beds in a city is less than the number of homeless people. This simplistic holding overlooks the complex nature of the homelessness problem and removes an important tool for getting addicted homeless persons into the treatment needed to turn their lives around. The problem of encampments in cities has only grown worse in the years since Martin.

CJLF initially filed a brief to support the city's petition to take the case up for full briefing and argument. The Supreme Court granted that petition. We then filed another brief to argue for reversing the Ninth Circuit's decision. We argue that the Ninth Circuit has seriously misinterpreted the Eighth Amendment, extending a dubious old Supreme Court precedent to new territory completed outside the proper scope of that amendment. The Ninth Circuit's decision is bad constitutional law and interferes with the cities' efforts to deal effectively with a difficult problem.

The Supreme Court agreed. The Eighth Amendment has nothing to do with this issue. Local governments can address the homelessness problem with appropriate regard for other constitutional rights but without the crude, high-handed obstruction of the injunctions issued under Martin.

Smith v. Arizona, No. 22-899
United States Supreme Court    |   Evidence: Confrontation    |   DECIDED: 6/21/2024    |    CJLF Amicus Curiae Brief
U.S. Supreme Court case regarding the testimony needed to present crime lab results in court. Jason Smith was arrested during a search authorized by a warrant. He was inside a shed on his father's property that was reeking of marijuana. The officers seized six pounds of marijuana, another substance later confirmed to be methamphetamine, and various paraphernalia. Testing at the state crime lab confirmed that the substances were marijuana and methamphetamine.

The analyst who performed the test no longer worked at the lab at the time of trial, so another forensic scientist reviewed the spectra produced by the gas chromatograph/mass spectrometer and gave an expert opinion that the spectra confirmed the substances. The witness relied on lab notes for information on the tests that were run. Long-established federal and state rules of evidence allow an expert witness to rely on outside sources of information that are routinely relied on in the field.

Smith claims that the reliance on lab notes violates the Confrontation Clause of the Constitution and that the state must produce the now-departed analyst as a witness in order to introduce the expert's opinion as evidence. In a "friend of the court" brief, CJLF argues that the term "witness" as understood at the time the Bill of Rights was adopted does not extend so far as to cover the author of the lab notes. The expert who testified is the witness for the purpose of the Sixth Amendment, and the defendant's right to confront him was honored.

The Supreme Court chose not to decide the issue that CJLF briefed, stating that it had not been sufficiently considered in the lower courts. The Supreme Court reversed the state court on another point and sent the case back for consideration of this issue, among others.

In re Kowalczyk      PENDING     
No. S277910   (Filed on 11/8/23)
California Supreme Court    |   Bail: Denial of bail & ability to pay    |    CJLF Amicus Curiae Brief
California Supreme Court case to review (1) which California constitutional provision governs the denial of bail in noncapital cases — article I, section 12, subdivisions (b) and (c), or article I, section 28, subdivision (f)(3), or both? and (2) whether a superior court can ever set pretrial bail above an arrestee’s ability to pay.

Kowalczyk was charged with vandalism, identity theft, and theft. He had a 100-page rap sheet, with 64 prior convictions, with extensive evidence of having failed to abide by probation conditions, plus 4 DUI convictions. His bail was originally set at $75,000, and eventually a judge denied bail altogether. Kowalczyk filed a habeas petition challenging the denial of bail. While his petition was pending, his case was resolved and he was released from custody. The Court of Appeal dismissed his petition as moot. The California Supreme Court granted Kowalczyk’s petition for review and transferred the case back to the Court of Appeal with directions to vacate the dismissal order and to issue an opinion addressing which constitutional provision governs the denial of bail in noncapital cases.

CJLF joined the case to argue that both article I, section 12, subdivisions (b) and (c), and article I, section 28, subdivision (f)(3), are reconcilable and both constitutional provisions govern the denial of bail in noncapital cases. Furthermore, if money bail is necessary under the circumstances, bail can be set in an amount that may be above an arrestee’s ability to pay when it is necessary to further the state’s compelling interests in adequately assuring an arrestee’s appearance in court and in protecting victim and public safety and there are no other nonmonetary conditions of release that can reasonably protect those interests.

People v. Hardin, No. S277487
California Supreme Court    |   Equal protection clause: Youth offender parole hearing    |   DECIDED: 3/4/2024    |    CJLF Amicus Curiae Brief
California Supreme Court case to review whether excluding 18- to 25-year-old inmates who were convicted of special circumstances murder and sentenced to life without the possibilility of parole (LWOP) from being eligible to receive a youth offender parole suitability hearing violates the equal protection clause. When Hardin was 25 years old he murdered his elderly neighbor in her apartment. He was convcited of first degree murder with the special circumstance that the murder occured during the commission of a robbery. He was sentenced to LWOP. Despite being statutorily ineligible (Penal Code, § 3051, subd. (h)), Hardin filed a motion for a “Franklin hearing” seeking to develop a record for a future youth offender parole suitability hearing. In his motion, Hardin argued that allowing a parole hearing to inmates sentenced to 25 years to life for first degree murder committed between the ages of 18 and 25 while denying the same hearing to inmates, like him, sentenced to LWOP for first degree special circumstances murder committed between the ages of 18 and 25, violates the equal protection clause. The Court of Appeal agreed with Hardin and held that it was unconstitutional to exclude murderers like him from parole eligibility. CJLF joined the case to argue that parole-eligible young adult murderers are not similarly situated to non-parole-eligible young adult murderers and it was rational for the Legislature to expressly exclude the latter group from receiving a youth offender parole suitability hearing.

The Supreme Court agreed. Hardin and other young adult murderers sentenced to LWOP will remain ineligible for parole.

People v. Rojas, No. S275835
California Supreme Court    |   Gangs: Unconstitutional amendment of Prop. 21    |   DECIDED: 12/18/23    |   
CJLF Amicus Curiae Brief
California Supreme Court case to review whether the Legislature unconstitutionally amended the statutory provisions of Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, when they significantly redefined the terms "criminal street gang" and "pattern of criminal gang activity" without the requisite concurrence of two-thirds of the membership of both houses as dictated by the initiative. Rojas was convicted of first degree murder with gang murder special circumstances and active gang participation with gang and firearm enhancements. He was sentenced to life without the possibility of parole, plus 25 years to life, plus three years for the firearm enhancements. While Rojas' appeal was pending, the Legislature enacted Assembly Bill 333, which made significant changes to the definitions of "criminal street gang" and "pattern of criminal gang activity." Rojas argued that the changes applied retroactively to him and required his convictions for active gang participation, the gang murder special circumstance, and his gang and firearm enhancements to be reversed. CJLF joined the case to argue that the definitions of "criminal street gang" and "pattern of criminal gang activity" were integral to the entire comprehensive statutory scheme as enacted by the voters via Proposition 21. Proposition 21 only authorized legislative amendment of its statutory provisions if two-thirds of the membership of both houses concurred in the vote. The Legislature enacted Assembly Bill 333 without a two-thirds concurrence in either house and is unconstitutional. However, the court took a narrow view of the purpose of Proposition 21 and held that the narrowing of these terms was not an amendment.

Assn. of Deputy District Attorneys v. Gascon      PENDING     
No. S275478   (Filed on 5/2/23)
California Supreme Court    |   Prosecutors: Three strikes discretion    |    CJLF Amicus Curiae Brief
California Supreme Court case reviewing an injunction to compel the Los Angeles District Attorney to obey the Three Strikes Law's requirement to charge the prior strikes in all cases. The Three Strikes Law, enacted in 1994, has a provision requiring the district attorney to charge the prior convictions for serious or violent felonies ("strikes") in all cases, but authorizing the trial judge to dismiss them in the interest of justice. The people amended the Three Strikes Law in 2012 to make it less severe, but the mandatory charging provision remains. After his election as district attorney, George Gascón announced that his office would never charge the strikes in any case, effectively negating the law in Los Angeles County. This decision was challenged in court by the Association of Deputy District Attorneys. The superior court ordered Gascón to obey the law, and the Court of Appeal affirmed. The California Supreme Court granted review of the case. CJLF has entered to case to argue that the order was proper, the Three Strikes Law means what it has been understood to say from the beginning, and the people have the constitutional authority to order that the prior convictions be presented to the court in all cases.

Counterman v. Colorado, No. 22-138
United States Supreme Court    |   First Amendment: Threats    |   DECIDED: 6/27/2023    |   
CJLF Amicus Curiae Brief
United States Supreme Court case in which the defendant, Billy Raymond Counterman, was convicted of stalking and was sentenced to 4.5 years in prison for sending thousands of private Facebook messages to a local singer/songwriter ("C.W."). C.W. found the private messages to be "weird" and "creepy" and did not respond to any of them. She blocked Counterman from her Facebook accounts, but he created new accounts and continued to message her. As time went on without response from C.W., Counterman's messages became more angry and alarming, causing C.W. to become extremely fearful and scared. Counterman also alluded to making physical sightings of C.W. in public. Because C.W. was worried that Counterman would show up at her scheduled concerts, she cancelled several shows and obtained a protective order against him. C.W. also discovered that Counterman was on probation for two prior threat convictions. Counterman was arrested and charged with stalking under Colorado Revised Statute 18-3-602(1)(c). Under that statute, the state was required to prove beyond a reasonable doubt that Counterman "knowingly" followed, approached, contacted, placed under surveillance, or made any form of communication with C.W. in a manner that would cause a reasonable person to suffer severe emotional distress and did cause C.W. to suffer from severe emotional distress. Counterman argued that because he did not subjectively intend to threaten C.W., the statute was unconstitutional as applied to his messages because they were protected under the First Amendment. The Colorado Court of Appeals disagreed and held that his messages were unprotected "true threats."

CJLF joined the case to argue that the "true threats" doctrine does not depend on what the speaker's inner subjective purpose was in making a communication. Rather, evaluating a speaker's mental state under an objective knowing standard is all that is constitutionally required. Stalkers cause significant harm to their victims regardless of whether they subjectively intend to induce fear. A stalker's detachment from reality is the prime reason why an objective standard is necessary to punish those who inflict harm on their victims. CJLF further argued that because the Colorado statute of which Counterman was convicted did not include a "credible threat" element, Counterman's conviction did not depend on his communication being a "true threat." Because Colorado has a substantial interest in protecting stalking victims, the law at issue is a valid content neutral, time, place, or manner regulation, and is constitutional.

The Supreme Court partly agreed with CJLF's first argument. The Court held that a reckless disregard of the threatening nature of the speech was sufficient, rejecting the claim that a specific intent to threaten was required. The Court did not reach the "manner" argument.

2021-2022 (filed in)

CJLF v. California Dept. of Corrections & Rehabilitation, No. 34-2022-80003807-CU-WM-GDS
Superior Court, County of Sacramento    |   Prisons: Credits    |   DECIDED: 12/13/2023    |    Memo. of Points and Auth. in Support of the Pet. for Writ of Mandate
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. CJLF, along with individual victims of crime and victims' family members, challenged the regulations on the ground that they conflict with statutes enacted by the Legislature and that Proposition 57 does not authorize CDCR to contradict statutes.

The Superior Court held that Proposition 57 does not authorize CDCR to use these credits to move up the minimum eligible parole date for felons sentenced to life in prison with a possibility of parole. This group includes murderers and third-strikers. The court did not strike down the regulations that authorizes CDCR to issue credits above the maximum allowed by statute for felons sentenced to a fixed term of years. We count this decision as a win because it makes a net change in the status quo in favor of our position, even though the court did not go as far as we asked.

Jones v. Hendrix, No. 21-857
United States Supreme Court    |   Habeas Corpus: Successive § 2255     |   DECIDED: 6/22/2023    |   
CJLF Amicus Curiae Brief
U. S. Supreme Court case in which a habitual felon who illegally possessed a gun sought to make one more challenge to his conviction, after multiple challenges have been rejected over 20 years. Career criminal Marcus Jones had been convicted of 11 prior felonies in 1999 when he bought a gun at a pawnshop and lied about his priors. The circumstances leave little doubt that he knew he could not legally buy a gun, but the jury was not instructed to make that specific finding because the law was not understood to require it at the time. Jones filed one unsuccessful challenge after another for 20 years until the Supreme Court changed the interpretation of the federal statute to require knowledge of the condition that made purchase and possession illegal. In 1996, Congress sharply limited the circumstances in which a convict can make repeated challenges to a criminal judgment under 28 U.S.C § 2255. A clear case of actual innocence is one of the exceptions allowing a repeat attack, but Jones does not qualify for that exception. He now claims that the 1996 act does not really preclude challenges such as his but merely requires that convicts revert to an earlier procedure in a different court. That is, he claims he can file a habeas corpus petition instead of a motion under the law that replaced habeas corpus for these kinds of collateral challenges by federal prisoners. He further claims that the 1996 act would be unconstitutional if it really cut off challenges such as his, despite a Supreme Court opinion the same year that rejected that argument for state prisoners. CJLF had entered the case to argue that there is no real constitutional issue here, and Congress's limit on repeated attack on criminal judgments should be enforced as it was intended. The Supreme Court agreed.

People v. Collins, No. LA009810
Superior Court, Co. of Los Angeles    |   Sentencing: Resentence PC 1170.03    |   DECIDED: 8/22/22    |   
App. to File & Brief Amicus Curiae by CDAA & CJLF
Los Angeles Superior Court case regarding resentencing of a murderer despite the lack of an error in the original sentencing. Scott Collins was convicted in 1993 of murdering Fred Rose and was sentenced to death. In 2022, LA District Attorney George Gascón agreed with the defendant to resentence Collins to life without parole under a provision of the Penal Code that permitted such resentencings in some cases. CJLF joined the victim's family as "friend of the court" in opposing the resentencing, arguing that this provision did not apply to sentences of death or life in prison. Apparently aware that this argument would succeed, opponents of just punishment convinced legislative leaders to ram a new law through the Legislature as a "budget trailer" bill with virtually no notice and an immediate effect, undercutting our argument. As a result, the court had no choice but to grant the resentencing.

Peterson v. Board of Parole Hearings et al., No. 34-2022-80003792
Superior Court of California    |   Juveniles: Life without parole    |   DECIDED: 6/3/22    |   
First Amended Verified Petition for Peremptory Writ of Mandate and/or Prohibition and Complaint for Injunctive Relief
Sacramento Superior Court case challenging the constitutionality of a law that authorizes parole eligibility during a prisoner's 25th year of incarceration for prisoners who were convicted of aggravated murder prior to turning 18 years old and sentenced to LWOP. CJLF filed suit on behalf of Laura Peterson, whose father, Alan Peterson, was murdered in 1996 by then 16-year-old Lawrence Cottle. Under California's 1990 Proposition 115, state judges were given the discretion to sentence juvenile homicide offenders to either 25 years to life or life without the possibility of parole. Cottle was sentenced under that law to life without the possibility of parole. In 2017, the California Legislature passed and former Governor Jerry Brown signed Senate Bill 394 into law. Subject to few exceptions, that law authorized parole eligibility during the 25th year of incarceration for prisoners, like Cottle, who were sentenced to life without the possibility of parole prior to turning 18 years old. Cottle received a parole hearing under this law and was found suitable for parole. Proposition 115 specified that its statutory provisions could only be amended by a two-thirds vote of both houses of the California Legislature. Senate Bill 394 was not passed by the required two-thirds vote in the State Assembly.

CJLF filed a lawsuit on Laura Peterson's behalf to prevent Cottle from being released on parole. Judge Boulware Eurie of the Sacramento Superior Court agreed that Senate Bill 394 unconstitutionally amended Proposition 115 without the required legislative majority, and issued a Writ of Prohibition preventing the Board of Parole Hearings and California Department of Corrections and Rehabilitation from releasing Cottle on parole.

The Respondent appealed. While the appeal was pending, Cottle was resentenced under another law, not at issue in this case. The appeal was dismissed as moot.

Nazir v. Superior Court, No. B310806
Court of Appeal, 2nd Appellate Dist.    |   Courts: Dismissal of pending enhancements    |   DECIDED: 6/2/22    |    CJLF Amicus Curiae Brief
California Court of Appeal case to review whether the District Attorney of Los Angeles County, George Gascon, has the unilateral authority to dismiss sentencing enhancements from pending criminal cases. In December 2020, Gascon replaced Jackie Lacey as District Attorney. On the day he took office, he issued a series of Special Directives. Special Directive 20-08, entitled "Sentencing Enhancements/Allegations" required all Deputy District Attorneys to orally amend the charging documents in pending cases to dismiss previously alleged sentencing enhancements based solely on the new office-wide blanket policy. The trial court refused to dismiss Nazir's firearm enhancement allegations because the only reason for doing so given by the prosecuting attorneys was the Special Directive. In the trial court's opinion, dismissal was unwarranted because California law requires an individualized consideration of a defendant's case and therefore the Special Directive alone was insufficient in and of itself to justify dismissal of Nazir's firearm enhancement allegations. CJLF joined the case upon the request of the Court of Appeal to argue that prosecutorial discretion, albeit broad, is not without limit. Once prosecutors invoke the jurisdiction of the court by filing charging documents, California law prohibits prosecutors from unilaterally dismissing those charges. The decision whether to dispose of previously alleged charges and/or enhancements is purely a matter of judicial discretion. Because the sole basis given by the prosecuting attorneys in this case was the Special Directive, the trial court properly utilized its statutory discretion when it denied their motion to dismiss due to a lack of case specific reasons that would justify such a dismissal.

The Court of Appeal agreed and held that the decision to dismiss a previously alleged sentencing enhancement is a matter of judicial discretion. The Court of Appeal sent the case back to the trial court for an individualized determination of whether this is an appropriate case to dismiss the enhancements in light of Special Directive 20-08 among other factors.

Ramirez v. Collier, No. 21-5592
United States Supreme Court    |   Death penalty: Religious exercise    |   DECIDED: 3/24/22    |    CJLF Amicus Curiae Brief
U. S. Supreme Court review of a Texas murderer’s lawsuit that claims the state is violating his rights by refusing to allow a minister to touch him and pray aloud in the execution chamber while he receives a lethal injection. Ramirez was convicted of the 2004 stabbing murder of a man and the robbery of a woman at knifepoint.

At issue is what limits there are to last-minute litigation over religious accommodations for condemned murderers. CJLF argues that there should be limits, and the Court should settle on what they should be. The Foundation also notes that raising this type of claim at the last minute after decades of review on direct appeal and habeas corpus is an abuse of the legal process. The Foundation's brief argues that the Court should apply it’s 1971 decision in Younger v. Harris to limit civil lawsuits in criminal cases to “unusual circumstances.” The absence of clergy holding hands with a murderer does not meet this standard.

The Court held that Ramirez was likely to prevail on his claim and sent the case back to the lower courts without expressly discussing the limits noted in CJLF's brief. The opinion did note that last-minute litigation could be avoided if states had clearer procedures for deciding these kinds of claims. CJLF will continue to argue for limits on federal court intervention in cases where the state decision process is more clearly defined.

Schubert v. CDCR, No. 34-2021-00301253
Superior Court of California    |   Prisons: Credits    |    First Amended Verified Complaint for Declaratory and Injunctive Relief
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 represented two victims' organizations, Crime Victims United and Citizens Against Homicide, who joined the suit after the judge expressed doubt that the district attorneys had legal standing to make the challenge. The suit claimed that the regulations were illegally adopted and conflict with multiple California laws. It sought an injunction against their enforcement.

The court removed the district attorneys from the suit for lack of standing on March 8, 2022. After further delays, the remaining plaintiffs dismissed their suit on May 16, 2023, so that another case, which was a better vehicle for these claims, could go forward. See CJLF v. CDCR, filed in 2022.

Shinn v. Ramirez, No. 20-1009
United States Supreme Court    |   Habeas corpus: Facts not developed in state court    |   DECIDED: 5/23/22    |    CJLF Amicus Curiae Brief
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, No. 20-443
United States Supreme Court    |   Jury: Voir dire re publicity    |   DECIDED: 3/4/22    |    CJLF Amicus Curiae Brief
U.S. Supreme Court case in which the Boston Marathon Bomber challenged 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. Tsarnaev also claimed that the trial judge erred in excluding marginally relevant evidence that his brother committed an unrelated murder earlier. The Court of Appeals agreed on both points and overturned the sentence.

CJLF 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. CJLF also argued that the judge's ruling on evidence was well within his discretion under the Federal Death Penalty Act, and that provision of the act is constitutional. The Supreme Court on both points, 6-3, and reinstated the sentence.

Brown v. Davenport, No. 20-826
United States Supreme Court    |   Habeas corpus: Harmless error    |   DECIDED: 4/21/22    |    CJLF Amicus Curiae Brief
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. The Supreme Court agreed and held that when a state court has ruled on the merits of a state prisoner's claim, a federal habeas court must apply both tests when granting habeas relief.

2020 (filed in)

People v. McDaniel, No. S171393
California Supreme Court    |   Death penalty: Jury requirements    |   DECIDED: 8/26/21    |    CJLF Amicus Curiae Brief
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    |   Habeas corpus: Successive petitions    |   DECIDED: 6/28/21    |    CJLF Amicus Curiae Brief
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    |    Juveniles: Life without parole    |   DECIDED: 4/22/21    |    CJLF Amicus Curiae Brief | Amicus Curiae Brief of NOVJM & AVCV
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, No. S259999
California Supreme Court    |   Parole: Prop. 57 & violent offenders    |   DECIDED: 1/3/2022    |    CJLF Amicus Curiae Brief
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. The California Supreme Court agreed and held that inmates who are currently serving a term of incarceration for a violent felony are excluded from early parole consideration.

O.G. v. Superior Court, No. S259011
California Supreme Court    |   Juveniles: Unconstitutional amendment of Prop. 57    |   DECIDED: 2/25/21    |    CJLF Amicus Curiae Brief
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
United States Supreme Court    |   Mental state: Recklessness    |   DECIDED: 6/10/21    |    CJLF Amicus Curiae Brief
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
United States Supreme Court    |   Habeas corpus: Recent illegal alien    |   DECIDED: 6/25/20    |    CJLF Amicus Curiae Brief
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
United States Supreme Court    |   Death penalty: Apprendi and weighing    |   DECIDED: 2/25/20    |    CJLF Amicus Curiae Brief
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
United States Supreme Court    |   Civil rights suits: Bivens extraterritoriality     |   DECIDED: 2/25/20    |    CJLF Amicus Curiae Brief
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
United States Supreme Court    |   Juveniles: Life without parole    |   DECIDED: 2/26/20    |    CJLF Amicus Curiae Brief
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
Ninth Circuit Court of Appeals    |   Counsel: Prejudiced lawyer    |   DECIDED: 1/15/2020    |    CJLF Amicus Curiae Brief
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
Ninth Circuit Court of Appeals    |   Death penalty: Stay after change in method    |   DECIDED: 9/16/21    |    Petition for Writs
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
United States Supreme Court    |   Jurisdiction: Standing to appeal    |   DECIDED: 6/17/19    |    CJLF Amicus Curiae Brief
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.