On the first five years
“Once you’re proven guilty and sentenced to death, which takes a significant amount of time to begin with, the state gets involved because all death penalty cases in California are given an automatic appeal that goes to directly to the state supreme court.  However, by the time appellate counsel is appointed by the court and an appeal is filed, the court will likely not hear your case for more than five years.”

On the supply of lawyers
“They may not hear your appeal for that long because it takes that long for you to be assigned an appellate attorney. The going rate for an appellate attorney on death row cases is approximately $125 per hour, which may sound like a lot, but when you consider they must have significant previous experience appealing capital cases, it’s really quite below the norm. So the first problem is that there are simply not enough lawyers for the number of death penalty appellate cases because not enough lawyers are inclined to do this kind of work. The second problem is that there are only seven members on the California Supreme Court, and they are inundated with cases. Seven justices can only do so much each year. So hypothetically, if they were to go through 100 cases a year, only a small fraction of those would include death penalty cases.”

On steps after the State Supreme Court
“Assuming the court does not overturn your sentence, you can attempt to appeal the California Supreme Decision to the U.S. Supreme Court, but they only hear a very select number of cases, so the next step is to petition for a writ of habeas corpus. Habeas corpus means “to free the body” in Latin. These petitions usually start with the California Supreme Court where an argument can be made for your sentence to be overturned, literally freeing the body, for a variety of reasons: new evidence has come to light, evidence of jury misconduct, prosecutorial misconduct, ineffective counsel, and so on.”

On moving to the federal level
“Assuming once again your sentence is not overturned by the state Supreme Court, you may then initiate a petition for a writ of habeas corpus to the federal courts, claiming a violation of a U.S. Constitution right.  In California, these cases are heard by the applicable District Court and then by the 9^th Circuit Court of Appeals, which is based in San Francisco. That court’s determination could get a case remanded all the way back to the trial court which initially heard the case. By this point in time, more than 7 to 10 years could easily have passed since the defendant had been convicted and sentenced.”

On new motions
“After the Ninth Circuit Court of Appeals denies your petition for a writ of habeas corpus, you can attempt to appeal this decision to the U.S. Supreme Court, but the likelihood of this court reviewing the lower courts’ decision is extremely low. During the time since the conviction, with appeals likely exhausted, the search continues for new evidence or other factual or legal issues, which then can be used as the basis for a new petition for a writ of habeas corpus. This process continues over and over again for years.”

On the governor’s last-minute call
“Then, the key executive officer in the state – the governor – has the ability to commute the death sentence at his or her discretion. That’s why you always see scenes in movies as the prisoner is entering the death chamber and everyone waits to see if the phone will ring with the governor on the line, canceling the execution with just minutes to spare. That’s also why Gov. Schwarzenegger was under such scrutiny – he had the option to grant clemency and change Williams’ sentence to life without possibility of parole. It has nothing to do with the judicial appeals process – those are done through the courts; this is a decision that is at the sole discretion of the governor. And once a sentence has been commuted, it cannot be changed back. So, for example, say Gray Davis had commuted a death row convict’s sentence, Gov. Schwarzenegger could not have the sentence changed back to death.”

On the wait as cruel and unusual
“I think the latest poll showed that somewhere between 60 to 70 percent of Californians support the death penalty. So politically, I doubt the state’s death penalty policy will change anytime soon. But the irony then, is that it takes so long to go through the appeals and habeas corpus process that few executions actually occur quickly. There have been only 12 executions in the state since the death penalty was legalized. And the number of death row inmates, 646 as of my last check, will continue to grow. The increasing pressure on the judicial system to continue to handle these appeals and petitions for writs of habeas corpus, while ensuring no mistakes have been made along the way, especially since the penalty is so grave, will continue to be more and more challenging. The death penalty process takes so long that some have even argued that the length of time convicted prisoners must sit on death row is cruel and unusual punishment, a violation of the eighth amendment.”

On the public policy logjam
“In the same amount of time that California has executed 12 people, Texas has executed 355. They obviously do not have the same sort of problem of cases piling up that we do. Some might say they’re more efficient; others might challenge how they are getting it done. Either way, something certainly needs to be done here in terms of public policy on how we resolve and manage death row. Unfortunately, I don’t have the answers. One possibility would be better compensation for appellate attorneys to entice them to take such cases, but like the overall problem, no one wants to invest money in speeding up the process.  The number of people on death row is projected to increase, so no matter what is decided, we need to do something before this challenge becomes even more unmanageable.”