California Supreme Court

By Maura Dolan
January 21, 2015

On the day justices Mariano-Florentino Cuellar and Leondra R. Kruger were sworn in this month, the California Supreme Court issued a 4-3 ruling leaving in place a death sentence for a man with a long criminal record.

With Gov. Jerry Brown’s newest appointees now on the court, the death row inmate plans to ask the justices to reconsider. If both new justices join the dissenters, the ruling could be overturned before becoming final.

“I am never optimistic,” said Cliff Gardner, the lawyer for the condemned man. “On the other hand, it was a 4-3 decision, and the court is changing.”
Brown appointees to Supreme Court renew hopes in death penalty cases

Past turnover on the state’s highest court has led to some immediate, dramatic reversals. In the long run, the new composition could affect an array of cases, including medical malpractice and medical marijuana, but probably will be most felt in the criminal arena. The court, long dominated by former prosecutors, has affirmed about 90% of the death sentences it has reviewed. Criminal defendants rarely win.

“Brown certainly seems to have reshaped this court in a fairly dramatic way,” said Jan Stiglitz, a co-founder of the California Innocence Project, which is representing a client in a case before the newly constituted court.

Instead of appointing former prosecutors, Stiglitz said, “Brown has brought in not just people from the outside but people who don’t have this background that sort of predisposes them to be cynical in criminal cases.”

But little experience in criminal law also can be a handicap, critics said.

Former prosecutors have “stared evil in the face and know what it looks like,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports the death penalty. None of the Brown appointees have had prior judicial experience.

“The academic view of criminal law is what produces bad decisions,” Scheidegger said.

Cuellar, the court’s only Latino, is a former Stanford law professor. Kruger, the only African American justice, has worked primarily in Washington, where she represented the federal government in cases before the U.S. Supreme Court. Justice Goodwin Liu, Brown’s first appointee last term, was a law professor at UC Berkeley.

Cuellar and Kruger both asked questions and followed arguments closely when they attended their first hearing on the court this month. Cuellar was animated and eager, Kruger soft-spoken and serious.

Legal analysts expect the Brown justices may form a new majority with Justice Kathryn Mickle Werdegar, a moderate to liberal Republican appointee. Unlike the other Republican appointees, she was never a prosecutor. She worked for the federal government on civil rights matters and as staff attorney on appellate courts.

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