News Clips from the

Administrative Office of the Courts

2-23-10

Please click the title below to link to the desired article.

High Court Weighs L.A. Role in Child Abusers List ........................................................................... 2

With Reversal, Ninth Circuit OKs Privacy Suit ................................................................................... 4
Pilot With HIV Can Sue Agency ............................................................................................................ 5
U.S. Judge 'Inclined' to Enjoin Cooley .................................................................................................. 6
Senator Calls for Bybee Resignation ..................................................................................................... 8
Jerome Nadler ........................................................................................................................................ 10
Death Penalty Appeals Riddled With Delay ....................................................................................... 13
Lack of Training in Juvenile System Risks Accountability ............................................................... 15

1
Daily News Clips from the
Office of Communications & Office of Governmental Affairs
Administrative Office of the Courts
2/23/10
High Court Weighs L.A. Role in Child Abusers List
By Lawrence Hurley
Daily Journal
2/23/10

WASHINGTON - The U.S. Supreme Court agreed Monday to decide under what circumstances a
couple could sue Los Angeles County for not taking them off a statewide list of child abusers
after the criminal case against them was dropped.
The court will have to decide whether plaintiffs can win injunctive relief against a local
municipality without clearly establishing whether the defendant was to blame for the underlying
constitutional violation.
The case was one of two granted Monday, both out of the 9th U.S. Circuit Court of Appeals. The
other is a Sixth Amendment ineffective assistance of counsel case.
The Los Angeles case hinges on the 9th Circuit's interpretation of a 1978 Supreme Court case,
which stated that plaintiffs must show that a constitutional violation was the result of a "policy,
custom, or practice" that could be attributed to the local governmental body before they can be
awarded injunctive relief, declaratory relief, or attorney fees. Monell v. Department of Social
Services, 436 U.S. 658.
Los Angeles County, the defendant in the case, maintains that the 9th Circuit is the only circuit
that allows plaintiffs to seek injunctive relief and attorneys' fees before establishing whether the
local government played a key role in the violation.
The dispute arose after a Los Angeles couple ended up on the state's database of child abusers.
Los Angeles v. Craig Arthur Humphries, 09-350.
Craig and Wendy Humphries found themselves on the list after their 15-year-old daughter
accused them of abuse in April 2001. The criminal case against them was dismissed four months
later and their arrests expunged from the record, but they could not get their names off the list
because there is no mechanism to do so. They sued Los Angeles County and the state in August
2002, alleging various violations of their constitutional rights, including their 14th Amendment
right to due process. They sought removal from the list, attorneys' fees, and damages.
In a November 2008 opinion, the 9th Circuit held that there had been an unconstitutional due
process violation because there was no way to challenge inclusion on the list. The court allowed
the couple to pursue their lawsuit against the county and the state. The county then sought
Supreme Court review on the question raised by Monell, which does not apply to the claims
against the state.
"The lack of any meaningful, guaranteed procedural safeguards before the initial placement on
[the database] combined with the lack of any effective process for removal ... violates the
Humphries' due process rights," Judge Jay S. Bybee wrote in the opinion on behalf of a
unanimous three-judge panel.
Timothy T. Coates of Greines, Martin, Stein & Richland in Los Angeles, who represents the
county, said the 9th Circuit is "off the reservation" when it comes to its interpretation of
Supreme Court precedent on the issue.
If the high court reverses the 9th Circuit ruling, municipalities like Los Angeles will have "greater
protections" from liability when enforcing state laws that lead to constitutional violations, he
added.
The Humphries' lawyer, Andrew J. Pincus of Mayer Brown in Washington, declined to comment.

2
Daily News Clips from the
Office of Communications & Office of Governmental Affairs
Administrative Office of the Courts
2/23/10
In the second case granted Monday, the court will decide whether a defendant's Sixth
Amendment rights to effective counsel are violated if his attorney fails to use forensic evidence
in trying to establish reasonable doubt. Harrington v. Richter, 09-587. It's an area of the law the
Supreme Court has devoted considerable attention to in recent years in clarifying what exactly
constitutes effective lawyering.
Joshua Richter was convicted of murdering a man and injuring another during a 1994 robbery in
Sacramento. Richter's attorney, Sacramento sole practitioner Mark Stewart Axup, did not seek
analysis on a pool of blood and blood spatters that were found at the scene. In 2001, U.S.
District Judge James K. Singleton Jr. of the Eastern District of California denied Richter's habeas
corpus petition, saying Axup's decision not to focus on the blood was a reasonable tactical call.
In 2008, a 9th Circuit panel affirmed, but in August 2009, an en banc court found in favor of
Richter, with four judges dissenting.
The majority opinion, written by Judge Stephen Reinhardt, stressed that the real problem was
that Axup had failed to conduct an adequate investigation before trial. In dissent, Judge Bybee
criticized the majority opinion as "a model of the intrusive post-trial inquiry into attorney
performance."
In other action, the Supreme Court elected Monday not to review a California 3rd District Court
of Appeal decision finding that there is a property right to marijuana plants. Butte County v.
Superior Court, 09-675.
David Williams sued Butte County and its officials after he was forced to destroy marijuana
plants he was growing. He argued that his constitutional right to possess the plants was
violated. Butte County Superior Court Judge Barbara Roberts declined to dismiss the complaint
and was affirmed by the 3rd District in a July 2009 ruling. The California Supreme Court later
declined to hear the case.
The county claims that the lower court ruling violates the federal Controlled Substances Act,
which defines marijuana as illegal contraband. That law pre-empts the 1996 California law that
legalized the use of marijuana for medicinal purposes and the later 2003 law that clarified the
issue, the county argued.

Back to Top

3
Daily News Clips from the
Office of Communications & Office of Governmental Affairs
Administrative Office of the Courts
2/23/10
With Reversal, Ninth Circuit OKs Privacy Suit
Kate Moser
The Recorder and www.callaw.com
02-23-2010

SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals has given a San Francisco man
another chance to pursue a case for damages against the government after information on his
HIV status was shared among several federal agencies.
Noting that the Ninth Circuit hadn't previously determined the meaning of "actual damages"
under The Privacy Act of 1974, Monday's opinion held that people who suffer after federal
agencies violate the act are entitled to relief even if their damages aren't economic.
"Congress clearly intended that when a federal agency intentionally or willfully fails to uphold its
record-keeping obligations under the act, and that failure proximately causes an adverse effect
on the plaintiff, the plaintiff is entitled to recover for both pecuniary and nonpecuniary injuries,"
Judge Milan Smith Jr. wrote in Cooper v. Federal Aviation Administration , 10 C.D.O.S. 2124 . He
was joined by Judge Michael Daly Hawkins and Eighth Circuit Senior Judge Myron Bright, who
was sitting by designation.
A pilot, Stanmore Cooper, sued in 2007 after the Social Security Administration gave his medical
information to the Federal Aviation Administration. The FAA was casting a wide net for pilots'
benefit information as part of a broad investigation to uncover efforts by medically unfit
individuals to obtain certifications to fly.
Cooper hadn't told anyone but family and friends about his HIV status, and when he discovered
that his medical information had been disclosed, he suffered "humiliation, embarrassment,
mental anguish, fear of social ostracism, and other severe emotional distress," according to his
complaint.
A year later, Northern District Chief Judge Vaughn Walker agreed with Cooper that the agencies
had violated the Privacy Act, which restricts federal agencies from disclosing information
gathered about individuals for one reason to other agencies for an unrelated purpose. But
Walker held that nonpecuniary damages, including emotional distress, didn't constitute "actual
damages."
On Monday the Ninth Circuit reversed and remanded the case back to district court.
The opinion "provides a remedy for individuals whose private and confidential information is
misused by the government," said Cooper's lawyer, David Bird, an associate in the Pittsburgh
office of Reed Smith. "That privacy interest is deeply personal and not limited to economic or
monetary concerns, but in fact is usually the type of personal concern that will be nonmonetary
in character."
A spokesman for the Department of Justice had no immediate comment late Monday.
The government had argued in court papers that the legislative history provided no clear
indication that Congress wanted to make the government liable for money damages for "all
manner of intangible claims."

Back to Top

4
Daily News Clips from the
Office of Communications & Office of Governmental Affairs
Administrative Office of the Courts
2/23/10
Pilot With HIV Can Sue Agency
By John Roemer
Daily Journal
2/23/10

SAN FRANCISCO - A gay man with HIV concealed his condition to get a pilot's license but
disclosed his disease to qualify for Social Security disability benefits. Despite that contradiction,
the 9th U.S. Circuit Court of Appeals Monday reversed a district judge and held that Stanmore C.
Cooper of San Francisco can sue the agencies that shared his information, discovered his
medical secret and prosecuted him. Cooper v. Federal Aviation Administration, 2010 DJDAR
2626.
Cooper feared the stigma of being known as a gay man with HIV, but he believed assurances
that his medical information would remain closely held by Social Security.
The facts caught up with him in 2002 when inter-agency officials launched a joint criminal
investigation and exchanged files as part of "Operation Safe Pilot," which aimed to uncover
medically unfit individuals with licenses.
Data from Social Security nailed Cooper's failure to tell aviation authorities about his HIV status.
The FAA revoked his license and prosecutors in 2005 indicted him on three counts of making
false statements to a government agency.
Cooper was diagnosed with HIV in 1985. He knew he would not qualify for a renewal of his
aviation medical certificate if he disclosed his medical condition because, in 1994 when he began
his deception, the FAA did not issue medical certificates to individuals with HIV who were taking
antiretroviral medications. That practice later ended, but officials still held him accountable for
making false statements.
Cooper pleaded guilty to a lesser charge and received two years' probation and a $1,000 fine.
The inter-agency probe, however, ran afoul of the Privacy Act of 1974, which forbids any agency
from disclosing personal records to another. The Act permits lawsuits against an agency for
intentional violations and allows for the recovery of "actual damages."
Cooper sued in 2007, accusing the government of causing him "to suffer humiliation,
embarrassment, mental anguish, fear of social ostracism, and other severe emotional distress."
Chief U.S. District Judge Vaughn R. Walker of San Francisco granted summary judgment to the
government in 2008, holding that Cooper was ineligible to sue because he suffered nonmonetary
damages.
But Monday's opinion by Circuit Judge Milan D. Smith Jr. held that the privacy act's "actual
damages" standard includes mental distress, because that kind of harm is most likely to follow
disclosure of intimate information.
Wrote Smith, "It is difficult to see how Congress's stated goal of subjecting federal agencies to
civil suit for any damages resulting from ... violation of the [Privacy] Act could be fully realized
unless the Act encompasses both pecuniary and nonpecuniary injuries."
Pro bono lawyers at San Francisco's Reed Smith represented Cooper.

Back to Top

5
Daily News Clips from the
Office of Communications & Office of Governmental Affairs
Administrative Office of the Courts
2/23/10
U.S. Judge 'Inclined' to Enjoin Cooley
By Greg Katz
Daily Journal
2/23/10

LOS ANGELES - A new prosecutors' union won a skirmish against District Attorney Steve Cooley
on Monday when a federal judge signaled that he will enjoin Cooley from using management
tactics that some of his deputies claim are union busting.
Weighing in on the long-running and personal feud between Cooley and union president Deputy
District Attorney Steve Ipsen, U.S. District Judge Otis D. Wright II said he is "inclined to issue" a
preliminary injunction requested by the Association of Deputy District Attorneys, the nascent
union representing county prosecutors, in One Unnamed Deputy District Attorney v. County of
Los Angeles, 09-07931 (C.D. Cal., filed Oct. 30, 2009).
The union's moving papers argued that Cooley has been punishing union leaders with harsh
performance reviews and unwanted assignments, and that the county is charging union
members an average of $100 more each month for health care. The union asked Wright to order
Cooley to stop violating "constitutional rights by retaliating against prosecutors who have or are
considering joining a union." It also asked him to even out health care premiums.
In questioning county lawyers at Monday's hearing, Wright asked what the explanations were for
the repeated transfers of prosecutors on the union's bargaining team, allegations which are at
the heart of the lawsuit.
"Is that just a coinkydink?" he asked.
David Wilson of Manning & Marder, Kass, Ellrod, Ramirez responded that the deputies are not
being punished for their union activism, but "in this situation, it happens they're also active in
the negotiating team for the ADDA."
Wilson maintained that the union had not met the burden of proof necessary to win an
injunction, and that disputes belong at the bargaining table rather than federal court.
Wright had not yet issued a written order Monday afternoon, and indicated he may not grant one
of the union's requests: limiting the office's say in assigning cases to deputies. He also inquired
about laws that might allow the health care benefit discrepancy.
Cooley, who announced last month that he is running for Attorney General, referred calls to
Wilson.
"We think we made some headway in the oral argument," Wilson said. "We're looking forward to
a favorable outcome."
But union lawyer Matthew G. Monforton, a former county prosecutor now living in Montana, had
harsh words for the district attorney.
"It's a sad commentary that Steve Cooley has to have a federal order to make him follow the
law," Monforton said.
Wright's decision comes in the midst of a fierce fight between Cooley and Ipsen, who challenged
Cooley in a 2008 county election and lost.
If finalized, an injunction may portend that the union will play a larger role in making office
policies. Ipsen and other union board members, Cooley's most vocal critics, contend that
changes in employment policies should be done with the union's consultation.
The union has 300 dues-paying members, Ipsen said after the hearing, a number he claims is
slipping because of what he calls Cooley's anti-union actions.

6
Daily News Clips from the
Office of Communications & Office of Governmental Affairs
Administrative Office of the Courts
2/23/10
After the hearing concluded, attorneys involved in the case of Deputy District Attorney David
Eng came to the podium for a pre-trial hearing in that unrelated matter. Eng is also alleging that
Cooley retaliated against him.
Eng's claims do not involve the union, but he is a member, according to his lawyer, D. Jay Ritt of
Bensinger, Ritt, Tai & Thvedt in Pasadena.

Back to Top

7
Daily News Clips from the
Office of Communications & Office of Governmental Affairs
Administrative Office of the Courts
2/23/10
Senator Calls for Bybee Resignation
By Robert Iafolla and John Roemer
Daily Journal
2/23/10

WASHINGTON - Democratic lawmakers may call a 9th U.S. Circuit Court of Appeals judge and a
California law professor to Capitol Hill to testify as soon as Friday about their complicity in legally
sanctioning torture.
But overall congressional reaction to a long-awaited Justice Department report on Judge Jay S.
Bybee and UC Berkeley School of Law professor John Yoo's infamous memos has been muted.
A report from the Justice Department's office of professional responsibility, issued late Friday,
concluded Bybee and Yoo had committed "professional misconduct," a finding that would prompt
a referral to state bar associations for possible discipline. But a top Justice Department official
downgraded and overruled the findings in a separate memo, writing that the pair used "flawed
legal reasoning," which does not trigger a referral.
A handful of lawmakers issued statements in response to the report, with the sharpest coming
from Senate Judiciary Committee Chairman Patrick J. Leahy, D-Vt., who called for Bybee to
resign. Leahy also scheduled a hearing on the report for the end of this week.
Rep. Lamar Smith of Texas, the top Republican on the House of Representatives' Judiciary
Committee, agreed with the Justice Department's decision not to pursue disciplinary action
against Yoo or Bybee, saying in a statement that "they did their best to follow the law and
provide intelligence officials with legal guidelines." Smith added, "It is important that future
government lawyers know that their efforts to protect Americans will not be criminalized by
future administrations."
Some of Capitol Hill's most strident critics of Bush-era antiterrorism policies, so far, have been
noticeably silent.
The lukewarm reaction to the report stands in sharp contrast to the furor sparked last April by
the release of the actual memos providing legal justification for torture, penned by Bybee, Yoo,
and Stephen Bradbury when they were Justice Department lawyers in the Bush administration.
Calls arose for impeachment, disbarment or other professional sanctions.
New York Democrat Rep. Jerrold Nadler, for instance, called for Bybee's impeachment and
Wisconsin Democrat Sen. Russell Feingold said the memos suggested grounds for such action.
But Nadler and Feingold have yet to weigh in on the most recent report, and their spokesmen
did not respond to phone calls and e-mails seeking comment.
Sens. Richard J. Durbin, D-Ill., and Sheldon Whitehouse, D-R.I., responded to the report by
praising Attorney General Eric H. Holder Jr. for his handling of the investigation and blasting
Bush administration officials for the torture program.
"Mr. Bybee and Mr. Yoo may keep their law licenses, but they will not escape the verdict of
history," Durbin said in a statement.
Maureen E. Mahoney, a partner with Latham & Watkins representing Bybee, said in a press
release that the report was a "vindication" and "the matter has now been resolved in [Bybee's]
favor."
Yoo did not respond to a request seeking comment.
Critics in the human rights and liberal legal communities said the report shows the need for
accountability for the torture program.

8
Daily News Clips from the
Office of Communications & Office of Governmental Affairs
Administrative Office of the Courts
2/23/10
Christopher Anders, senior legislative counsel for the American Civil Liberties Union, said the
apparent difference in reaction following the release of the torture memos and last week's report
should be chalked up to the timing of the latter's release. "This is entirely because it was
released after 5 p.m. on Friday during congressional recess week when there were very few
people around," he said.
Critics said the Justice Department's timing of the release, as well as its watering down of its
own ethics lawyer's original findings, was designed to minimize the impact.
Marge Baker, executive vice president of the liberal group People for the American Way,
commended Leahy and House of Representatives Chairman John Conyers Jr., D-Mich., for swiftly
scheduling hearings to examine the professional responsibility report.
Yoo and Bybee could be called to testify, but no witnesses have been announced. The Senate
hearing is set for Friday. Conyers has not scheduled the House hearing, except to say it would
be in the "near future."
The controversy over the torture memos has engrossed lawyers in the legal ethics field, said
Diane L. Karpman of Los Angeles, a former chairwoman of the Association of Professional
Responsibility Lawyers. She noted that the report on Bybee and Yoo's work drafting the memos
has been delayed so long that there would be statute of limitations problems with State Bar
referrals no matter what the investigation said.

Back to Top

9
Daily News Clips from the
Office of Communications & Office of Governmental Affairs
Administrative Office of the Courts
2/23/10
Jerome Nadler
Santa Clara County Superior Court Judge Jerome Nadler likens his job to working in an
emergency room: chaotic, fast-moving, and requiring quick decision making.

By Craig Anderson
Daily Journal
2/23/10

SAN JOSE - Each weekday, Santa Clara County Superior Court Judge Jerome Nadler runs the
felony arraignment calendar in a crowded basement courtroom in the Hall of Justice.
The room is always filled with attorneys, in-custody defendants coming in and out, victims, and
family members waiting in the gallery for cases to be called. Attorneys describe it as "controlled
chaos," and say Nadler, who has been doing the assignment since 2001, is a master of it.
"He's sort of like a conductor with an orchestra," said Craig Kennedy, a Santa Clara County
deputy public defender who works in Nadler's courtroom. "It could easily get out of control if you
didn't have a judge who knows how to handle it."
Two-thirds of all felony cases, not counting narcotics charges, come through his courtroom at
some point. Many of those cases are resolved there, usually with county jail time, Nadler said.
But those settlements are not achieved in a quiet atmosphere. Deals are struck in between the
court's ongoing rush of cases.
"I don't have time other than resolving these cases at the bench," Nadler said. "I think I'm good
at that. I've had a lot of time to become good at that."
While Nadler has experience handling jury trials, he always has preferred high-volume calendars
- drug court, a domestic violence calendar, and felony arraignment. "If I was a doctor, I would
be an emergency room doctor," he says.
Nadler is known for his witty sense of humor and employs it often in court, often getting
chuckles even from in-custody defendants. The judge admits he enjoys talking with people.
"It is a very social calendar," Kennedy said. "It's almost like hosting a party."
Santa Clara County prosecutor Cindy Sevely said judges in Nadler's department must "go with
the flow. You're constantly juggling numerous balls in the air. But I don't think he is distracted
by the different things going on in his courtroom."
Sevely praises Nadler's easygoing personality and ability to treat people, including mentally ill
defendants who sometimes start "spouting off," with respect. But the judge is no pushover.
"He does command respect in his courtroom and is able to put defendants and attorneys in their
place if need be," Sevely said.
"He's not always happy with me," said Sylvia Perez, a deputy public defender. "I have been
yelled at by him before, or sent to preliminary hearings when I didn't think I was ready. But I
know he is doing his best."
"He knows how to strike the right balance," Perez added. "That's an amazing skill to have. I
think he enjoys his job very much."
Nadler agrees.
"I like the experience where you seem to be accomplishing a lot in a short period of time," he
said.
The judge views his job as settling cases that are resolvable. "These are cases that are not
newsworthy but are the bulk of the work of the court," Nadler said.

10
Daily News Clips from the
Office of Communications & Office of Governmental Affairs
Administrative Office of the Courts
2/23/10
A native of New Jersey, Nadler got married shortly after college to his wife, Judy, who went on
to become mayor of Santa Clara and now teaches government ethics at the Markkula Center for
Applied Ethics at Santa Clara University. The couple has two adult children.
Nadler himself attended Santa Clara University School of Law, graduating in 1977. He went to
work for Santa Clara County, becoming an expert on jail overcrowding and drafting criminal
justice legislation while working in the county executive's office.
In 1983, Nadler joined the Santa Clara County district attorney's office, where he started the
environmental protection unit a year later. "It was a brand new area of prosecution at the time,"
he recalls.
Nadler ran for district attorney in 1990, facing off against George Kennedy in a testy campaign
between two county prosecutors.
"Luckily, I didn't win," Nadler said. "I didn't think this way at the time, but it's probably the best
thing that ever happened to me."
Two years later, Nadler ran for office again, for municipal court judge against two opponents. He
won and took office in 1993. Nadler became a superior court judge later in the decade when the
courts consolidated.
On the first Saturday of each month, Nadler presides over Santa Clara County's Outreach Court
in San Jose. Nadler leaves the Hall of Justice behind to find homeless people who want to clear
their records of outstanding warrants they usually get when they do not show up in court after
being cited for sleeping in parks or riding the light rail system without a ticket.
The judge takes a look at their cases and imposes community service on the defendants. "They
benefit from having their warrants recalled and it also allows them to apply for jobs," Nadler
said.
For his part, Nadler enjoys the informal court because it gives him a chance to talk to
defendants directly. "It's rewarding to try to help these people resolve all of these outstanding
cases," he said.
Santa Clara County prosecutor Christine Hudson credits Nadler for standing up for victims. The
judge insists that restitution be made before sentencing.
"He wants proof not only that insurance will cover it but that [victims] got their money back,"
Hudson said. The system also works for the defendants, she said, because they get a lesser
sentence for having made restitution.
Attorneys marvel at Nadler's ability to keep track of the scores of cases he deals with each day,
often resolving them quickly. "Because he has been doing it for so long, he can evaluate the
case correctly and make the right offer," said prosecutor Victoria Brown.
Here is a list of recent cases handled by Judge Nadler:
People v. Mayfield, CC 822445; vehicular manslaughter
Prosecutor: Peter Waite, Santa Clara County district attorney's office
Defense attorney: Allen Ruby, Ruby & Schofield, San Jose
People v. Jimenez, CC 767075; child endangerment
Prosecutor: Jeff Rosen, Santa Clara County district attorney's office
Defense attorney: Ken Mandel, Santa Clara County public defender's office
People v. Schwartzmiller, CC 592684; child molestation and sexual assault
Prosecutor: Steve Fein, Santa Clara County district attorney's office
Defense attorney: Melinda Hall, Santa Clara County public defender's office
People v. Darcy, CC 899652; grand theft
Prosecutor: Merle "Bud" Frank, Santa Clara County district attorney's office
Defense attorney: Edward Sousa, San Jose
People v. Hatton, CC 511866; involuntary manslaughter
11
Daily News Clips from the
Office of Communications & Office of Governmental Affairs
Administrative Office of the Courts
2/23/10
Prosecutor: Dan Nishigaya, Santa Clara County Superior Court judge, former deputy district
attorney
Defense attorney: Craig Kennedy, Santa Clara County public defender's office

Back to Top

12
Daily News Clips from the
Office of Communications & Office of Governmental Affairs
Administrative Office of the Courts
2/23/10
Death Penalty Appeals Riddled With Delay
By Andrew Love
Daily Journal
2/23/10

In 1996, in the wake of the Oklahoma City bombing, the Anti-Terrorism and Effective Death
Penalty Act (AEDPA) became law. The Act's primary target was the perceived delay in death
penalty appeals. Experience has shown in the 15 years since its enactment, however, that
AEDPA has not created a more expeditious death penalty process, and many of its complex and
confusing provisions actually have caused more, not less, delay due to litigation over their
meaning and application. One area in which AEDPA has been effective is undermining the role of
federal courts in reviewing the fairness of death penalty trials.
One of AEDPA's key provisions limits the scope of federal court review of state court judgments.
Prior to AEDPA, federal judges engaged in de novo review, i.e., they had independence to make
their own determination as to whether errors in state trials warranted relief. However, under
AEDPA, it is not sufficient for a federal court to find a reversible error in the trial - no matter how
egregious. In order to reverse a conviction or sentence, it must now also find that the state
appellate court's determination of the claim was unreasonable as well as erroneous.
Thus, in one death penalty case, Brown v. Payton, the U.S. Supreme Court rejected a claim that
the jury instructions and prosecutor's argument misled the jury into ignoring evidence of
Payton's post-crime religious conversion. Although the federal court of appeal granted relief, the
Supreme Court reversed, and applying AEDPA, found that the California Supreme Court's earlier
ruling that there was no error was not unreasonable. Justice Stephen G. Breyer's concurring
opinion acknowledged the critical difference made by the requirements of AEDPA in reviewing
the case. He stated that if he were a California state judge, "I would likely hold that Payton's
penalty-phase proceedings violated the Eighth Amendment." In other words he believed there
was a "reasonable likelihood" that the jury that sentenced Payton to death was misled in a way
that prevented them from considering evidence that would have supported a life sentence.
However, because Justice Breyer believed that the California Supreme Court's adjudication of
the issue was wrong, but not unreasonable, he was compelled to reject the claim.
This would be an outrageous outcome for anyone not lost in the thicket of federal habeas corpus
procedure. It was reasonably likely that the jury was misled as to what evidence it could
consider in determining whether a man should live or die, and the California high court may
have wrongly determined there was no error. However, since a majority of the Supreme Court
determined that the California court's ruling was not unreasonable as well as being erroneous, it
was left powerless to do anything about it.

A more colloquial illustration of this folly comes from a recent oral argument before the U.S.
Supreme Court in a case involving the test for determining whether African Americans were
unconstitutionally under-represented in the jury pool. The state's lawyer argued that the
Supreme Court need only find that the state court acted reasonably in determining that there
was no constitutional violation, regardless of whether the state court acted correctly. When
Justice Breyer expressed discomfort with the idea of writing an opinion that said "2 and 2 is 6,"
Chief Justice John G. Roberts Jr. suggested that under AEDPA "all you have to do is say: 2 plus 2
is somewhere between 3 and 5." The blithe acceptance of such imprecision, particularly when
applied to capital cases, is remarkable.

13
Daily News Clips from the
Office of Communications & Office of Governmental Affairs
Administrative Office of the Courts
2/23/10
This deference to state court decisions presupposes that state courts actually perform careful
and meaningful review of state court trials. Unfortunately, there is little evidence that state
courts are doing so. Here, in California, the state Supreme Court has the highest affirmance rate
of any state court in the country. Its opinions consistently find either the absence of trial errors
or find any such errors to be harmless. Indeed, in 2009, the Court upheld the conviction and
death sentence in 24 of the 25 capital appeals it decided. It also denied 33 capital habeas
petitions, granting relief in none. These cases will now move into federal court subject to AEPDA.
The limitations on federal review have done nothing to cure the delay in adjudicating death
penalty cases because careful consideration by federal courts was never the problem. The glacial
pace of the process stems from what is universally recognized as a dysfunctional system caused
by the overbreadth of the California statute, in which virtually every first degree murder
becomes a death-eligible case - resulting in the largest death row in the United States - and the
lack of experienced, qualified post-conviction counsel.
There are legal arguments as to why AEDPA's standard of review is unconstitutional. But on a
more fundamental level there is something grotesque about limiting the federal courts' ability to
reverse state court judgments as long as the state courts are not unreasonably wrong - when
the state courts are clearly wrong. The fact that this is not obvious shows that we have come to
care far more about ensuring that each death penalty case simply reaches a resolution,
regardless of whether it is a just one.
Andrew Love, a San Francisco attorney, has dedicated his practice to representing inmates on
California’s death row. He is also on the board of directors of Death Penalty Focus.

Back to Top

14
Daily News Clips from the
Office of Communications & Office of Governmental Affairs
Administrative Office of the Courts
2/23/10
Lack of Training in Juvenile System Risks Accountability
By Eugene Hyman
Daily Journal
2/23/10

Juvenile judges represent the face of integrity for the juvenile court system, each with
responsibilities that go far beyond being fair, neutral, and impartial.
The juvenile judge is required to hold accountable all who appear before the dependency and
delinquency court, not just the juvenile and his or her parents. While the delinquency court is
similar to a criminal court with respect to procedural due process, the court is trusted with the
rehabilitation responsibilities that are not imposed in the adult criminal system.
Therefore, it is the responsibility of the court, all counsel, probation, probate investigators and
social services to make sure that children receive the services they need in order to thrive and
succeed. The court must be able to find and use all the helpful information available to make a
best informed decision whenever possible.
Traditionally, juvenile judges are not involved in the training requirements or other prerequisites
of prosecutors, public defenders (or conflict counsel), county counsel, social workers (in
dependency) or probation officers. This leaves for the court, predominately, the task of
reviewing appointed counsel and perhaps appointed experts, with respect to their qualifications.
Rarely, if ever, are any further qualification reviews made. Nor are there any continuing
professional education standards set.
This is a serious error that has allowed many who appear before the juvenile court in various
roles to escape accountability for shortcomings that negatively impact our juvenile charges.
Rarely is one family in a single division of the court. Criminal, family, probate, dependency, and
delinquency courts are frequent destinations. It is obvious that all would benefit by having a
single judge adjudicating all cases involving one family. Regrettably, this reform is far off into
the future.
In order to minimize harm to the family and the community, the next best plan would be one of
collaboration, informed decision making, and consistent action taken by the courts.
This is only possible if each division of the court is made aware of the information contained in
other files of the court and if each judge and participant is able not only to obtain the same
reports but have received the appropriate education and training to make informed use of the
information. For example, too many prosecutors and defense counsel want to limit their
participation in juvenile delinquency court to investigation, preparation, and litigation, and defer
to others, such as probation officers or social workers, when the court acquires jurisdiction over
a minor and a depositional decision is needed.
Another example is in family court where a child and his or her family are most likely to be
assessed by a family court evaluator who, while educated in child developmental issues,
probably has little experience with the criminal, probate, dependency, or delinquency courts.
Therefore, they are less likely to be able to utilize information coming from those courts.
A juvenile probation officer in delinquency court is not likely to have much education or
experience regarding child developmental issues and is more likely to make depositional
recommendations based upon a preserved need to hold the juvenile accountable. Reports from
the family, probate or dependency law divisions of the courts are therefore less likely to be
utilized by the probation officer. More and more juvenile probation departments are presently
viewing themselves as arms of law enforcement and less as agents of rehabilitation.

15
Daily News Clips from the
Office of Communications & Office of Governmental Affairs
Administrative Office of the Courts
2/23/10
A common theme in family and juvenile dependency court is developmental psychology, which is
important in custody decisions and in evaluating "best interest of children" recommendations,
yet it is rare that attorneys, judges, and probation officers have that knowledge, thereby
requiring that more reliance be placed on "experts."
Mental disorders have become more commonly diagnosed in juveniles, yet few understand the
commonly prescribed medications and what results may be expected from their use. What kind
of depositional or custody orders are more likely to be most effective or harmful?
Alcohol and other drug abuse issues are frequently present in juvenile, probate, and family law
cases, yet frequently those charged with making recommendations to the court do not fully
understand best practices in order to address those issues in appropriate orders.
Take one look at our jail and prison population and it becomes obvious that most of those
locked-up cannot read. It is therefore incumbent on all appearing in the juvenile courts to be
experts on all aspects of educational issues and rights. All too often, no one in court is an expert
on this issue and the matter is deferred to the supervising probation officer or social worker to
work with the ward/dependent and the school. Without judicial review hearings for accountability
purposes of all participants, this issue will not receive the attention it deserves.
Domestic violence related concerns also visit all divisions of the superior court - yet it is rare for
the judges and attorneys to undergo specific training as to what danger signs to look for, what
are the best evidenced based methods to protect victims and children, and how to hold batterers
accountable, even in a non criminal setting.
It is up to the judges, prosecutors, and defense attorneys in delinquency court and dependency
court to fully utilize additional information from each other and from the family and probate
courts, which is only possible if they have received appropriate training in the different
perspectives involved.
In this time of economic calamity, it is too easy to say that there are insufficient resources to
provide the necessary training. To give credence to this argument is to abandon the court's
responsibility and the responsibility of all who appear before the juvenile court or the other
divisions of the court having jurisdiction over children.
Judges are required to be advocates for the juvenile system. They must be creative and secure
the required training. Solely basing the ability to obtain educational resources on finding a pot of
money is to do an injustice to those most vulnerable.
Eugene M. Hyman is a judge of the Superior Court of California in San Jose where he has
presided over domestic violence cases. He is also the instructor of a domestic violence law
seminar at the Santa Clara University School of Law.

Back to Top

16
Daily News Clips from the
Office of Communications & Office of Governmental Affairs
Administrative Office of the Courts
2/23/10