LO. ANGELES POLICE COMM~ JION
BOARD OF RICHARD M. TEFANK POLICE COMMISSIONERS EXECUTIVE DIRECTOR
NICOLE C. BERSHON JOHNW. MACK INSPECTOR GENERAL PRESIDENT
ALAN J. SKOBIN EXECUTIVE OFFICE VICE PRES IDENT PoliCE ADMINISTRATION B UILDING ANTON IO R VI LLARA IGOSA 100WEST F IRST STREET, S UITE 134 RICHARD OROOYAN MAYOR L osANGELEs, CA90012-4 1 12 ROBERT M. SALTZMAN DEBRA WONG YANG (213) 236-1400 PHONE (213)236-1410FAX MARIA SILVA (213) 236-1440 TOO COMM ISSION EXECUTIVE ASSISTANT I
September 27, 2010 BPC #10-0367
The Honorable Public Safety Committee City of Los Angeles c/o City Clerk's Office City Hall, Room 395 Los Angeles, CA 90012
Attention John White:
RE: REPORT ON THE CALIFORNIA COMMISSION ON THE FAIR ADMINISTRATION OF IDSTICE
At the regular meeting ofthe Board ofPolice Commissioners held Tuesday, September 14, 2010, the Board APPROVED the Department's report relative to the above matter.
This matter is being forwarded to you for approval.
Respectfully,
BOARD OF POLICE COMMISSIONERS 7Y?aMJi ~ MARIA SILVA Commission Executive Assistant I
Attachment
c: Chief of Police
AN EQUAL EMPLOYMENT OPPORTUNITY - AFFIRMATIVE ACTION EMPLOYER www.LAPDOnline.org www.joinLAPD.com INTR )EPARTMENTAL CORRESPOND 'CE
September 7, 20 I 0 (;['0 0 9 2010 1.14 '-' · --~ CF # 08-1943 POLICE CO!v1f\IIISSION CB # 10-0009
TO: The Honorable Board of Police Commissioners
FROM: Chief of Police
SUBJECT: REPORT ON THE CALIFORNIA COMMISSION ON THE FAIR ADMINISTRATION OF JUSTICE
RECOMMENDED ACTION
1. That the Board APPROVE this report on the California Commission on the Fair Administration of Justice, and TRANSMIT this report to the City Council' s Public Safety Committee in response to a motion introduced by Councilman Bernard Parks.
DISCUSSION
The City Council motioned for the Police Commission to respond regarding the California Commission on the Fair Administration of Justice (CCF AJ) recommendations on reforming the state of California's criminal justice system. The CCFAJs report focused on the prevention of wrongful convictions and executions. The City Council requested that the study include information applicable to the Department; specifically if the Department is in compliance with CCF AJs recommendations. The attached report completed by the Department is in response to the recommendations and proposals contained in CCFAJs report dated June 30, 2008.
If you have any questions, please contact Gerald L. Chaleff, Special Assistant for Constitutional Policing at (213) 486-8730.
Respectfully,
BOARD Of! CHARLIE BECK POLICE COMif)SSI~NE~ . Chief of Police . Approved~~ li;J.tJ. Secretary ""11 /1 .-. , n /J Attachments / VLbf..~W IJ,U.{/VC-' CALIFORNIA COMMISSION ON THE FAIR ADMINISTRATION OF JUSTICE
BACKGROUND
The Califo1nia Commission on the Fair Administration of Justice was created by Senate Resolution 44, adopted on August 27, 2004, to study and review the administration of criminal justice in California. The goals of the Commission were to determine the extent to which the process had failed in the past, resulting in wrongful convictions of innocent persons, and to examine potential safeguards and improvements to the criminal justice system to further ensure the application and administration of criminal justice in California would be just, fair and accurate.
The Commission was chaired by John Van De Kamp and consisted of law enforcement officials, public defenders, academics and members of the public. Chief William Bratton, the Chief of Police of the Los Angeles Police Department, was a member, and was represented by Gerald Chaleff at the Commission hearings and discussions. The Commission's membership is attached as Exhibit A. The Commission issued interim reports on specific subject matters and then a final report on June 30, 2008, when it ceased its operations.
The Commission ultimately issued recommendations concerning the following issues: • Eyewitness Identification • False Confessions • Informant Testimony • Problems with Scientific Evidence • Professional Responsibility and Accountability of Prosecutors and Defense Lawyers • Remedies • Death Penalty
In 2006, the California legislature adopted legislation based on the Commission's recommendations relating to eyewitness identification and interrogations of suspects for homicides and violent felonies. This legislation, however, was vetoed by the Governor.
In 2007, the legislature again adopted legislation based on the Commission's recommendations pertaining to eyewitness identification, interrogations and the testimony of jailhouse informants. These were also vetoed by the Governor.
To date, none of the Commission's recommendations have been enacted, although some have been introduced in either the Senate or Assembly. Others have been the basis of discussion and debate, but have not been enacted into law.
The Commission's recommendations are attached as exhibit B to this report. Each recommendation detailed the responsibilities of the legislature, law enforcement agencies, judges, prosecutors and defense attorneys. The recommendations pertaining to
1 eyewitness identification, false confessions, jailhouse informant testimony, scientific evidence and professional responsibility are relevant to law enforcement.
ANALYSIS OF RECOMMENDATIONS
The Los Angeles City Council has requested a report on the Commission's recommendations and proposals. The following is the Los Angeles Police Department's response to that request.
EYEWITNESS IDENTIFICATION
The recommendations pertaining to eyewitness identification included that the legislature provide funding for programs to train police in the use of procedures recommended by the Commission. The Commission also recommended that legislation be enacted to require the Attorney General to convene a task force, in conjunction with POST, local law enforcement agencies, prosecutors and defense attorneys, to develop guidelines for policies, procedures and training in relation to eyewitness identification, consistent with the recommendations of the Commission. The Commission further recommended that judges standardize jury instructions to acquaint juries with factors that may contribute to unreliable identifications, and that training be provided to judges, prosecutors and defense attorneys.
The Commission's recommendations for law enforcement agencies, regarding obtaining eyewitness identifications were: • A minimum of six photos should be presented in a lineup • The fillers should resemble the description of the suspect given at the time of the initial interview • Photo spreads and lineups should be presented to only one witness at a time, or, where not practicable, witnesses should be separated so they are not aware of the responses of other witnesses • Double-blind identifications procedures should be utilized whenever practicable (double-blind is a procedure where the officer conducting the procedure does not know who the suspect is) • When double-blind procedures are utilized, the use of sequential presentation of photos and lineup participants is preferred, so a witness presented with one person at a time o Photos should be presented in random order o Witness should be instructed to say yes, no or unsure as to each photo or person o Sequential procedures should not be used when double-blind administration is not available • All witnesses should be instructed that the suspect may or may not be in the photo spread or lineup • At the conclusion of a lineup, photo presentation or show-up, a witness who made an identification should describe his or her level of certainty and the statement should be recorded or otherwise documented and preserved.
2 ·• Witness should not be given feedback confirming the accuracy ofthe identification • Live lineup procedures and photo displays should be preserved on video tape, audio tape when video not practicable • A single show-up should not be used if there is probable cause to arrest the subject. A description ofthe suspect should be documented prior to the show up transporting the witness to the location of the suspect, and in the case of multiple witnesses, all witnesses should be separated. • Training programs should be provided and required to train law enforcement in the use of the recommended procedures.
Current Los Angeles Police Department (LAPD) procedures require: • A minimum of six photos • The fillers resemble the description of the suspect • Presented to one witness at a time and witness are separated • All witnesses are instructed that the suspect may or may not be in the photo spread or lineup • The investigator shall have the witness write appropriate comments on the photo and sign the bottom of the form • Witnesses should not be told ifthey picked the right or wrong photo. • Witness should be told not to tell other witnesses that they have identified anyone • Photo displayed shall be retained in the Investigator's Case Envelope • All live lineups are photographed and conducted by Robbery-Homicide Division (RHD) • Allli ve lineup photographs and reports are maintained by RHD and copies are given to the divisional detectives
The LAPD does not require a double-blind procedure or the use of sequential presentation of the photographs, and does not require the witness to state the level of certainty ofthe accuracy of the identification. In 2007, the LAPD was preparing to implement the double~ blind procedure in a few areas to determine if the procedure should be adopted. The trial was to compare results in these areas with control areas for comparison. The District Attorney's office stated objected to this, and the trial was never conducted.
The LAPD does not prohibit single show-ups, while the suspect is detained, if there is probable cause to arrest the suspect. However, Department policy does require the witness to be informed that the suspect is in temporary custody, that it does not indicate his/her guilt or innocence, and that the purpose of the show-up is either to eliminate or identify the person involved in the crime. A suspect may be transported for this purpose if the suspect freely and voluntarily consents.
3 FALSE CONFESSIONS
In regard to false confessions, the Commission recommended that the legislature enact legislation requiring the recording of the entirety of custodial interrogations of individuals suspected of all serious felonies. The Commission also recommended the appropriation of funds, to be administered by the Attorney General, to provide grants to police agencies to implement programs to videotape custodial interrogations. Further training was recommended for judges, prosecutors and defense attorneys.
The Commission's recommendations for law enforcement agencies, regarding false confessions were: • Videotape the entirety of all custodial interrogations of felony suspects, or where impractical, audiotape the entirety of such interrogations • Training programs be provided and required to train police about the causes, indicia and consequences of false confessions. • Police interrogators should receive special training in how to identify and interrogate persons with developmental disabilities and juveniles
The LAPD presently does not require officers to videotape or audiotape intenogations. There are locations where video and audio taping equipment is available. The Department has clear rules and procedures as to the retention of video or audio tapes made of interrogations. The LAPD has a standardized "Investigative Action Statement Form" to memorialize the statement, which may be written by the interviewer or the suspect. The suspect is asked to review and sign the document once it is completed.
INFORMANT TESTIMONY
In regard to informant testimony, the Commission recommended that the legislature enact legislation to require corroboration of in-custody informants, similar to that requiring corroboration of accomplices contained in Penal Code Section 1111, and that juries should be instructed of that requirement. Additionally, the Commission recommended that prosecutors have an express agreement in writing, describing the rewards or benefits that might be exchanged for the testimony, and that prosecutors have a written internal policy to govern the use of in-custody informants, to include supervisory approval, maintenance of a central file, recording of all interviews and corroboration, and training for judges, prosecutors and defense attorneys.
The Commission's recommendations for law enforcement agencies, regarding informant testimony were: • An express agreement in writing, whenever feasible, should describe the range of rewards or benefits that might be afforded • Training programs, to include addressing the use of anested or charged informants
4 In 1989, Los Angeles experienced the problem of the use of jailhouse informants, when an individual named Leslie Vernon White demonstrated how easy it was for an incarcerated inmate to gather information and then use that information to fabricate a statement or confession from another inmate. At that time, the District Attorney did not have a policy or procedure for dealing with these inmates, and individual deputies determined whether to offer the informant as a witness and what assistance to provide to him or her. As a result of all this, and a Grand Jury report that followed, the Los Angeles District Attorney's policies and procedures are now viewed as best practices and serve as a model for other agencies.
The LAPD does not have specific procedures for this type of informant, as the District Attorney determines the use of the witness and what to offer in return. The procedure is that the investigating officer notifies the District Attorney handling the case, who then determines whether to use the information or the witness. Therefore, these recommendations are not applicable to the Department. The LAPD does have extensive policies and procedures in place relating to confidential informants, as a result of the Consent Decree. The LAPD Informant Manual was adopted in 2008, but is not directed to or is applicable to jailhouse informants.
SCIENTIFIC EVIDENCE
The Commission recognized the importance and potential of DNA, and the problem of current backlogs in the testing and uploading of DNA profiles throughout the state. It recommended that the United States Department of Justice immediately ascertain the staffing levels required to reduce the backlog caused by the demands of Proposition 69, and that emergency budget appropriations be made to achieve the staffing levels. It was further recommended that the Attorney General consult with those in the criminal justice system to address the problems of the DNA backlog and the best practices to eliminate it. The creation or designation of a government agency or commission, with the power and duty to formulate and apply standards to define who is qualified to perform analysis of evidence in any particular scientific discipline on a statewide basis, was also recommended. Additionally, training programs for judges, prosecutors and defense attorneys were recommended in regard to the appropriate use and validity of forensic science evidence.
The Commission's recommendations for law enforcement agencies, regarding scientific evidence were: • Celiification of the forensic experts employed, and use of those certifications as a basis for promotion and salary decisions
The department does not use certifications as a basis for promotion. It is not a requirement for promotion but certification may be used by an interview panel to demonstrate an applicant's interest in and dedication to their profession.
5 PROFESSIONAL RESPONSIBILITY AND ACCOUNTABILITY OF PROSECUTORS AND DEFENSE LA WYERS
The Commission indicated that, overall, District Attorneys and staff, Public Defenders and staff, and private criminal defense lawyers in California provide competent and highly professional service, meeting the highest ethical standards. While appellate courts frequently review criminal convictions to assess claims of misconduct or incompetence on the part of prosecutors or defense lawyers, their review is limited to determining whether the impact of misconduct or incompetence requires reversal of a judgment of conviction. Whatever discipline is warranted is ordinarily left to supervisory personnel in the District Attorney's or Public Defender's office, or to the State Bar of California.
Internal discipline by public agencies lacks transparency because of legal restrictions on disclosure, and the lack of public access often means that no track record is available to identify repeat offenders. The State Bar is limited by its reliance upon the receipt of reports of misconduct by judges or self reporting by attorneys. The Commission discovered that a significant amount that should be reported is not, and that clarification is needed on what should be reported and by whom.
The Commission recommended changes to the Court Rules, California Code of Judicial Ethics, and the repmiing function of the State Bar. These recommendations included the adoption of rules for judges as to when they must report misconduct of attorneys, and rules pertaining to the reports the State Bar must issue regarding misconduct of attorneys.
Additionally, the Commission reviewed the issue of the funding of defense services and recommended that legislation be enacted to require that, when Counties contract for indigent defense service in criminal cases, the contract provide separate funding for accessing technology and other expenses, to avoid the issue of flat fee contracts, which may put a lawyer in a conflicted position due to a lack of funds. The Commission further recommended that the State Bar reconvene its Commission on the Delivery of Legal Service to the Indigent Accused to make recommendations regarding the adequacy of funding for defense service, to ensure acceptable standards of competent representation are met. ·
Finally, the Commission addressed the issue of exculpatory evidence. After a review of Brady requirements, Rampart Task Force Recommendations, and the limitations of Pitchess motions, the Commission recommended that training programs be conducted to ensure that all Deputy District Attorneys understand and apply office policies appropriately, with regard to Brady disclosure and Pitchess motions.
The Commission's recommendations for law enforcement agencies, regarding exculpatory evidence were: • Formulate policies and procedures to systematically collect any Brady material, and consistent with statutory protections for personnel records, promptly deliver the material to prosecutors
6 • Training programs, to cover the obligation to disclose Brady material to the prosecutor
The department recognizes its obligations to provide the prosecution and therefore the defense of all evidence in an investigation that could be Brady material. The providing of information to the prosecutor is the responsibility of the investigating officer and it is the District Attorney's responsibility to determine what is discoverable by the defense. The recommendation recognizes the limitations on the providing of personnel information contained in the Government Code.
REMEDIES
In regard to remedies, the Commission issued recommendations for assistance to be given to those released back into the community after successfully challenging their convictions. The recommendations addressed assistance, changes in the time limits for claims for compensation and for malpractice, increase in compensation limits, changes to procedures for expunging their convictions and restoration of civil rights and restoration of funding of the Innocence Project.
These recommendations do not apply to the Department, although the Department does have reentry programs for those released from prison and is involved in others.
DEATH PENALTY
The Commission conducted a review and analysis of the administration of the death penalty in California. The Commission found itself in full agreement with California Chief Justice Ronald George; the system was dysfunctional. The Commission's recommendations were not unanimous and various commissioners dissented or offered alternative recommendations. Exhibit B contains those recommendations approved by the Commission. Chief William Bratton offered his own statement, which is attached as Exhibit C.
7 Commissioners John K. Van De Kamp Jon Streeter Chair Vice Chair John K. Van de Kamp has a long career in public Jon Sh·eeter is a partner service. After graduating from Stanford Law School wi th Keker & Van Nest in 1959, he worked in the L.A. U.S. Attorney's in San Francisco. He Office from 1960 to 1967 and then served as the specializes in complex Director of the Executive Office of US Attorneys commercial civil litiga in Washington from 1968-69. In 1971 he became tion and has handled the Central District's first Federal Public Defender. capital litigation at all phases of the process. Jon In 1975, Van de Kamp was appointed Los Angeles is past-President of the Association of Business CotmLy Dish·ict Attorney, and was subsequently Trial Lawyers of Northern California and past elected twice. Van de Kamp was elected California's President ofthe Bar Association of San Francisco. Attorney General in 1982. and served two terms. He has been named one of roo Super Lawyers in After an unsuccessful run Northern California by San Francisco Magazine, for the Governor's Office and he is listed in Chambers USA's directory of in 1990, he left office in America's Leading Lawyers for Business. In addi 1991. Van de Kamp is tion to his commercial practice and varied bar now Of Colmsel at leadership activities, Jon maintains an active pro Dewey LeBoeuf LLP in bono practice. Los Angeles.
Exhibit A Gerald F. Uelmen Justice, on the Judicial Council of California, Collaborative Justice Courts Advisory Committee. Executive Director In addition to her administrative duties, Ms. Gerald F. Uelmen is a Professor of Law at Bellas represents clients in the Alameda County Santa Clara University School of Law, where he Homeless Court. served as Dean from 1986-1994· He began his career as a federal prosecutor in Los Angeles. He has appeared as defense counsel in numer ous high-profile cases, Harold "Bosco" Boscovich including the cases Commissioner against Daniel E11sberg, Harold "Bosco" Boscovich retired from the Alameda Christian Branda and County District Attorney's Office in March, 2004 0.). Simpson. During after more than 32 years of service. He retired as the past six years, he a Cap tain of Inspectors and th e Director of the has defended the rights Vic tim/Witness Assistance Division, the unit of Californians to use which he began in November, I974· Prior to his marij uana for medicinal employment with the District Attorney's Office he purposes in five cases, including cases before the served as a police officer in the City of Oakland U.S. Supreme Court and the California Supreme for over 8 years. He returned to work with the Court. He is a past president of the California District Attorney's Office, as Site Manager, to Academy of Appellate Lawyers and of California begin the operation of Attorneys for Criminal Justice. the Alameda County Family Justice Center in Oakland, "a one-stop Diane Bellas shop" for victims of domestic violence, sexual Commissioner assault, child abuse, and Diane Bellas was elder abuse. He is also appointed the Alameda the Training Coordinator County Public Defender for the California Victim Service Training Institute in 2000, after per responsible for the training of all victim advocates forming a range of in California's 58 counties. assignments over two decades in the depart ment. Ms. Bellas is a past President of the California Public Defenders Assodation. She is a m ember emeritus of the American Inn of Court, Earl Warren Chapter, and was a Robert Wood johnson Foundation, Urban Health Initiative Fellow. She served, by appointment of the Chief William Bratton Party: In 1998, Brown ran for mayor of Oakland, J. won, and was re-elected in 2002. ln the field of Commissioner crime fighting, Brown enacted hundreds of tough William J. Bratton was anti-crime measures, including the "Use A Gun Go appointed by Mayor To Prison" Law and mandatory sentences for rape, James Hahn in October sale ofheroin, violent crimes against the elderly, 2002. The only person child molestation and selling PCP. ever to serve as chief executive of the LAPD, the NYPD, and the Boston Police Gerald Chaleff Department. Chief Representative of Chiif Bratton Bratton established an international reputation Gerald Chaleff repre for reengineering police departments and fight sents ChicfWilliam ing crime in the 1990s. A Vietnam veteran, Chief Bratton on the Bratton began his policing career in 1970, as a Commission. Chaleff police officer with the Boston Police Department, was appointed to the rising to Superintendent of Police, the depart Los Angeles Police ment's highest sworn rank, in just ten years. In Department by Chief the 198os, Chief Bratton headed two other police Bratton on January agencies, the Massachusetts Bay Transportation 13, 2003. He serves Authority Police and the Massachusetts as Bureau Chief and Commanding Officer of Metropolitan District Commission Police. the Consent Decree Bureau (CDB). As Bureau Chief of CD B, Mr. Chaleff oversees the opera tions of the Audit Division and the Civil Rights Jerry Brown Integrity Division, which is responsible for the Departmen~s implementation of the Consent Commissioner Decree with the United States Department of Edmund G. Brown, Jr., Justice. In 1997, Mr. Chaleffwas appointed to known as Jerry, was the Los Angeles Board of Police Commissioners, elected by Californians and elected as President of the Board from 1999 as their 31st Attorney to 2001. He also se1ved as President of the Los General in November Angeles County Bar Association. 2006. In 1970, he was elected California Secretary of State. Brown was elected Governor in 1974 and reelected in 1978. Brown again practiced law in Los Angeles and in 1989 became chairman of the state Democratic Ron Cottingham Sacramento County in 1986 where he served three terms and retired in 1999· He is a past-President Commissioner of the California Peace Officers' Association Ron Cottingham joined the Commission repre and the American Association of Motor Vehicle senting the Peace Officers Research Association Administrators. of California (PO RAC). Ron was elected presi dent of PO RAC in Chief Pete Dunbar November 2003 and has been w1anirnously Commissioner re-elected to consecu- Chief Pete Dunbar, of Pleasant Hill, joined the tive terms. Ron has been Commission representing the California Police continually employed by Chiefs' Association. Chief Dunbar started with the San Diego Sheriffs the Oaldand Police Departmentin 1982. In 1999, Department since 1973- In 1986 Ron was selected he was appointed as a Deputy Chief. In February by the Sheriffs Department to es tablish and super of 2006, he was appointed as Chief of Police of vise the department's centralized investigative unit the Pleasant Hill Police for child abusejsexual assault. Then in 1997 Ron Department. Chief was selected to establish and supervise the depart Dunbar is a graduate ment's centralized domestic violence investigative of the POST Master unit for the Sheriff's Department. Ron has gradu Instructor Development ated from the POST Supervisory School and the Program and a graduate POST Management School. of the POST Command College. He taught Criminal Law and Search Glen Craig and Seizure in the Police Academy and in-service training classes. He currently teaches Strategic Commissioner Planning in the POST Management Course for the Glen Craig is a veteran of San Diego Regional Training Center. 44 years in Law Enforce ment having served with four different depart ments at both the state and local level. He began his career with the Visalia, CA, Police Department in 1955 upon his discharge from the United States Army. In 1956 he joined the California Highway Patrol and became the Commissioner in 1975, serv ing until 1983- In 1983 he was appointed Director of the Division of Law Enforcement at the State Department of Tustice. He was elected Sheriff of James P. Fox undergraduate degree from the University of Miami, a bachelor's, master's and honorary degree Commissioner from Hebrew Union College, from which he was James P. Fox was elected ordained in r967. District Attorney of San Mateo County in June 1982 and has been re elected every four years Janet Gaard since without opposition. Representative ofjerry Brown He joined the San Mateo County District Attorney's Janet Gaard represents California Attorney office in Janua1y r970. In January, 1974, Mr. Fox General Jerry Brown left the District Attorney's office and served as a on the Commission, member of the Private Defender Panel of the San replacing Scott Thorpe Mateo County Bar Association. Mr. Fox has been and Dane Gillette. Janet active in both the California District Attorneys' has been a member of Association and the National District Attorneys' the Attorney General's Association . He is a past President ofCDAA and Office since 1984. For chairman of the Legislative Committee since 1990. 14 years, she was a He is also the current Presiden t ofNDAA. Dep uty Attorney General in the Criminal Law Division. In 1999, she was appointed Director of Legislative Affairs for th e Rabbi Allen I. Freehling Department of Justice and a Special Assistant Attorney General, providing legal and policy Commissioner advice to the Attorney General and the Chief Rabbi Allen I. Freehling has served as the Deputy Attorney General on criminal law and law Executive Director of the Human Relations enforcement issues. She was recently appointed Commission of the City of Los Angeles since by Governor Schwarzenegger to the Yolo County 2002. Previously, he was the Senior Rabbi of Superior Court. University Synagogue for 30 years. He is a highly respected community activist wh o has held a vast number ofleadership and board positions including President of the Board of Rabbis of Los Angeles, founding Chair of both the LA County Commission on AIDS and the International Association of Physicians in AIDS care, and founding Facilitator of the Muslim · Jewish Dialogue. He holds an Micheal Hersek Association and past President of the California State Coroner's Association. He is a past member Commissioner of the Corrections Standards Authority. Michael Hersek, a San Francisco resident, worked as a staff attorney at the California Supreme Court from 1989-1991 and Bill Ong Hing 1999-2004, advising the seven Justices on Commissioner non-capital oiminal mat Bill Ong Hing is a Professor of Law at the ters. From 1991-1999· University of California, Davis. He teaches Judicial he worked as a Deputy Process, Negotiations, Public Service Strategies, State Public Defender Asian American History, and directs the law school at the Office of the State clinical program. He is the author of numerous Public Defender in San academic and practice-oriented books. His books Francisco. He served as an adjunct professor at include Deporting Our Souls-Values, Morality, Golden Gate University School of Law, from 2000 and Immigration Policy (Cambridge Press to 2004. In June 2004, Governor Schwarzenegger 2006), Defining America Through Immigration appointed Hersek to serve as State Public Defender. Policy (Temple Univ. Press 2004), Making and Remaking Asian America Through Immigration Policy (Stanford Press Sheriff Curtis Hill 1993), and Handling Immigration Cases Commissioner (Aspen Publishers Sheriff Curtis Hill, of San 1995). His book To Be Benito County, joined the An American, Cultural Commission represent Pluralism and the ing the California State Rhetoric of Assimilation Sheriffs' Association. (NYU Press 1997) Sheriff Hill began his received the award for Outstanding Academic Book career with the San in 1997 by the librarians' journal Choice. Benito County Sheriff's office in 1976. In 1988 he was appointed Undersheriff, a position he held for ten years. Sheriff Hill was elected Sheriff in November ofi998. He was elected to his third term in 2oo6. Sheriff Hill is a 1989 graduate of the FBI National Academy. He is currently an offi cer with tl1e California State Sheriff's Michael P. Judge Officer Standards and Training Commissioner from 1993 to 1996. He is currently a gubernatorial Commissioner appointee to the California Council on Criminal Michael P. Judge is the Chief Public Defender Justice. He oversaw the Santa Clara County for the County of Los Angeles, California. He Laboratory of Criminalistics while District Attorney. was appointed by the Chief Justice in 2000 to the Judicial Council of California: Collaborative Michael Laurence Justice Courts Advisory Commissioner Committee. He has co Michael Laurence is tl1e Executive Director of authored several articles the Habeas Corpus Resource Center, a California on indigent defense to Judicial Branch agency created to provide rep be released shortly by the resentation to death-row inmates in state and Kennedy School of Government and Ha1vard Law federal habeas pro School. Mr. Judge served as the Chairperson of a ceedings. Since 1987, ten person committee of the State Bar to estab Mr. Laurence has lish Guidelines fo r Indigent Criminal Defense represented death-row Providers in California, which were promulgated inmates in a dozen in 2oo6. He continues to serve as the Chairperson evidentiary hearings, of the California Public Defenders Association argued numerous cases Legislative Committee. before the California Supreme Court and the federal courts of appeals, and in March 1998, George Kennedy argued before the United States Supreme Court. Mr. Laurence was a Criminal Justice Research Commissioner Consultant with the Office of the California George Kennedy was Attorney General. elected Santa Clara County District Attorney in 1990, and reelected in 1994, 1998, and 2002. He attended the National College of District Attorneys and the F.B.I. National Law Academy. He is past president of the California District Attorneys Association, a former director of the National District Attorneys Association, and past chairperson of the Santa Clara County Domestic Violence Council. He was a California Peace graduating from University of California, Boalt Hall Alejandro Mayorkas School of Law in 1966, he worked as an attorney Commissioner with California Rural Legal Assistance for three Alejandro Mayor leas is the former U.S. Attorney for years before ente1ing private practice with the law the Centr·al District of California and is currently a firm of Blackmon, Isenberg and Moulds. partner in the Los Angeles office of O'Melveny & Myers LLP. At the age of39 Mr. Mayorkas was the youngest U.S. Attorney in the nation. He super vised more than 240 Kathleen "Cookie" M. Ridolfi Assis tant U.S. Attorneys Commissioner and oversaw the investi Kathleen "Cookie" Ridolfi, Professor of Law, gation and prosecution of is co-founder and dtrector of the Northern cases involving complex California Innocence Project (NCIP) at Santa Clara securities and financial University. She is co-founder and past-President of institution fraud, interna the Innocence Network, tional money laundering, an international col civil1ights violations, lective of innocence high-tech and computer-related oime, defense projects assisting procurement fraud, corrupt public officials, prisoners with claims of environmental crime, organized crime, narcotics wrongful conviction and trafficking, and racketeering. Mr. Mayorkas has promoting law reform extensive jury trial experience, having been before to address the causes a jury in more than thirty cases. of wrongful conviction. Cookie is an experienced and highly regarded trial lawyer. She was a pioneer in the application of Judge John Moulds social science research in the jury selection process and in the development of expert testimony for use Commissioner in battered women's self-defense cases. Judge John F. Moulds is a Magistrate Judge for the U. S. District Court for the Eastern District of California, and has served in that position since 1986. From 1987 to 1997 he was ChiefMagish·ate Judge for the district. In 1992 and 1993 he was President of the Federal Magistrate Judges' Association. From 1960 to 1963 Judge Moulds worked as AdrninisLTative Assistant to State Senator AlbertS. Rodda. After Douglas R. Ring Totten has worked to protect and expand the rights of crime victims. Mr. Totten serves on the Commissioner boards of community groups including Crime Douglas Ring is both a private investor and an Victims United. attorney. His company, The Ring Group, is a diver sified real estate investment company, owning properties in California, the Northwest, the Chris Boscia Midwest, and Virginia. Staff Mr. Ring served the Chris Boscia joined the Commission in March City of Los Angeles as 2oo6 as Executive Assistant. Chris graduated a Commissioner of the from Boston College with bachelor's and mastds Los Angeles Community degrees in Theology. While working for the Redevelopment Agency. Commission, Chris finished a Juris Doctorate As an attorney, he from Santa Clara University School of Law and specialized in both administrative and real estate co-taught a seminar for upper division law stu law. Before entering private practice, Mr. Ring was dents on Wrongful a Deputy Los Angeles County Supervisor and a Convictions and the United States Congressional Field Representative. Legislative Process. Mr. Ring was named one of "Ten Leading Los Chris was a pupil in the Angeles Property Lawyers" by the Los Angeles Honorable William A. Daily Journal. Ingram American Inn of Court in San Jose and received the American Gregory D. Totten Law Institute-American Bar Association Outstanding Scholar and Leader Commissioner Award for the Class of 2008. Chris plans to take Gregory D. Totten was the California Bar Exam. elected district attorney ofVentura County in 2002. He is a graduate of Pepperdine University School of Law and joined the Ventura County District Attorney's Office in 1982. He served as executive director of the California District Attorneys Association from 1993 to 1996. Mr. Totten was also the fow1ding executive director of the Institute for the Advancement of Criminal Justice. Throughout his professional career, Mr. Exhibit B ec men atio s Summary Eyewitness Ide ntification POLICE AGENCIES D A minimum of six photos should be presented THE LEGISLATURE in a photo spread, and a minimum of six persons Programs be provided and required to train should be presented in a lineup. The fillers or police in the use of recommended procedures for foils in photo spreads and lineups should resem photo spread, show-ups and lineups. ble the description of the suspect given at the time of the initial interview of the witness unless this f) Provision of adequate funding for any train method would result in an unreliable or sugges ing necessitated by the recommendations of this tive presentation. Commission. f) Photo spreads and lineups should be presented ~ The enactment oflegislation to require the to only one witness at a time, or where separate Attorney General of California to convene a task presentation is not practicable, witnesses should be force in conjunction with POST, local law enforce separated so they are not aware of the responses of ment agencies, prosecutors and defense attorneys, other witnesses. to develop Guidelines for policies, procedures and training with Te spect to the collection and handling f!l Double-blind identification procedures should of eyewitness evidence in criminal investigations be utilized whenever practicable, so the person by all law enforcement agencies operaling in the displaying photos in a photo spread or operating State of California. a lineup is not aware of the identity of the actual suspect. When double-blind administration is not (a) The Guidelines should be consistent with practicable, other double-blind alternatives should Lhe recommendations of this Commission, and be considered. should be promulgated to all law enforcement agencies operating in the State of California. D When double-blind procedures are u tilized, the use of sequential presentation of photos and line (b) The Task Force should report back to the up parti cipants is preferred, so the witness is only legislature within one year. presented with one person at a time. (a) Photos or subjects should be presented and lineups or photo spreads should be used for in random order, and wit11esses should be remaining witnesses after an identification is instructed to say yes, no or unsure as to each obtained from one witness. photo or participant. mTraining programs be provided and required to (h) Sequential procedures should not be used train law enforcement in the use of recommended where double-blind administration is not procedures for photo spread, show-ups and lineups. available. mAll witnesses should be instructed that a sus JUDGES pect may or may not be in a photo spread, lineup 0 The standardized jury inshuctions utilized in or show-up, and they should be assured that an eye witness identification cases to acquaint juries identification or failure to make an identification with factors that may contribute to unreliable iden will not end the investigation. tifications be evaluated in light of current scientific Ia) At the conclusion of a lineup, photo presenta research regarding cross-racial identifications and tion, or show-up, a witness who has made an the relevance of the degree of certainty expressed identification should describe his or her level of by witnesses in court. certainty, and that statement should be recorded or f) Training programs be provided and required otherwise documented, and preserved. Witnesses to acquaint judges with the particular risks of should not be given feedback confirming the cross-racial identifications, as well as unreliable accuracy of their identification until a statement identification procedures, and the use of expert describing level of certainty has been documented. testimony to explain these risks to juries. D Live lineup procedures and photo displays should be preserved on video tape, or audio tape PROSECUTORS when video is not practicable. Training programs be provided and required (a) When video taping is not practicable, a still to acquaint them with the particular risks of photo should be taken of a live lineup. cross-racial identifications, as well as unreliable identification procedures, and the use of expert (b) Police acquisition of necessary video testimony to explain these risks to juries. equipment should be supported by Legislative appropriations. DEFENSE ATTORNEYS mA single subject show-up should not be used if there is probable cause to arrest the suspect. The Training programs be provided and required suggestiveness of show-ups should be minimized to acquaint them with the particular tisks of by documenting a description of the perpetrator cross-racial identifications, as well as unreliable prior to the show-up, transporting the witness to identification procedures, and the use of expert the location of the suspect, and where there are testimony to explain these risks to juries. multiple witnesses they should be separated, (a) Eve1y Electronic Recording ofa Custodia! False Confessions Interrogation shall be clearly identified and cata THE LEGISLATURE logued by law e11jorcement personnel.
D The enactment of tl1e following statute to (b) If a juvenile or criminal proceeding is brought require the recording of the entirety of custodial against a person who was the mbject of an .interrogations of individuals suspected of all seri Electronically Recorded Custodial In.terrogatior1-, ous felonies: the Electro11ic Recording shall be preserved by law
Section 1: Dtifinitions. enforcement personnel until aU appeals, post-con (a) "Electronic Recording" or "Electronically victim'/. and habeas corpus proceedings are final Recorded" means an. audio, video or digital aiA.dio .and concluded, or the time withi11- which the}1must or video recording that is an authentic, accurate, be brought has expired, or the sentence has been complete, unaltered record ofa custodial interroga completed. tion., indudi.ng a law enforcement officer's advice of (c) If no juvmile or cri.minal proceeding is brought the person's constitution.al rights an.d ending when against a person who has been the subject of an. the interview has completely finished . Electronically Recorded Custodi.al Interrogati-on, the (b) "Serious Felony" means any of the o.ffimses listed related Electronic Recording shall be preserved by in. Section 1192·7{c) ofthe Califomia Penal Code. law enforcement personnel until all applicable state and federal statu.tes of limitations bar prosecution of (c) "Statement" means an oral, written., sign lan the person. guage or nonverbal communication. f) The appropriation of funds, to be adminis Section 2: Electronic Recording Required. tered by the Attorney General, to provide grants to All Statements made during custodi.al intenogation California Police Agencies that wish to implement relating to a Serious Felony shall be Electroni.cally programs to videotape custodial interrogations. Recorded.
Section y Cautionary Instruction Required. POLICE AGENCIES If any Statement is admitted in evidence in any 0 All California law enforcement agencies to cri.Jninal proceeding which occurred during custodial videotape the entirety of all custodial interrogations interrogation. which was not Electronically Recorded of felony suspects or, where videotaping is imprac in its entirety in i:omplian.ce with Se;ction 2, the court tical, to audiotape the entirety of such custodial shall, at the requ.est ofthe defendant, provide the jury interrogations. with an instruction in a form to be recommended by the California judicial Council, which advises the jwy f) Training programs be provided and required to to view such statements with caution. train police about the causes, indicia and conse quences of fa lse confessions. Police interrogators Section 4: Handling and Preservation of Electronic should receive special tTaining in how to identify Recordings of Custodial Interrogati.ons relating to a and interrogate persons with developmental dis Serious Felony. abilities and juveniles. JUDGES (c) Corroboration of an in-custody informant Training programs be provided and required to cannot be provided by the testimony of another train them about the causes, indicia and conse in-custody informant. quences of false confessions. (d) An in-custody informant is hereby defined as a person, other than a codefendant, percipi PROSECUTORS ent witness, accomplice or coconspirator whose testimony is based upon statements made by Training programs be provided and required to the defendant while both the defendant and train them about the causes, indicia and conse the informant are held within a correctional quences of false confessions. institution. D A jury should be instructed in accordance with DEFENSE ATTORNEYS the language of this statute. A jury should not be Training programs be provided and required to instructed that corroborating evidence may be train them about the causes, indicia and conse· slight, as in CALCRlM No. 335· quences of false confessions.
POLICE AGENCIES Informant Testimony 0 An express agreement in writing, whenever feasible, should describe the range of recom THE LEGISLATURE mended rewards or benefits that might be afforded 0 The enactment of a statutory requirement of in exchange for huthful testimony by an arrested corroboration of in-custody informants, similar to or charged informant. the current requirement of the corroboration of accomplices contained in Penal Code Section u n. f.J Training programs to include a component addressing the use of arrested or charged infor f.J The statute should provide: mants as witnesses. (a) A conviction can not be had upon the testi mony of an in-custody informant unless it be PROSECUTORS corro borated by such other evidence as shall 0 An express agreement in writing, whenever independently tend to conhect the defendant feasible, should describe the range of recom with the commission of the offense or the special mended rewards or benefits that might be afforded circumstance or the circumstance of aggravation in exchange for truthful testimony by an arrested to which the in-custody informant testifies. or charged informant. (b) Corroboration is not sufficient if it merely f.J California District Attorney Offices adopt a writ shows the commission of the offense or the ten internal policy, wherever feasible, to govern the special circumstance or the circumstance in use of in-custody informants. aggravation. R The policy shouJd provide: Problems with (a) 'D1e decision to use the testimony of an in Scientific Evidence custody informant be reviewed and approved by supervisory personnel other than the deputy THE DEPARTMENT OF JUSTICE assigned to the trial of the case; D Immediately ascertain the staffii1g levels required for the State Laboratory to reduce the (b) 'D1e maintenance of a central file preserving bacldog in the uploading of DNA profiles to thirty all records relating to contacts with in-custody days or less, both now and when the demands of informants, whether they are used as wih1esses Proposition 69 talce effect, including the sala1y level or not; necessa1y to fill and maintain those staffing levels. (c) 'D1e recording of all interviews of in-custody f) The California Attorney General to immedi informants conducted by District Attorney ately commence consultation with state and local personnel; public laboratories, criminalists, law enforcement, (d) The corroboration of any testimony of an prosecutor's offices, public defenders and private in-custody informant by evidence which inde defense lawyers, victim representatives and judges pendently tends to connect the defendant with to address the problems of DNA forensic technol the crime, special circumstance or circumstance ogy resources in California. The following concerns in aggravation to which the informant testifies. should be urgently addressed: IJ Training programs to include a component (a) The nature and scope of current capacity addressing the use of arrested or charged infor problems, backlogs of unprocessed evidence and mants as wih1esses. sys tems issues that impede the utilization of DNA forensic technology to its fullest potential.
JUDGES (b) The best practices that enhance collection Training programs to include a component and timely processing of DNA evidence, includ addressing the use of arrested or charged infor ing crime scene and rape kit evidence, to meet mants as wih1esses. the needs of the criminal justice system. (c) Recommendations for eliminating current DEFENSE ATTORNEYS backlogs and prevention of future bacldogs of unprocessed evidence in state and local public Training programs to include a component laboratories. addressing the use of arrested or charged infor mants as wih1esses. (d) Evaluation of the efficiency and effectiveness of the current organization of resources in the State of California, to determine what systems and strategies will most effectively serve the needs of the State of California. (e) Recommended strategies for training and such allegations are reported to report the results educational programs to address the shortages of any independent investigations of such allega of trained personnel to meet the staffing needs tions to the State Attorney General. of oime labs throughout the State of California. f) The creation or designation of a governmen (f) Assessment of the impact of "cold hits" tal agency or commission (which could be the upon local investigative, prosecution and office of the California Attorney General) with the defense resources. power and duty to formulate and apply standards to define who is qualified to perform analysis of (g) Reporting to the Legislature and Governor evidence in any particular scientific discipline on a regarding the legislative or administrative steps statewide basis. that must be taken to insure timely processing of evidence in California's criminal justice system. (a) The creation or designation of such an entity II should be preceded by an opportunity for the Forensic Science community and all affected THE LEGISLATURE AND THE GOVERNOR criminal justice agencies to be heard from, to D Emergency budget appropriations should be elicit a wide spectrum of views as to how these immediately introduced, to provide state funding to needs can best be met. staff the State Laboratory at the levels ascertained pursuant to the Department of justice's study of (b) Rigorous written examinations, proficiency appropriate staffing levels. testing, continuing education, recertifica- tion procedures, an ethical code, and effective f) The Legislature and the Governor provide disciplinary procedures could be part of such a adequate support to quickly respond to the needs program. identified by the Attorney General in his consul tation with state and local public laboratories, (c) Such an agency could also promulgate criminalists, law enforcement, prosecutor's offices, standards for scientific testing, report writing, public defenders and private defense lawyers, and the parameters of appropriate expert tes victim representatives and judges to address the timony; provide information to all pa11icipants problems of DNA forensic technology resources in the criminal justice system regarding the in California. evidentiary validity of forensic science evidence; identify and fund research needs and opportuni r!) The enactment oflegislation to require that any ties; and provide state-wide training programs allegation of professional negligence or miscon for forensic experts. duct that would affect the integrity of the results of a forensic analysis conducted by a California laboratory, facility or entity be repmied in a timely CRIME LAB DIRECTORS manner to the Disttict Attorney or other appropri The certification of the forensic experts they ate prosecutorial agency, and to require the District employ, and the use of cerLification wherever pos Attorney or other prosecutorial agency to which sible as a basis for promotion and salary decisions. POLICE AGENCIES qualifications and eA.'flerience. Full time defense Training programs for Cal.ifornia prosecutors, counsel should be compensated at rates equivalent defense lawyers, judges and police investigators be to comparable prosecutors. expanded to include greater attention to the appro priate use and validity of forensic science evidence. POLICE AGENCIES D All police and other investigative agencies JUDGES formulate policies and procedures to systematically Training programs be expanded to include greater collect any potential Brady material and, consis attention to the appropriate use and validity of tent with the statutory protections for personnel forensic science evidence. records, promptly deliver it to prosecutors. f) Training programs for peace officers include PROSECUTORS full treatment of the obligation to disclose BnJdy material to the pro secutor. Training programs be expanded to include greater attention to the appropriate use and validity of forensic science evidence. PROSECUTORS D All District Attorney Offices formulate and dis DEFENSE ATTORNEYS seminate a written Office Policy to govern Brady compliance. Training programs be expanded to include greater attention to the appropriate use and validity of (a) This policy should provide for gathering forensic science evidence. Brady material in a systematic fashion from all appropriate sources in a manner that is consis tent with Pitchess, tracking the delivery of the Professional Responsibility and material, and disclosing material determined to Accountability of Prosecutors be relevant. (b) The policy should provide that material and Defense Lawyers relevant to factual innocence or an affirmative THE LEGISLATURE defense be disclosed as soon as tl1at detennina The enactment oflegislation to provide that when tion is made, and p1ior to entry of a guilty plea. Counties contract for indigen t defense services in f) A list organized and maintained by each Dis trict criminal cases, the contract shall provide separate Attorney's office should be created pursuant to pro funding fo r accessing technology and criminal cedures and standards established by that office, in justice databases to the extent those are provided consultation with law enforcement agencies, peace by law, legal research tools, travel expenses, officer associations representing law enforcement fo rensic laboratory fees and costs, data processing, officers, and Public Defender Offices. modern exhibit capabilities, paralegals, investiga tors and expett witnesses with appropriate (a) The list should contain the names of police author of the Courfs order or opinion shall officers and other recurring witnesses as to notify the State Bar. whom there is information that may be subject (b) The report to the State Bar shall include the to disclosure requirements under Brady. State Bar member's full name, and State Bar (b) This list should include all facially credible number, ifknown. information that might reasonably be deemed to (c) When notifying the attorney involved pursu undermine confidence in a conviction in which ant to California Business and Professions Code the law enforcement employee is a material Section 6o86.7(b), the judge, magistrate or witness, and is not based upon mere rumor, Justice identified in this Rule shall also notify unverifiable hearsay, or an irresolvable conflict the attorney's supervisor, iflmown. in testimony about an event. f) The following changes in Canon 3D of the iJ Training programs be conducted to assure that California Code of Judicial Ethics (Changes indi all deputy district attorneys understand and apply caled in blue): office policies and procedures with regard to Brady disclosure and Pitchess motions. If feasible, joint D. Disciplinary Responsibilities training programs should be organized to include 1. Whenever a judge has reliable information prosecutors, public defenders and other n iminal that another judge has violated any provi sion of defense lawyers. the Code ofJudicial Ethics, the judge shall tal 2. If the order of contempt, modification or (b) Appearing in a judicial proceeding while reversal of judgment, imposition of judicial in toxica tecl; sanctions or imposition of a civil penalty is by (c) Engaging in willful unlawful discrimination the Court of Appeal or the Supreme Court, the in a judicial proceeding; (d) Willfully and in bad fai th withholding or f) Indication, in its annual report on the State Bar suppressing exculpatory evidence (including of California Discipline System, the number of impeachment evidence) which he or she is con Reportable Actions related to the conduct of pros stitutionally obligated to disclose. ecutors and defense lawyers by County. (e) Willful presentation of perjured testimony. (a) Defense lawyer data should be reported to distinguish public defenders, contract defend (f) Willful unlawful disclosure of victim or wit ers, appointed lawyers, and privately retained ness information. lawyers. (g) Failure to properly identify oneself in inter (b) Prosecutorial data should be reported to dis viewing victims or witnesses. tinguish district attorneys and city attorneys. Any doubt whether misconduct is egregious f!l Reconvening the Commission on the Delivery should be resolved in favor of reporting the of Legal Services to the Indigent Accused to make misconduct. recommendations regarding the adequacy of fund 3- A judge who is charged by prosecutorial com ing for defense services which meet acceptable plaint, information, or indictment or convicted standards of competent representation. of a crime in the United States, other than one that would be considered a misdemeanor not LAW SCHOOLS involving moral turpitude or an infraction under California law, but including all misdemean- Courses in legal ethi cs and continuing education ors involving violence (including assaults), the programs in legal ethics for prosecutors, defense use or possession of controlled substances, the lawyers and judges to include familiarity with the misuse of prescriptions, or the personal use obligations to report misconduct and incompetent or furnishing of alcohol, shall promptly and in representation by lawyers, and the obligation of writing report tha t fact to the Commission on lawyers to self-report, to the California State Bar, as Judicial Performance. well as familiarity with the consequences of such reports with respect to the State Bar's investigatory 4· A prompt report means as soon as practica and disciplinary authority. ble, and in no event more than thirty days after knowledge is acquired or a finding is made. Remedies THE STATE BAR CA LI FORNIA LEGISLATURE D Inclusion, in its annual rep011 on the State Bar D Services to assist with reintegration into society of California Discipline System, the number of be available to all those released from custody. Reportable Actions received from Courts pursu This would include assistance in locating hous ant to each of the fo ur categories in Business and ing, a cash allowance, clothing, and employment Professions Code Section 6o68.7(a), and each of counseling. the six categories in Canon 3D(2) of the California Code of Judicial Ethics . f) The time limit for presentation of a claim for shall commence upon the granting of post convic compensation for wrongful imprisonment of an tion relief in the form of a final judicial disposition innocent person, under California Penal Code of the underlying case. ~4901, be extended from six months after judg 1,;1 State funding for the Northern California ment of acquittal or discharge given, or after pardon Innocence Project and the California Innocence granted, or after release from prison, to two years. Project be res tored. ~A court granting judicial relief upon a claim of innocence be required to notifY the petitioner of the availability of compensation pursuant to Death Penalty California Penal Code §4900, and the time limits CALIFORNIA LEGISLATURE for the filing of such claims. D The Commission recommends tlut the IJ The requirement fo r a claim of victim com California Legislature immediately address the pensation, under Califomia Penal Code §4904, tmavailability of qualified, competent attorneys to to establish that the claimant did not, hy any act accept appointments to handle direct appeals and or omission either intentionally or negligently, habeas corpus proceedings in California death contribute to the bringing about of his or her arrest penalty cases: or conviction, be limited to a showing that the claimant did not intentionally subvert tl1e judicial (a) The Commission recommends fuat the process, so as not to exclude innocent persons who backlog of cases awaiting appointment of coun were victims of fa lse confessions or improperly sel to handle direct appeals in death penalty induced guilty pleas. cases be eliminated by expanding the Office of the State Public Defender to an authorized ~The level of statutory compensation, under strength of78 lawyers. This will require a 33% California Penal Code §4904, be substantially increase in the OSPD Budget, to be phased in increased from one hundred dollars per day of over a tluee year period. 1 incarceration, or a maximum of$36,soo, to at least the level available under the federal system of (b) The Commission recommends that the back compensation. There should also be an adjustment log of cases awaiting appointment of counsel to increase the award to reflect the annual rate of to handle habeas corpus proceedings in death inflation subsequent to enactment of this level of penalty cases he eliminated by expanding the compensation. Califomia Habeas Corpus Resource Center to an authorized strength of rso lawyers. This will [EI The enactment oflegislation to pmvide for require a sao% increase in the CHCRC Budget, automatic expungement of the record of convic to be phased in over a five year peti od.2 tion whenever a final judgment of conviction is set aside or vacated and the Court makes a finding of (c) The Commission recommends that fue staff the actual innocence of the defendant. ing of the Offices of the Attorney General which handle death penalty appeals and habeas corpus D The California Code of Civil Procedure be proceedings be increased as needed to respond amended to provide that a two year Statue of Limitations for professional malpractice claims l. Comm issioner Hersek abs tains from th is recommenda tion. 2. Comm issioner Laurence abst"ins from lhis rec ommendation. to the increased staff of the Office of the State ~The Commission recommends that upon the Public Defender and the California Habeas implementation of the Recommendations in Part Corpus Resource Center. A of this Report, changes to California statutes, rules and policies be seriously considered to (d) The Commission recommends that funds be encourage more factual hearings and findings in made available to the California Supreme Court state habeas proceedings in death penalty cases, to ensure that all appointments of private coun includ.ing a proposal to require petitions be filed sel to represent death row inmates on direct in the Superior Court, with right of appeal to the appeals and habeas corpus proceedings comply Coutts of Appeal and discretionary review by the with ABA Guidelines 4-I(A), and are fully com California Supreme Court. pensated at rates that are commensurate with the provision of high quality legal representation EJ The Commission recommends the establish and reflect the extraordinary responsibilities in ment of a California Death Penalty Review Panel, death penalty representation. Flat fee contracts to be composed of judges, prosecutors, defense should not be utilized unless an hourly alterna lawyers, law enforcement representatives and tive is available, and any potential conflicts of viclim advocates appointed by the Governor and interest between the lawyer maximizing his or the Legislature. It should be the duty of this Panel her return and spending for necessary investiga to issue an annual report to the Legislature, the tion, and expert assistance and other expenses Governor and the courts, gauging the progress are eliminated. of the courts in reducing delays, analyzing the costs of and monitoring Lhe implementation of f) The Commission recommends that funds be the recommendations of this Commission, and appropriated to fully reimburse counties for pay examining ways of providing safeguards and mak ments for defense services pursuant to California ing improvements in the way the California death Penal Code Section 987.9. penally law functions.4 D The Commission recommends that the D The Commission recommends that reporting California Legislature reexamine the current requirements be imposed to systematically collect limitations on reimbursement to counties for and make public cumulative data regarding all the expenses of homicide trials contained in decisions by prosecutors in murder cases whether Government Code Sections rs:wo-15204. or not to charge special circumstances andjor mThe Commission recommends that upon the seek the death penalty, as well as the disposi- implementation of the Recommendations in Part A tion of such cases by dismissal, plea or verdict in of this Report, serious consideration be given to a the trial courts. The Legislature should impose a proposed constitutional amendment to permit ·the requirement upon courts, prosecutors and defense California Supreme Court to transfer fully briefed counsel to collect and report any data other than pending death penalty appeals from the Supreme p1ivileged material designated by the California Court to the Courts of Appeal. This amendment Death Penalty Review Panel which may be neces should not be adopted without the provision of sary (r) to determine whether demographics affect adequate staff and resources for the Courts of Appeal, and provisions for ongoing monitoring by the Supreme Court.3 3. Commissioners Bellas. Co ttingham, Hill, Hing, Moulds, Ridolfi and Tollen 4. Commissioners Hill, Mayorkas and Totten oppose this recommendation. oppose lhis recommendalion. decisions to implement the death penalty, and if applied. Such policies should also provide for input so, how, (2) to determine what impact decisions to from the defense before the decision to seek the seek the death penalty have upon the costs of trials death penalty is made. and post-conviction review; and (3) to track the progress of potential and pending death penalty CALIFORNIA COUNTIES cases to predict the future impact upon the courts and correctional needs. The information should The Commission recommends that California be reported to the California Department ofJusti.ce counties provide adequate funding for the and the California Death Penalty Review Panel. appointment and performance of trial counsel in The information reported should be fully acces deaih penally cases in full compliance with ABA sible to the public and to researchers.s Guidelines 9.r (B )(r ), F(B), and 4.r(A)(2). Flat fee contracts that do not separately reimburse EJ The Commission recommends that Article investigative and litigation expenses should not be V, Section 8(a) of the California constitution be pe1mitted. Such con tracts should not be utilized amended to read as follows: unless an hourly alternative exis ts. In all cases, Alt . V, Section 8(a). Subject to application attorneys must be fully compensated at rates that procedures provided by statute, the Governor, are commensurate with the provision ofhigh qual on condition s the Governor deems proper, may ity legal representation and reflect the extraordinary grant a reprieve, pardon, and commutation, after responsibilities in death penalty representation. sentence, except in case of impeachment. The Governor shall report to the Legislature each reprieve, pardon, and commutation granted or den ied. stating the pertinen t f&cts and the reason~ fur-granting it. The Go"11errte-r-may not gtant a pardon or cormnutation to a petSOI't twice con victed of a fdony exeept on recomrttendahon of the Supret'tle Comt, 4 judges coueuning. mTh e Commission recommends that Penal Code Section 4813 be amended to make it cliscretiona1y rather than mandatmy that requests for clemency by a twice convicted felon be referred to the Board of Prison Terms for a written recommendation. CALIFOR NI A PROSECUTORS The Commission recommends that each District Attorney Office in California formulate a written Office Policy describing when and how decisions to seek the death penalty are made, such as who participates in the decisions, and what criteria are 5. Comm issioners Boscovich , Cottingham, Dunbar. Hill, Mayorkas, Fox and Totten oppose this recommendation. realize correcting the problem will require a large SEPARATE STATEMENT OF expenditure of funds, at a time when we are facing COMMISSIONER BRATTON a budget crisis, and may only TesuJt in the imposi tion of the penalty within ten years rather than 20 years. However, if we are to impose the penalty June 30, 2008 we should do it as expeditiously as possible, while Commissioners ensuring that each defendant has received a fa ir California Commission on the trial and full review of all legal and factual issues. Fair Administration of Justice I do not join in any proposal to limit the ulLimate punishment to life without the possibility of parole or in narrowing the list of special circumstances. I believe that the imposition of the Death Penalty Ill is an appropriate remedy. I further believe that William J. Bratton the imposition of the penalty should be imposed Chief of Police, Los Angeles wi thin a reas onable time and not unduly delayed. There must be an assurance that those convicted of murder and sentenced to death have received adequate representation, a full review of the legal issues involved and that they are in fact guilty of the crimes charged. 111e improvements in technol SEPARATE STATEMENT OF ogy and its increas ed use in the determination of COMMISSIONERS TOTTEN, BOSCOVICH, these cases has given me confidence that those COTTINGHAM, DUNBAR, HILL who will be convicted and sentenced to death will be guilty of the crimes charged. I have supported the previous recommendations of the Commission June 30, 2oo8 regarding eyewitness identification, use of jail house informants, confessions, scientific evidence, Commissioners the professional responsibility and accountability of California Commission on the prosecutors and defense lawyers to further ensure Fair Administration of Justice that this occurs. I support the position that California has a dys We respectfully dissent from the Report and functional system. A lapse of time of over two Recommendations on the Admin istrati on of the decades between sentence and imposition of Death Penalty in California, which was issued sentence is unacceptable. To require the fa mily of today by the California Commission on the Fair the victims to have to wait over Lo 20 years to have Administration of] ustice. Regrettably, we believe the promised punishment imposed only adds to the majority report indirectly assaults California's their pain and suffering and renders it an illusory death penalty by seeking to undenn ine public punishment. TI1e legislature and the people of the confidence in our capital punishment law and State of California should undertake a meaningful procedure. While the majority refrains from mak debate to determine how to co n.-ect this problem. I ing specific recommendations to wealcen this vo ter Exhibit C