Brief Bank # B-808 (Re: DP II [Challenge To California Death Eligibility Scheme].)
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CASE NO. 98-99025, 98-99026
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCH 26, 1999
JAMES LESLIE KARIS,
Petitioner –
Appellee/Cross-Appellant,
v.
ARTHUR CALDERON, Warden of the
California State Prison, San Quentin;
JAMES GOMEZ, Director of the California
Department of Corrections,
Respondents –
Cross-Appellants
/Appellees.
________________________________________/
On Appeal from the United States District Court
for the Eastern District of California
No. CIV-S-89-00527 LKK JFM
The Honorable Lawrence K. Karlton, United States District Judge
Edited excerpt from
PETITIONER’S OPPOSITION BRIEF AND
OPENING BRIEF ON CROSS-APPEAL
DEATH PENALTY CASE
NORMAN C. HILE (State Bar No. 57299)
ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000
Sacramento, CA 95814-4407
Telephone: (916) 447-9200
Attorneys for Petitioner -Appellee/Cross-Appellant
JAMES LESLIE KARIS
BECAUSE THE CALIFORNIA SPECIAL CIRCUMSTANCES SCHEME DOES
NOT MEANINGFULLY NARROW DEATH ELIGIBILITY IT VIOLATES
THE 8TH AMENDMENT
Introduction
Supreme Court jurisprudence is clear: only those death penalty schemes that “genuinely narrow” the class of individuals eligible for the death penalty adequately protect against the risk of arbitrary death sentences. See, e.g., Furman v. Georgia, 408 U.S. 238 (1972); Zant v. Stephens, 462 U.S. 862, 877 (1983); see also Buchanan v. Angelone (98) 522 US 269 [139 LEd2d 702; 118 SCt 757] [narrowing of death eligibility is the critical requirement for compliance wiht the 8th Amendment].) However, California Penal Code section 190.2 – the sole provision purporting to narrow California’s death- eligible class – completely fails to achieve this result.
The constitutionality of California’s death penalty eligibility process has yet to be decided by the federal courts. [Footnote 1] In Tuilaepa v. California, 512 U.S. 967 (1994), the United States Supreme Court upheld another component of California’s death penalty scheme, but explicitly recognized that the constitutional adequacy of California’s death penalty eligibility provisions – those under attack here – were not (and, implicitly, had not been) before the Supreme Court. Id. at 975 (“Petitioners do not argue that the special circumstances found in their cases were insufficient, so we do not address that part of California’s scheme . . . .”); id. at 981 (Stevens, J., concurring) (emphasizing that the Supreme Court’s holding rested on the unchallenged, unaddressed assumption that the death penalty eligibility provisions were constitutional). In dissent, Justice Blackmun emphasized that the Court had never given the California system “a clean bill of health,” and added:
[T]he Court’s opinion says nothing about the constitutional adequacy of California’s eligibility process, which subjects a defendant to the death penalty if he is convicted of first-degree murder and the jury finds the existence of one “special circumstance.” By creating nearly 20 such special circumstances, California creates an extraordinarily large death pool. Because petitioners mount no challenge to these circumstances, the Court is not called on to determine that they collectively perform sufficient, meaningful narrowing.
Id. at 994.
1. Under Furman v. Georgia, Only Those Death Penalty Schemes That Adequately Narrow The Class Of Death-Eligible Defendants Can Withstand Constitutional Scrutiny.
Under Furman v. Georgia, 408 U.S. 238 (1972), when a death penalty scheme gives prosecutors and juries unlimited discretion in the selection process and makes too many defendants death-eligible but selects too few – or, in other words, when the scheme creates a “death sentence ratio” that is too low – the scheme creates an unconstitutional risk of arbitrariness. [Footnote 2] Only those death penalty schemes that, by rational and objective criteria, “genuinely narrow” the death-eligible class will withstand constitutional scrutiny. See Zant, 462 U.S. at 877. [Footnote 3] The Supreme Court several times has struck down death penalty eligibility provisions failing to satisfy this exacting standard. See Godfrey v. Georgia, 446 U.S. 420, 426 (1980) (striking down provision making all “outrageously or wantonly vile, horrible and inhuman” murders death eligible); Maynard v. Cartwright, 486 U.S. 356, 359 (1988) (striking down provision rendering all “especially heinous, atrocious, or cruel” murders death eligible); Shell v. Mississippi, 498 U.S. 1 (1990) (per curiam) (same).
Significantly, Furman provided concrete guidance as to exactly what death penalty ratio will be impermissibly low and create the substantial risk of arbitrary application. Both the dissent and the majority in Furman agreed that the death penalty statutes at issue had historically resulted in death sentences for 15% – 20% of death-eligible defendants. See Furman, 408 U.S. at 386 n. 11 (Burger, C.J., dissenting) (“[I]t is thought that from 15% to 20% of those convicted of murder are sentenced to death in States where it is authorized.”); id. at 435-36 n.19 (Powell, J., dissenting) (referring to studies concluding that approximately 20% of death-eligible defendants receive death sentences); id. at 309 & n.10 (Stewart, J., concurring) (citing to Chief Justice Burger’s statements as to the frequency of death sentences relative to death-eligibility in concluding that the imposition of death was “unusual”); Gregg v. Georgia, 428 U.S. at 153, 182 n.26 (“It has been estimated that before Furman, less than 20% of those convicted of murder were sentenced to death in those States that authorized capital punishment.”). [Footnote 4] It was this 15% to 20% death penalty ratio that the majority found impermissibly low to withstand constitutional scrutiny.
2. California’s Death Penalty Scheme Unconstitutionally Fails To Adequately Narrow The Class Of Death-Eligible Defendants.
a. The Legislative History Of California’s Death-Eligibility Provision.
In 1977, in response to Furman and Gregg, the California Legislature reestablished the death penalty in California with a scheme requiring, for death-eligibility, that the jury find a first-degree murder and the existence of one of twelve “special circumstances.” 1977 Cal. Stat., ch. 316, pp. 1255-66. According to the California Supreme Court, the special circumstances in the 1977 law, set forth in Penal Code section 190.2, were intended to perform the narrowing function required by Furman. People v. Green, 27 Cal. 3d 1, 48 (1980) overruled on other grounds by People v. Hall, 41 Cal. 3d 826 (1986). Under the revised statute, the court explained, death-eligibility was the exception reserved for “extraordinary cases.” Id. In 1978, the voters replaced the 1977 law with the Briggs Initiative. While the 1977 law arguably was an attempt to comply with Furman, the Briggs Initiative was not. According to its author, State Senator John V. Briggs, the initiative was intended to “give Californians the toughest death-penalty law in the country.” California Journal Ballot Proposition Analysis, 9 Cal. J. (November 1978) at 5. The Briggs Initiative’s proponents expressly intended the amended “special circumstances” provision to apply to all murderers:
And, if you were to be killed on your way home tonight simply because the murderer was high on dope and wanted the thrill, the criminal would not receive the death penalty. Why? Because the Legislature’s weak death penalty law does not apply to every murderer. Proposition 7 would.
1978 Voter’s Pamphlet at 34 (emphasis added). [Footnote 5]
The Briggs Initiative drastically expanded death-eligibility. It more than doubled the number of special circumstances contained in Penal Code section 190.2. It greatly increased death-eligibility for accomplices by eliminating the previous actual presence and actual aid requirements and substantially broadened the definitions of prior special circumstances by eliminating the across-the-board intent to kill requirement of the 1977 law. Thus, after the Briggs Initiative, the majority of the special circumstances, including the felony-murder circumstances, apply even in the absence of proof that the murder was intentional.
At the same time, the Briggs Initiative carries forward into the present death penalty scheme all of the discretionary aspects of the pre-Furman California scheme. The prosecutor has complete discretion whether “to pursue or withhold capital charges at the outset.” People v. Keenan, 46 Cal. 3d 478, 506 (1988), cert. denied, 490 U.S. 1012 (1989). The jury exercises wide discretion whether or not to sentence a death-eligible murderer to death. People v. Osband, 13 Cal. 4th 622, 703 (1996), cert. denied, 519 U.S. 1061 (1997); see Tuilaepa, 512 U.S. at 979-80 (“unbridled discretion”). [Footnote 6] The California Supreme Court does not review this exercise of discretion by engaging in intercase proportionality review. People v. Lang, 49 Cal. 3d 991, 1043 (1989), cert. denied, 498 U.S. 881 (1990). Thus, despite the Briggs Initiative’s substantial expansion of Penal Code section 190.2, its special circumstances remain the only device even arguably implementing the Furman mandate under California’s capital sentencing scheme.
b. The Plain Language Of California’s Death Penalty Eligibility Provisions.
California’s death penalty scheme at the time of Petitioner’s sentencing had nineteen separately numbered special circumstances encompassing twenty-six categories of first-degree murderers. Cal. Penal Code § 190.2. Standing alone, the existence of no less than twenty-six special circumstances for death-eligibility bespeaks the tremendous breadth of California’s death-eligible provisions. However, the scope of Penal Code section 190.2 is only fully appreciated when one considers two additional remarkable aspects of California’s death eligibility scheme.
First, California makes felony-murder a special circumstance. See People v. Anderson, 43 Cal. 3d 1104, 1140-47 (1987). Any person who kills “in the commission of, or attempted commission of, or the immediate flight after committing or attempting to commit” any of nine listed felonies is not only guilty of first-degree murder but also is automatically death-eligible. Cal. Penal Code § 190.2(a)(17). Thus, virtually all felony-murderers will be automatically death-eligible, regardless of their mental state or the surrounding circumstances. People v. Dillon, 34 Cal. 3d 441, 477 (1983) (“[F]irst degree felony murder encompasses a far wider range of individual culpability than deliberate and premeditated murder. It includes not only the latter, but also a variety of unintended homicides resulting from reckless behavior, or ordinary negligence, or pure accident.”). Significantly, the Ninth Circuit has struck down a federal death penalty provision under Furman precisely because it – like the California death penalty scheme at issue here – failed to distinguish among levels of culpability. United States v. Cheely, 21 F.3d 914, 918 (9th Cir. 1994) (holding that a death penalty statute that is broad enough to authorize death for persons guilty of no more than involuntary manslaughter impermissibly fails to narrow because “[w]hen juries are presented with a broad class, composed of persons of many different levels of culpability, and are allowed to decide who among them deserves death, the possibility of aberrational decisions as to life or death is too great”; see also Wade v. Calderon, 29 F.3d 1312, 1320 (9th Cir. 1994), cert. denied, 513 U.S. 1120 (1995), [I]f interpreted without an “intent to torture” element, California’s torture-murder special circumstance would be unconstitutional since it “would be capable of application to virtually any intentional, first-degree murder”]; see also People v. Davenport, 41 Cal. 3d 247, 265 (1985).) Compounding this problem is the exceptional breadth of California’s underlying felony-murder rule. In contrast to others, California’s felony-murder rule applies to the most common felonies resulting in death, particularly robbery and burglary.
Second, California’s special circumstances provision renders all “lying in wait” murderers death penalty eligible. Although lying in wait generally connotes an ambush from hiding, the California Supreme Court has interpreted this special circumstance far more expansively to include essentially any murder in which the defendant conceals his purpose to kill the victim and thereafter launches a surprise attack on the victim from a position of advantage. People v. Morales, 48 Cal. 3d 527, 557, cert. denied, 493 U.S. 984 (1989). [Footnote 7] No empirical evidence is required to appreciate that the lying in wait special circumstance will attach to the overwhelming majority of premeditated murders. It will be a rare premeditated murder where the defendant reveals his purpose in advance or fails to try to take the victim from a position of advantage:
[The lying-in-wait special circumstance] is so broad in scope as to embrace virtually all intentional killings. Almost always the perpetrator waits, watches, and conceals his true purpose and intent before attacking his victim; almost never does he happen on his victim and immediately mount his attack with a declaration of his bloody aim.
Morales, 48 Cal. 3d at 575 (Mosk, J., dissenting); see also People v. Ceja, 4 Cal. 4th 1134, 1147 (1993) (Kennard, J., concurring). Not surprisingly, the lying in wait special circumstance has been applied to a wide range of intentional first-degree murders ranging from true ambush, see People v. Roberts, 2 Cal. 4th 271, cert. denied, 506 U.S. 964 (1992), to murders where the defendant follows the victim for a period before killing, see People v. Edwards, 54 Cal. 3d 787 (1991), cert. denied, 506 U.S. 841 (1992), lures the victim into a trap, see People v. Morales, 48 Cal. 3d 527, cert. denied, 493 U.S. 984 (1989); People v. Sims, 5 Cal. 4th 405 (1993), cert. denied, 512 U.S. 1253 (1994), engages the victim in conversation and then shoots the victim from behind, see People v. Webster, 54 Cal. 3d 411 (1991), cert. denied, 503 U.S. 1009 (1992), or kills the victim in his or her sleep. See People v. McDermand, 162. Cal. App. 3d 770 (1984).
California’s inclusion of the felony-murder and lying in wait special circumstances makes its death-eligibility provision truly exceptional. By way of comparison, only seven other states include felony-murder simpliciter [Footnote 8] and three other states include lying in wait [Footnote 9] as special circumstances supporting imposition of the death penalty. Perhaps most telling, only one other state – Montana – has a death penalty eligibility provision that includes both felony-murder simpliciter and lying in wait. However, unlike California, Montana substantially limits its felony-murder special circumstance, applying it to only two relatively less common underlying felonies (aggravated kidnapping and sexual assault on a minor). [Footnote 10] By any measure, California’s special circumstances provision is extraordinary in its breadth and inclusiveness.
In contrast to the broad sweep of the special circumstances categories, the seven first-degree murder categories that are not death-penalty eligible are exceedingly narrow: (1) malicious killing by means of a destructive device which was not planted, hidden, concealed, mailed or delivered; [Footnote 11] (2) malicious, but unintentional, killing by poison; (3) malicious, but unintentional, killing by lying in wait; (4) malicious, but unintentional, killing by torture; [Footnote 12] (5) felony-murder mayhem; (6) felony-murder charged to an accomplice who did not intend the killing; and (7) simple premeditated murder.
As might be expected, these forms of first-degree murder have appeared only infrequently in published California cases. See Supplemental Declaration of Steven F. Shatz attached hereto as Exhibit A (reviewing all published California cases since 1972 and finding no cases falling into categories (1), (2), (5) listed above; only one category (3) case; only three category (4) cases; and only two category (6) cases). The only category that even appears to have breadth – simple premeditated murder – is rendered deceivingly narrow by California’s broad special circumstances provision. A simple premeditated murder can only be one in which the defendant did not murder one of the victims, with one of the motives, by one of the means, or during one of the felonies, set forth in Penal Code section 190.2. In addition, because of the lying in wait special circumstance, only planned murders in which the killer simply confronts and immediately kills the victim or advises the victim in advance of his intent to kill can possibly be non-death eligible for simple premeditated murders. Given these substantial limitations, simple premeditated murders – like the other non-death eligible categories – constitute a distinct minority of premeditated murders. Exhibit A.
c. Narrowing The Class – The Empirical Evidence.
What is clear from the intent of the Briggs Initiative drafters and an analysis of the statutory scheme is confirmed by empirical evidence – under the Briggs Initiative, death-eligibility is too broad and the consequent death sentence ratio too low to satisfy the dictates of Furman. To demonstrate this, Petitioner presented the District Court with the declaration and findings of Professor Steven F. Shatz, who examined almost 500 appealed murder conviction cases covering a five year period to determine the percentage of first-degree murder convictions with facts encompassed by the twenty-six special circumstances set forth in Penal Code section 190.2. Exhibit A.
Professor Shatz found that, disregarding the cases in which the appellate court did not sufficiently state the facts to permit categorization of the case, approximately 91% of the non-death judgment published first-degree murder cases and 82% of the unpublished first-degree murder cases were special circumstances cases. Exhibit A. [Footnote 13] When all possible factual assumptions are resolved in favor of the constitutionality of the Briggs Initiative, Professor Shatz’s findings demonstrate that at least 76% of convicted first-degree murderers were death-eligible. [Footnote 14]
Although, even by the most conservative estimate, 76% of first-degree murderers are death-eligible, the information supplied by Respondent demonstrates that only 9.5% of defendants convicted of first-degree murder in the same time period actually received a death sentence. When combined, these percentages reveal that the death sentence ratio under the Briggs Initiative was only 12.5%. Thus, even under assumptions that unrealistically favor the constitutionality of California’s statute, Professor Shatz’s empirical evidence demonstrates that California’s death sentence ratio at the time of the murder charged to Petitioner was far below that found unconstitutional in Furman.
3. The Claim Is Sufficiently Proven Based On The Shatz Study.
In Wade v. Calderon, 29 F.3d 1312, 1320 (9th Cir. 1994), cert. denied, 513 U.S. 1120 (1995), [I]f interpreted without an “intent to torture” element, California’s torture-murder special circumstance would be unconstitutional since it “would be capable of application to virtually any intentional, first-degree murder”]; see also People v. Davenport, 41 Cal. 3d 247, 265 (1985).
Just as in Wade and United States v. Cheely, 36 F.3d 1439 (9th Cir. 1994) the present no-narrowing challenge may be upheld by simply examining California’s death penalty scheme without empirical evidence. It is apparent from the text of the Penal Code sections 189 and 190.2, as they read in 1981, that virtually all first-degree felony-murderers were death-eligible. [Footnote 15] It is apparent, that under the California Supreme Court’s interpretation of “lying in wait,” most premeditated murders are lying in wait murders. Likewise, even a cursory review of published opinions makes apparent the virtual non-existence of first-degree murder convictions from the narrow class of such convictions that are not death-eligible.
In sum, it is abundantly clear without resort to empirical evidence that the Briggs Initiative does not genuinely narrow the death-eligible class. Indeed, the Briggs Initiative was enacted specifically to apply to “every murderer” and to undo the California Legislature’s attempt to narrow its death penalty eligibility provision to comply with Furman.
Second, the District Court erred in dismissing the empirical evidence presented in Professor Shatz’s declaration. The District Court disregarded Professor Shatz’s declaration because Shatz “does not have demonstrated expertise in statistics or empirical research”; Shatz’s case sample was not shown to be adequate or randomly selected; Shatz defined categories to suit his conclusions; Shatz’s exclusion of cases with insufficient facts might have invalidated his sample; and “[t]he question of whether reasonable jurors would find, beyond a reasonable doubt, special circumstances in the cases studied requires a more complex analysis than that presented.” ER 507-508.
The District Court’s difficulties with Professor Shatz’s study reflect a fundamental misunderstanding of the purpose and methodology of the study. It was not a study of whether jurors would find special circumstances in a particular case, any more than it was a study of whether prosecutors would charge special circumstances in a particular case. Such a study, plumbing the motivations of the participants in the death penalty decision-making process, would have required a complex social science study akin to the famous Baldus study of the death penalty in Georgia. See David C. Baldus, George Woodworth & Charles A. Pulaski, Jr., Equal Justice and the Death Penalty: A Legal and Empirical Analysis (1990). However, the question of how prosecutors or jurors would deal with particular cases is not the relevant question in a no-narrowing challenge.
Moreover, the no-narrowing challenge is supported by the Shatz study. A no-narrowing challenge is a challenge to the amount of discretion that a particular scheme gives to prosecutors and jurors. The relevant question is whether, on a particular set of facts, a reasonable juror could find beyond a reasonable doubt that a first-degree murderer is death-eligible. Thus, in Godfrey v. Georgia, 446 U.S. 420, 428-29 (1980), the Supreme Court upheld a no-narrowing challenge because “[a] person of ordinary sensibility could fairly characterize almost every murder as ‘outrageously or wantonly vile, horrible and inhuman.’” (emphasis added). [Footnote 16] That question is not a behavioral science question, but a legal question.
Professor Shatz’s study answered that question by matching the special circumstances of Penal Code section 190.2 against the facts of numerous first-degree murder cases and thereafter tabulating the percentage of cases in which special circumstances were, or could have been, found beyond a reasonable doubt. The expertise required for such a study is legal expertise, particularly an understanding of murder and special circumstances, and the ability to add and calculate percentages. [Footnote 17] Thus, the unrefuted findings in Professor Shatz’s study are valid if (1) his case sample is representative; (2) he has correctly characterized the cases within the sample; and (3) his resulting calculations are correct. Professor Shatz’s methodology is unimpeachable in all three respects.
Professor Shatz’s exhaustive sample was more than adequate to support his straightforward findings. Shatz reviewed nearly 500 murder conviction cases. This sample, which includes all published murder cases statewide and unpublished murder cases from the First Appellate District from 1980 to 1984, is far more extensive than those used in other death penalty studies in which complex statistical analyses required even larger data bases than that required for Professor Shatz’s simple tabulations. [Footnote 18]
4. Conclusion
As the linchpin of the death penalty’s constitutionality, the special circumstances narrowing scheme should be closely scrutinized. Under such scrutiny, California’s scheme does not pass constitutional muster and should be declared unconstitutional.
OPENING BRIEF FOOTNOTES
Footnote 1: The California Supreme Court has rejected challenges to the constitutionality of California’s death penalty eligibility process. See, e.g., People v. Arias, 13 Cal. 4th 92, 186-87, cert. denied, 117 S. Ct. 2408 (1997).
Footnote 2: The Court’s premise – that unlimited discretion in this area inevitably leads to arbitrary and capricious results – has since been validated by at least one empirical study. See David C. Baldus, George Woodworth & Charles A. Pulaski, Jr., Equal Justice and the Death Penalty: A Legal and Empirical Analysis 80-88 (1990).
Footnote 3: In theory, raising a state’s death sentence ratio could be accomplished either by narrowing the death-eligible class or by raising the number of death sentences. In stating the Court’s understanding that narrowing of the death-eligible class would have to occur, Justice White implicitly rejected the possibility that a state would raise its death sentence rate enough over time to satisfy Furman. His assumption that death penalty rates would not rise significantly has proven correct. Studies have shown that the public within a given state desires a certain level of death penalty activity and that this level is relatively stable over time, irrespective of the particular death penalty scheme in effect. David Baldus, When Symbols Clash: Reflections on the Future of the Comparative Proportionality Review of Death Sentences, 26 Seton Hall L. Rev. 1582, 1591 (1996).
Footnote 4: Post-Furman research indicates that the pre-Furman death sentence ratio in Georgia was 15%. See Baldus, Woodworth & Pulaski, supra note 78, at 80. Although the plurality in Furman and Gregg referred to the percentage of “those convicted of murder” who were sentenced to death, Furman and Gregg both involved the Georgia scheme, which did not divide murder into degrees and made all murderers death-eligible. In fact, the justices were concerned with the percentage of death-eligible convicted murderers sentenced to death. See Furman, 408 U.S. at 435-36, n.19 (Powell, J., concurring) (referring to the percentage of cases where “death was a statutorily permissible punishment”); Woodson v. North Carolina, 428 U.S. 280, 295-96 (1976) (plurality) (referring to the frequency of death verdicts in first-degree murder conviction cases in North Carolina).
Footnote 5: Under California law, ballot arguments constitute the legislative history used to interpret initiative measures. See, e.g., Long Beach City Employees Ass’n. v. City of Long Beach, 41 Cal. 3d 937, 943 n.5 (1986).
Footnote 6: It is legally settled that the factors the jury considers during the selection process (e.g., the process by which the jury decides whether to sentence a defendant to death after it has concluded that the defendant is death eligible) play no role whatsoever in the required narrowing process. People v. Bacigalupo, 6 Cal. 4th 457, 467 (1993) (“The distinction the high court has drawn between the ‘narrowing’ and ‘selection’ aspects of a capital sentencing scheme underlay our conclusion in Bacigalupo I that the section 190.3 factors of California’s capital penalty statute, which pertain only to sentence selection and play no role in narrowing the class of murderers eligible for the death penalty, were not subject to the Eighth Amendment standard used to evaluate death eligibility criteria.”), cert. denied, 512 U.S. 1253 (1994); ER507 (recognizing that, because the selection factors are “broad and open-ended,” the narrowing “required by the constitution” takes place at the “eligibility stage”).
Footnote 7: The lying in wait special circumstance also requires that the murderer “watch and wait for an opportune time to act.” However, the California Supreme Court has interpreted this element to require only that the watching and waiting be “such as to show a state of mind equivalent to premeditation or deliberation.” People v. Edelbacher, 47 Cal. 3d 983, 1021 (1989) (emphasis omitted).
Footnote 8: Florida (Fla. Stat. Ann. § 782.04(1)(a)(2)-(3) (West Supp. 1997), § 921.141(5)(d) (West Supp. 1997)); Georgia (Ga. Code Ann. § 16-5-1(c) (1996), § 17-10-30(b)(2) (Supp. 1996)); Maryland (Md. Ann. Code art. 27, §§ 408-410, 412, 413(d)(4) and (10) (1996)); Mississippi (Miss. Code Ann. of 1957 §§ 97-3-19(2)(e) and (f), 99-19-101(5)(d) (1994)); Montana (Mont. Code Ann. §§ 45-5-102(1)(b), 46-18-303(7) and (9) (1995)); Nevada (Nev. Rev. Stat. Ann. §§ 200.020(1)(b), 200.033(4) (1997)); North Carolina (N.C. Gen. Stat. § 14-17 (Supp. 1996), § 15A-2000(e)(5) (1988)).
Footnote 9:Colorado (Colo. Rev. Stat. §16-11-103 (5)(f) (Supp. 1996)); Indiana (Ind. Code 35-50-2-9 (b)(3)); Montana (Mont. Code Ann. 46-18-303(4)).
Footnote 10: Mont. Code Ann. 46-18-303(7), (9).
Footnote 11: If the destructive device were planted, hidden, concealed, mailed or delivered, the killing would be covered by the special circumstance set forth in California Penal Code section 190.2(a)(4) or section 190.2(a)(6).
Footnote 12: If a killing by poison, lying in wait, or torture were intentional, the killing would be covered by the special circumstance set forth in California Penal Code Section 190.2(a)(19), (a)(15) or (a)(18).
Footnote 13: Shatz partially validated these percentages by examining both published and unpublished second degree murder convictions. If the choice of the first-degree murder case sample excluded an atypical number of factually “non-special circumstance” first-degree murder cases, presumably those cases would have shown up as second degree murder convictions. However, Professor Shatz’s survey of second-degree murder convictions discovered no significant number of cases which, on their facts, were non-special circumstance first-degree murders. Professor Shatz also offered his expert opinion that the use of appellate cases generally would, if anything, overstate the narrowing effect of the scheme since unappealed cases are usually plea bargained cases and “the inducement to a defendant to plead guilty to murder is often the realistic fear that the prosecution can prove special circumstances.” SER 5986.
Footnote 14: This figure assumes that only 82% of first-degree murders were factually special circumstances (the figure for unpublished cases). Absent any indication that unpublished cases are more representative than published cases, the actual percentage of first-degree murderers that were death eligible likely fell somewhere between the 82% figure for unpublished cases and the 91% figure for published cases. However, out of an abundance of caution, the 82% figure is assumed for the purposes of this discussion.
The overall 76% figure also assumes that juveniles, who are not death-eligible, see Cal. Penal Code § 190.5, constituted 9.7% of first-degree murderers. From 1981 to 1986, juveniles accounted for 9.7% of homicide arrests. Department of Justice/Division of Law Enforcement, “Crime and Delinquency in California, 1986,” at 149. While the Department of Justice does not maintain data on the number of juveniles convicted of first-degree murder, juveniles likely accounted for a smaller than 9.7% of first-degree murder convictions. Because of their age, juveniles are more likely to plead to, or be convicted of, a lesser charge. See Supplemental Shatz Decl. (concluding after surveying published cases, unpublished cases and trial court cases that 2.5% to 3.5% of non-death judgment first-degree murderers were juveniles at the time of the murder). Consequently, the use of 9.7% as an estimate of convicted juvenile first-degree murderers again substantially overstates the narrowing effect of the scheme.
Footnote 15: The only exceptions were for mayhem felony-murderers and accomplices who did not intend to kill.
Footnote 16: This Court, in upholding the “no-narrowing” challenge in Wade, stated the issue in similar terms in finding that the torture-murder special circumstance was unconstitutional because it was “capable of application to virtually any intentional, first-degree murder . . .” 29 F.3d at 1319 (quoting Davenport, 41 Cal. 3d at 265 (emphasis added)).
Footnote 17: Professor Baldus, an acknowledged expert in social science research, has recently made exactly this point, explaining the difference between “complex statistical analyses” and the “simple tabulation” required to calculate a death sentence ratio. See David Baldus, When Symbols Clash: Reflections on the Future of the Comparative Proportionality Review of Death Sentences, 26 Seton Hall L. Rev. 1582, 1598-1605 (1996). Using New Jersey for purposes of illustration, he cited with approval “simple tabulations” by the Administrative Office of the New Jersey courts of the number of “defendants who are death-eligible under current law” and of the consequent death sentence ratios. Id. There is no reason to doubt Professor Shatz’s ability to do this same simple tabulation.
Footnote 18: See, e.g., Raymond Paternoster, Race of Victim and Location of Crime: The Decision to Seek the Death Penalty in South Carolina, 74 Journal of Criminal Law and Criminology 754 (1983) (study of 321 capital cases in South Carolina); A Study of the California Penalty Jury in First-Degree-Murder Cases, 21 Stan. L. Rev. 1297 (1969) (study of 238 first-degree murder cases in California).
EXHIBIT A
SUPPLEMENTAL DECLARATION OF STEVEN F. SHATZ
I, STEVEN F. SHATZ declare as follows:
1. I am the Philip and Muriel Barnett Professor of Trial Advocacy at the University of San Francisco School of Law. I am providing this declaration, at the request of counsel for the petitioner in Karis v. Calderon, CIV-S-89-0527 LKK/JFM (E.D. Calif.), to supplement my declaration of September 29, 1995, and I refer to that declaration (¶ 1) for a statement of my experience and expertise in the area of California criminal law.
2. I have recently completed a study of California cases involving murder convictions. My purpose was to determine: (1) the degree to which the special circumstances listed in California Penal Code § 190.2 limit death-eligibility for persons convicted of first degree murder and (2) to determine what percentage of persons convicted of first degree murder who are statutorily death-eligible are sentenced to death, i.e., California’s death sentence ratio.
3. My inquiry was based on the understanding that, under Furman v. Georgia, 408 U.S. 238 (1972) and subsequent cases, particularly Zant v. Stephens, 462 U.S. 862, 877-78 (1983), states must “genuinely narrow” the death-eligible class and that California relies upon the special circumstances provisions of Penal Code § 190.2 to perform the required “narrowing” function. People v. Bacigalupo, 6 Cal.4th 457, 467-68 (1993), cert. denied, 512 U.S. 1253 (1994).
4. My conclusions regarding the constitutionality of the California scheme are informed by the fact that in Furman the justices addressed death penalty schemes where approximately 15-20% of those convicted of capital murder were actually sentenced to death (see 402 U.S. at 309, n. 10 (Stewart, J., concurring); id. at 386, n. 11 (Burger, C.J., dissenting); id. at 435-36 n. 19 (Powell, J., dissenting)) [Footnote 1] and held such schemes permitted too great a risk of arbitrariness to satisfy the Eighth Amendment.
Methodology of the Study
5. During the five-year period of 1980-84 (the period including the year of the capital offense in the present case, 1981), it appears that 1756 persons were committed to the Department of Corrections on first degree murder convictions. See Respondent’s Second Supplemental Answers, p. 3. Reducing that number by 4% to account for returned parole violators, [Footnote 2] it appears that an average of 337 persons were convicted of first degree murder each year. [Footnote 3] During that same period, an average of 32 first degree murderers were sentenced to death. Id. at p. 2. Thus, approximately 9.5% of persons convicted of first degree murder were actually being sentenced to death pursuant to § 190.2 during the period 1980-84. This statistic, of course, does not answer whether the California scheme satisfied Furman since what must be determined is the percentage of statutorily death-eligible convicted first degree murderers sentenced to death.
6. The study encompassed three groups of murder conviction cases: 404 first degree murder cases decided in appellate courts during the five-year period 1988-92 [Footnote 4] (listed in “Appendix A” hereto); 192 second degree murder cases decided in appellate courts during the five-year period 1988-92 (listed in “Appendix B” hereto); and 327 first and second degree murder cases filed in three trial courts during the period 1987-92 (listed in “Appendix C”). [Footnote 5] In addition to reading the 865 cases forming the basis for the study, I have read numerous other California murder conviction cases during the course of my twenty-five years of teaching criminal law.
7. My calculations of the narrowing effect of Penal Code § 190.2 and the resulting death sentence ration are based on my survey of the first group of cases, the appealed first degree murder conviction cases. While the mix of cases within this group is not representative since published cases generally and death judgment cases in particular are overrepresented, within each of the categories of cases in the group (death judgment cases, published non-death judgment cases, unpublished non-death judgment cases), I can think of no reason why the fact situations of the study cases would not be representative of fact situations in those categories in 1981. Although the study was based on cases filed or decided in a different time period, the data is analyzed on the basis of the California death penalty scheme in effect in 1981, i.e., under the then current version of Penal Code § 189 and 190.2. [Footnote 6]
8. In order to determine what percentage of convicted first degree murderers were statutorily death-eligible, I examined two sets of appealed first degree murder cases: all published decisions from the period 1988-92 and all unpublished decisions of the Court of Appeal, First District, from the same period. The published cases were identified by standard research methods as supplemented by Respondents. See Respondent’s Second Supplemental Answers, p. 10. The unpublished cases were identified with the assistance of the Clerk of the Court of Appeal and supplemented by the list of such cases provided by Respondents. See id., Exh. B. To the extent any cases falling within those categories were omitted from the study, the omission was inadvertent, and I have no reason to believe the omission biases the study in any direction. With respect to each case, I determined whether special circumstances had been found, and, if not, whether, under the facts as stated by the appellate court, a reasonable juror could have found a special circumstance beyond a reasonable doubt. [Footnote 7]
9. The representative nature of the appellate first degree murder cases was checked by examination of the two other groups of cases. First, I was concerned whether the choice of the time period or mix of cases (published first degree murder cases and unpublished First District Court of Appeal first degree murder cases) might have skewed the results because of atypical charging, plea bargaining or verdicts, i.e., whether an atypical number of “non-special circumstance” first degree murders were excluded from the sample. Accordingly, I examined the second group of cases, the appellate second degree murder cases. It was my hypothesis that if there were a substantial number of murders which, on their facts, were non-special circumstance first degree murders but which did not appear as first degree murder convictions in the sample, they would appear as second degree murder convictions.
10. Second, in order to determine whether appellate first degree murder cases generally might not be representative of first degree murder cases, I examine the third group of cases, trial court cases from three counties: Alameda, a mixed urban/suburban/rural county; Kern, a rural county; and San Francisco, an urban county. For each county, the cases examined were filed during the period 1987-92. In the case of Alameda County, the murder conviction case files were identified through multiple sources. Although I believe the survey includes a substantial majority or murder case filings during the period, not all cases from the period were identified and surveyed. In the case of Kern county, the list of murder case filings was obtained through a California Public Records Act request, and I therefore believe the survey encompassed all, or virtually all, cases from the period. In the case of San Francisco County, the list of murder case filings was obtained in the course of discovery in the case of People v. John Doe, and I therefore believe the survey encompassed all, or virtually all, cases from the period. To the extent any cases from the three courts were not surveyed, I have no reason to believe that the survey was biased in any direction.
Appellate First Degree Murder Convictions
12. During the period 1988-92, the California Supreme Court and Court of Appeal published opinions in 253 cases involving direct appeals from first degree murder convictions. The published case convictions were distributed as follows: 159 death judgments; 41 first degree murder cases with a special circumstance finding and no death judgment; 53 first degree murder cases without a special circumstance finding. The results of the published case study are set out below in Table 1: [Footnote 8]
TABLE 1
Narrowing Effect of § 190.2 in Published Appeals
From First Degree Murder Convictions (1988-92)
ACTUAL CONVICTIONS SUSTAINED FINDING/EVIDENCE OF SPECIAL CIRCUMSTANCE
YES [Footnote 9] NO
Death Judgment 157 1
Felony-murder 116
Multiple murder/prior murder 72
Lying in wait 8
Other Special Circumstances 23
[Footnote 10]
First Degree Murder With Special
Circumstances 40 0
Felony murder 26
Multiple murder/prior murder 13
Lying in wait 8
Other Special Circumstances 11
First Degree Murder 42 10
Felony-murder 23
Multiple murder/prior murder 3
Lying in wait 21
Other Special Circumstances 8
12. With regard to death judgment cases, essentially all death judgment cases turned out to be special circumstance cases — only once in 158 cases did the Supreme Court reverse for insufficient evidence of special circumstances. [Footnote 11] Sixteen different special circumstances were found and affirmed in these cases. They were: financial gain (People v. Howard, 749 P.2d 279 (Cal.), cert. denied, 488 U.S. 871 (1988); prior murder (People v. Wharton, 809 P.2d 290 (Cal. 1991), cert. denied, 502 U.S. 1038 (1992)); multiple murder (People v. Clark, 833 P.2d 561 (Cal. 1992), cert. denied, 507 U.S. 993 (1993)); avoiding arrest (People v. Daniels, 802 P.2d 906 (Cal)., cert. denied, 502 U.S. 846 (1991)); peace officer victim (People v. Gonzalez, 800 P.2d 1159 (Cal. 1990), cert. denied, 502 U.S. 835 (1991)); witness victim (People v. Heishman III, 753 P.2d 629 (Cal.), cert. denied, 488 U.S. 948 (1988)); lying in wait (People v. Edwards, 819 P.2d 436 (Cal. 1991), cert. denied, 506 U.S. 841 (1992)); felony-murder robbery (People v. Adcox, 763 P.2d 906 (Cal. 1988), cert. denied, 494 U.S. 1038 (1990)); felony-murder kidnapping (People v. Alcala, 842 P.2d 1192 (Cal. 1992), cert. denied, 510 U.S. 877 (1993)); felony-murder rape (People v. Thompson, 753 P.2d 37 (Cal.), cert. denied, 488 U.S. 960 (1988)); felony-murder sodomy (People v. Coleman, 759 P.2d 1260 (Cal. 1988), cert. denied, 489 U.S. 1100 (1989)); felony-murder child molestation (People v. Mickle, 814 P.2d 290 (Cal. 1991), cert. denied, 502 U.S. 837 (1991)); felony-murder burglary (People v. Belmontes, 755 P.2d 310 (Cal. 1988), cert. denied, 488 U.S. 1034 (1989)); felony-murder arson (People v. Clark, 789 P.2d 127 (Cal.), cert. denied, 498 U.S. 973 (1990)); torture (People v. Wade, 750 P.2d 794 (Cal.), cert. denied, 488 U.S. 900 (1988)).
13. As the table demonstrates, the overwhelming majority (89%) of non-death judgment first degree murder cases were also factually special circumstance cases.
14. The 151 unpublished cases involving direct appeals from first degree murder convictions decided during the period 1988-92 by the Court of Appeal, First District, were distributed as follows: 41 first degree murder cases with a special circumstances finding; 110 first degree murder cases without a special circumstances finding. The results of the study of these unpublished cases are set out below in Table 2: [Footnote 12]
TABLE 2
Narrowing Effect of § 190.2 in Unpublished Appeals
From First Degree Murder Convictions
(First Appellate District, 1988-92)
ACTUAL CONVICTIONS SUSTAINED FINDING/EVIDENCE OF SPECIAL CIRCUMSTANCE
YES [Footnote 13] NO
First Degree Murder With
Special Circumstances 40 1
Felony-murder 24
Multiple murder/prior murder 10
Lying in wait 7
Other Special Circumstances 12
First Degree Murder 79 22
Felony murder 46
Multiple murder/prior murder 3
Lying in wait 38
Other Special Circumstances 11
15. The data for the unpublished cases, though less dramatic, generally confirms the data for the published cases. The overwhelming majority (84%) of first degree murder cases are factually special circumstance cases.
16. The failure of the special circumstances to significantly narrow results from two factors which, in combination, made California’s scheme exceptional. First, California, along with only seven other states, [Footnote 14] made felony murder simpliciter a narrowing circumstance. See People v. Anderson, 742 P.2d 1306, 1330-31 & n. 8 (1987). Second, California along with only three other states, [Footnote 15] made “lying in wait” a narrowing circumstance. As interpreted by the California Supreme Court, this circumstance encompassed a substantial portion of premeditated murders. People v. Morales, 770 P.2d 244, 273 (Cal.), cert. denied, 493 U.S. 984 (1989) (Mosk, J., dissenting).
17. The two charts indicate that the felony-murder special circumstances play the predominant role in defining death-eligibility in the California scheme. One or more of the felony-murder special circumstances was proved in almost three-quarters (74%) of the death judgment cases, [Footnote 16] in 60% of the other actual or potential special circumstance cases in the published cases and in a majority of the actual or potential special circumstance cases in the unpublished cases. In fact, among the non-death judgment cases, there were more than five times as many robbery felony-murder as there were non-special circumstance first degree murders in the published cases and three times as many robbery felony-murders as there were non-special circumstance first degree murders in the unpublished cases.
Appellate Second Degree Murder Convictions and Unappealed Cases
18. In the published cases, among the 65 second degree murder conviction cases, there were 26 cases in which there was sufficient evidence to support conviction of first degree murder (i.e., a reasonable juror could have returned such a verdict). In 21 of these 26 cases (81%), there was also sufficient evidence to support a finding of at least one special circumstance.
19. In the unpublished decisions, among the 127 second degree murder conviction cases, there were 66 cases in which there was sufficient evidence to support conviction of first degree murder (i.e., a reasonable juror could have returned such a verdict). In 52 of these 66 cases (79%), there was sufficient evidence to support a finding of at least one special circumstance.
20. While there is a slightly higher percentage of factually non-special circumstance first degree murders among the second degree murder convictions than among the first degree murder convictions, this result seems unexceptional. Presumably, prosecutors and juries most often use their discretion to reduce a charge in less egregious cases. What is clear is that, even in this group, the percentage of cases with facts to support special circumstances is so high as to confirm that there is nothing aberrational about the appellate first degree murder conviction case sample used in this study.
21. Although there was variation among the three counties in the trial court cases surveyed (presumably occasioned by differences in charging and plea bargaining practices), in all three counties, a substantial majority of murder convictions in the three samples were appealed: Alameda (69%); Kern (81%); San Francisco (80%). In all three counties, virtually all the unappealed murder convictions were the product of pleas (and, presumably, plea bargains): Alameda (97%); Kern (95%); San Francisco (85%).
22. Among the 19 unappealed Alameda County cases, there were 10 first degree murder convictions, 2 with special circumstances findings and 8 without. In all 8 of the latter cases, based on the facts stated, I have concluded that a special circumstance could have been found. Among the 19 unappealed Kern County cases, there were 6 first degree murder convictions, 1 with a special circumstance finding and 5 without. In 3 of the latter 5 cases, I have concluded that a special circumstance could have been found. Among the 20 unappealed San Francisco County cases, there were 3 first degree murder convictions, none with a special circumstance finding. In all 3 first-degree murder cases, I have concluded that a special circumstance could have been found.
23. Combining the cases from the three counties, special circumstances were, or could have been, found in 17 of the 19 (89%) unappealed first degree murder conviction cases. Unappealed first degree murder convictions constitute a relatively small percentage of first degree murder convictions, and, on this sample, they demonstrate even less narrowing than do the appellate cases. Accordingly, this group of cases also confirms that the appellate first degree murder cases are representative of all first degree murder cases.
The Failure of § 190.2 to Narrow and the Death Sentence Ratio
24. The two samples of appellate non-death judgment cases produced slightly different results in attempting to measure the narrowing effect of § 190.2 in non-death judgment cases. The published case sample would indicate that 89% of non-death judgment first degree murder cases are factually special circumstance cases (¶ 13), while the unpublished case sample would put the number at 84% (¶ 15). Assuming that this difference is not simply a random variation caused by limits in the sample size, and that the respective percentages are accurate (reflecting, perhaps, a tendency for more egregious cases to become published cases), [Footnote 17] the data have to be combined and, in turn, combined with the data from the death judgment cases. [Footnote 18] When the percentages for the three categories of first degree murder cases (death judgment cases, published non-death judgment cases and unpublished cases) are combined according to the proportion each represents of total first degree murder cases, the result is that approximately 86% of first degree murder cases were factually special circumstance cases under the death penalty scheme in effect in 1981. [Footnote 19]
25. The class of first degree murderers is narrowed to a class which is statutorily death-eligible not only by the special circumstances of Penal Code § 190.2, but also by § 190.5, which forbids application of the death penalty to anyone under the age of 18 at the time of the commission of the crime. The Department of Justice has been unable to provide information from which it can be determined what percentage of convicted first degree murderers committed the murder while under the age of 18. It appears from my own survey of published cases, unpublished cases and trial court cases that 2.5 – 3.5% of the non-death judgment first degree murderers were under 18 at the time of the murder. Using the higher figure (3.5%) to exclude juvenile first degree murderers, [Footnote 20] 83% of first degree murderers were statutorily death-eligible. [Footnote 21]
26. If 83% of convicted first degree murderers were death-eligible and only 9.5% of convicted first degree murderers were actually sentenced to death (see ¶ 5), California’s death sentence ratio during the period was approximately 11.5%.
Conclusions
27. A statutory scheme in which 83% of first degree murderers are death-eligible does not “genuinely narrow” (see Wade v. Calderon, 29 F.3d 1312, 1319 (9th Cir. 1994), cert. denied, 115 S.Ct. 923), and, if only 11.5% of those statutorily death-eligible are sentenced to death, the scheme permits a substantially greater risk of arbitrariness than the schemes in existence at the time of Furman, and is therefore in violation of the Eighth Amendment.
I declare under penalty of perjury under the laws of the State of California and the United States of America that I have read the foregoing declaration, and it is true and correct.
Executed this 21st day of August, 1997, in San Francisco California.
STEVEN F. SHATZ
EXHIBIT A FOOTNOTES
See also Gregg v. Georgia, 428 U.S. 153, 182 n. 26 (plurality); Woodson v. North Carolina, 428 U.S. 280, 296, n. 31 (1976) (plurality). The pre-Furman experience in California was consistent with the Court’s understanding concerning the death sentence rate. See Aikens v. California, 406 U.S. 813 (1972) (Brief for Petitioner, Appendix F, pp. 4f-5f) (citing the estimate of a former Director of the California Department of Corrections and statistics from 1967 and 1969.
This percentage is taken from the number returned in 1984. See Respondent’s Second Supplemental Answers, p. 3. Respondents did not provide similar data for the period 1980-83, but the use of the 4% figure almost certainly favors Respondents since it is higher than the average reported for the period 1988-92. Id.
During the five-year period a total of 1,756 convicted first degree murderers were received by the Department of Corrections. If 4% of that total are assumed to be returned parole violators, there were 1,686 first degree murder convictions during the period, or approximately 337 per year.
The latest year for which the Department of Justice can currently provide computerized information on homicide convictions is 1992.
The total number of cases studied was 865 since 58 cases appeared in both the trial court group and one of the appellate court groups.
Since 1981, five special circumstances have been added to Penal Code § 190.2 and the “intent to kill” requirement for felony-murder accomplices has been dropped. As a result, the present statute narrows even less than the 1981 version.
This is the test suggested by the Supreme Court in its decision in Godfrey v. Georgia, 446 U.S. 420, 428-29 (1980) and Maynard v. Cartwright, 486 U.S. 356, 364 (1988), for determining the narrowing effect of individual aggravating circumstances.
Three cases in the study are not included in the table because the opinions did not set out the facts underlying the convictions. See People v. Marks, 756 P.2d 260 (Cal. 1988); People v. Scaffidi, 15 Cal.Rptr.2d 167 (Ct. App. 1992); People v. Burrows, 269 Cal.Rptr. 206 (Ct. App. 1990).
Within each category, the total number of special circumstances exceeds the number of special circumstance cases because many had findings or proof of more than one special circumstance.
Murder for financial gain or to escape arrest, murders of witnesses or peace officers and murder by torture.
See People v. Morris, 756 P.2d 843 (Cal. 1988).
Nine cases are not included because the opinions did not set out the facts underlying the convictions.
Within each category, the total number of special circumstances exceeds the number of special circumstance cases because many cases had findings or proof of more than one special circumstance.
Florida (Fla. Stat. Ann. § 782.04(1)(a)(2)-(3) (West Supp. 1997), § 921.141(5)(d) (West Supp. 1997); Georgia (Ga. Code Ann. § 16-5-1(c) (1996), § 17-10-30(b)(2) (Supp. 1996); Maryland (Md. Ann. Code art. §§ 408-410, 412, 413(d)(4) and (10) (1996); Mississippi (Miss. Code. Ann. of 1957 §§ 97-3-19(2)(e) and (f), 99-19-101(5)(d) (1994); Montana (Mont. Code Ann. §§ 45-5-102(1)(b), 46-18-303(7) and (9) (1995)); Nevada (Nevada Rev. Stat. Ann. §§ 200.20(1)(b), 20033(4) (1997); North Carolina (N.C. Gen. Stat. § 14-17 (Supp. 1996), § 15A-2000(e)(5) (1988)).
Colorado (Colo. Rev. Stat. § 16-11-103(5)(f) (Supp. 1996); Indiana (Ind. Code 35-50-2-9(b)(3); Montana (Mont. Code. Ann. 46-18-303(4)).
In its amicus brief in Tennessee v. Middlebrooks, cert. granted, 507 U.S. 1028, cert. dismissed, 510 U.S. 124 (1993), the State of California asserted that at least one of the felony-murder special circumstances had been found as to 146 or 212 murderers then on death row.
In fact, the published case results may be the more accurate measure of any narrowing effect. As the Court of Appeal has acknowledged, in unpublished opinions the court sets out the facts in less detail. See People v. Ganter, No. A040449 (Ct.App. 1988). Unpublished opinions may therefore omit to state facts revealing the existence of special circumstances.
A comparison of the published and unpublished case samples indicates that, during the period covered by the surveys, the courts published their decisions in approximately 10.5% of the non-death judgment first degree murder conviction appeals. Death judgment cases constituted approximately 9.5% of first degree murder convictions. (¶ 5).
In actuality, reliance on facts stated in appellate cases probably leads to understatement of the special circumstances/first degree murder conviction overlap. Where the prosecution did not charge special circumstances, the prosecution may not have developed or introduced available evidence which would have proved special circumstances. Similarly, in cases where special circumstances were not found, an appellate opinion may not address evidence which might have supported such a finding.
This is the figure more favorable to the constitutionality of the scheme.
In 9.5% of first degree murder convictions result in death judgments (¶ 5) and juveniles account for 3.5% of the non-death judgment first degree murder convictions, they represent approximately 3.2% of all first degree murder convictions. The remaining 87.3% of first degree murder conviction cases are adult non-death judgment cases, which may be divided into published and unpublished cases according to the ratio set out in footnote 18. Thus, the percentage of first degree murder convictions in each category is as follows:
death judgment cases: 9.5%
published adult non-death judgment cases: 9.2%
unpublished adult non-death judgment cases: 78.1%
juvenile cases: 3.2%
Applying the special circumstance ratio derived for each of the first three categories (see ¶s 12, 13, 15) and 0% in the case of juvenile cases to the percentage of cases represented by that category yields the 83% death eligibility rate.
