C R I M I N A L J U S T I C E L E G A L F O U N D A T I O N CJLF Advisory Volume 37, No. 1 Winter 2019 APPEALS COURT REINSTATES DOUBLE MURDERER’S CONVICTION On January 14, a unanimous panel The Criminal Justice Legal Founda- The case involves the brutal 1981 of the Ninth Circuit Court of Appeals tion had joined the state to request a sexual assaults and murders of 21-year- reinstated the conviction and life with- review of the ruling, arguing that the old Edna Bristol and 16-year-old Kathy out parole sentence of double-murderer two-judge majority had misinterpreted Ryan over a five-day period in Long rapist Francis Hernandez, overturning Strickland. The panel applied a “one Beach, California. Both victims had a 2017 ruling by a divided panel of the juror” requirement to the determination been beaten, tortured, and brutally raped same court that had found the conviction of guilt when Supreme Court precedent before being strangled to death. After unconstitutional. only supports applying it to penalty ver- witnesses identified Hernandez with At issue in Hernandez v. Chappell dicts in capital cases in states where a one of the victims on the night she was was the earlier panel’s finding that errors single juror can block a death verdict. killed, a police search of his house and made by the defense counsel during the Writing for the unanimous panel, van uncovered the dead girl’s shoe, jew- trial prejudiced the case. The two-judge Judge Jacqueline Nguyen declined to elry, fibers, items used in the rapes, and majority held that because of this, under even mention the “one juror” standard. blood, saliva, and semen that matched the U. S. Supreme Court’s 1984 decision “[E]ven assuming that counsel’s per- fluids found on both victims’ bodies. In in Strickland v. Washington, one juror formance was constitutionally deficient, a lengthy tape-recorded statement to po- might have decided not to find the de- as discussed, Hernandez did not suffer lice, Hernandez arrogantly claimed that fendant guilty. Applying this “one juror” any prejudice due to the overwhelming he had consensual sex with both victims standard, the court overturned Hernan- evidence of his intent to rape and murder and that he had accidently killed them. dez’s conviction. Ryan,” she wrote. He admitted burning the victims with a lighter and matches, biting them, and that he “probably” used a baseball bat to penetrate them both. NINTH CIRCUIT TO HEAR PETITION After three decades of court decisions upholding Hernandez’s conviction, a TO LIFT EXECUTION STAYS Ninth Circuit panel consisting of Judge Harry Pregerson, Stephen Reinhardt, and In October 2018, on behalf of the families of five murder victims whose Jacqueline Nguyen reviewed Hernán- murderers are on California’s death row, the Criminal Justice Legal Foundation dez’s appeal in 2015. On November asked to file an amicus curiae (friend of the court) brief challenging the 24 stays 25, 2017, Judge Pregerson, whom the of execution granted since 2006 by a federal district court in San Francisco. In Los Angeles Times described as among November, District Judge Richard Seeborg announced that he would not consider the most liberal federal judges in the CJLF’s brief. country, died. A month later, the panel On January 22, 2019, on behalf of the same two families, CJLF filed a Peti- announced a divided ruling overturning tion for Writ of Mandamus in the Ninth Circuit Court of Appeals (In re Kermit Hernandez’s conviction. The majority Alexander), asking for an order to vacate all of the stays of execution, prohibit opinion by Judge Reinhardt and “joined” the district court from granting any additional stays, and lift restrictions on prepa- by the then-deceased Judge Pregerson rations for executions. announced its conclusion that by fail- On February 5, 2019, the Ninth Circuit ordered attorneys for the 24 condemned ing to attempt a mental defense the de- murderers, the state Department of Corrections and Rehabilitation (CDCR), the fense attorney had been ineffective. The warden of San Quentin, and Governor Gavin Newsom to submit argument within majority further concluded that, if the 21 days. mental defense had been presented, at As noted in the Fall Advisory, for 13 years, two federal district judges in San least one juror might have been swayed Francisco have blocked the executions of every eligible death-sentenced murderer to find Hernandez innocent. Because of in California. The original 2006 order stayed the execution of Michael Morales, this, they concluded, the conviction was continued on page 2 continued on page 4 The Criminal Justice Legal Foundation is a nonprofit, public interest law foundation representing the interests of law-abiding SAN DIEGO DISTRICT ATTORNEY citizens in court. CJLF is an independent corporation supported by tax-deductible ADDRESSES ATTENDEES AT contributions from the general public and is qualified under IRC 501(c)(3). CJLF does CJLF ANNUAL MEETING not engage in any form of political or lobbying activity. The Advisory is published by the The Criminal Justice Legal Foundation held Criminal Justice Legal Foundation, Michael its first board meeting of 2019 on February 26 in Rushford, Editor, 2131 L Street, Sacramento, Los Angeles. The luncheon portion of the meet- California 95816, (916) 446-0345. ing featured a compelling presentation by Summer OFFICERS Stephan, the newly elected District Attorney of San Chairman Emeritus ............ Jan J. Erteszek Diego County. Last November, Stephan fended off a Chairman ........................Rick Richmond challenge by a public defender with over $1 million Vice Chairman .............. Terence L. Smith in contributions from liberal hedge-fund billionaire President & CEO ........ Michael Rushford George Soros to win the election by the largest mar- Secretary/Treasurer ............ Gino Roncelli gin in the county’s history. In her remarks, District Attorney Stephan detailed the aggressive effort to BOARD OF TRUSTEES eliminate the consequences for crime that the state WILLIAM E. BLOOMFIELD, JR. legislature and Governor Brown have engaged in Chairman, Web Service Company over the past eight years and the impact this effort Summer Stephan JERRY B. EPSTEIN has had on public safety in California. San Diego Co. District Attorney Founder and General Partner Del Rey Shores and Marina Harbor MICHAEL H. HORNER, President Tom Sawyer Camps, Inc. “NINTH CIRCUIT TO HEAR PETITION” SAMUEL J. KAHN, President continued from front page Kent Holdings and Affiliates sentenced to death for the 1981 kidnap, the initiative, filed the day after it passed, RICK RICHMOND, Managing Partner rape, and brutal murder of high school took the California Supreme Court a year Jenner & Block cheerleader, Terri Winchell, in Lodi. Then to resolve. CJLF played a major role in R. HEWITT PATE sitting judge Jeremy Fogel issued a federal both drafting Proposition 66 and winning Vice President & General Counsel injunction finding that the state’s three- the decision to uphold it. CDCR then is- Chevron Corporation drug protocol amounted to cruel and un- sued a new execution protocol. GINO RONCELLI, Founder & CEO usual punishment in violation of the Eighth Since October 2017, after Attorney Roncelli Plastics, Inc. Amendment and granted the stay. For the General Xavier Becerra failed to respond MARY J. RUDOLPH, Director next five years, Judge Fogel continued to to CJLF’s written request to appeal the The Erteszek Foundation grant stays to other condemned murderers invalid stays, Judge Seeborg has rejected a MICHAEL RUSHFORD for the same reason. In 2011, Judge Fogel petition from district attorneys asking him President & CEO took an administrative post, and Judge See- to apply the law and overturn the stays Criminal Justice Legal Foundation borg was assigned to the case. That judge and denied CJLF the right to submit argu- ment on behalf of the families of murder WILLIAM A. SHAW, President & CEO has continued to grant stays, even after the Roxbury Properties, Inc. state had abandoned the execution method victims. that justified them. “For 13 years, a single federal judge has TERENCE L. SMITH, Partner In November 2016, California voters been allowed to illegally block enforce- TLS Logistics, LLC adopted Proposition 66, a ballot measure ment of California’s death penalty because HON. PETE WILSON to speed up enforcement of the death pen- neither the Governor, the CDCR under 36th Governor of California alty. Among its provisions, the measure his control, nor the Attorney General have exempted execution protocols from the been willing to take the legal action avail- LEGAL DIRECTOR & GENERAL COUNSEL burdensome Administrative Procedure able to them,” said CJLF Legal Director KENT S. SCHEIDEGGER Act, restoring the law to what it was under- Kent Scheidegger. “Because of this, we stood to be before an erroneous California are taking that action, to uphold the right LEGAL ADVISORY COMMITTEE Court of Appeal decision in 2008. This act of the people of California and the families HON. EDWIN MEESE III had been misused to prevent CDCR from of murder victims to put an end to this ob- Former United States Attorney General issuing new procedures to meet the federal struction and enforce the law.” HON. EDWARD PANELLI court’s requirements. A legal challenge to Watch for developments in this case in Justice, California Supreme Court (Ret.) future editions of the Advisory. Advisory layout design by Irma H. Abella 2 ADVISORY Winter 2019 VIEWPOINT WHAT JERRY BROWN LEAVES BEHIND Several columns have been written for condemned murderers and refusing to about what will be four-term California challenge the California Department of Governor Jerry Brown’s legacy. One Corrections and Rehabilitation’s release recent piece recounted how Brown, of 20,000 sexually violent predators when asked by a reporter early last year without the legally required psychiatric what he considered his legacy would be, screening.