Hill v. Nelson
| Decision Date | 24 August 1967 |
| Docket Number | No. 47318.,47318. |
| Citation | 272 F. Supp. 790 |
| Parties | Joshua HILL, Frederick Saterfield, Robert Page Anderson and all other persons similarly situated, Petitioners, v. Louis E. NELSON, Warden, San Quentin Prison, Respondent. |
| Court | U.S. District Court — Northern District of California |
Jerome B. Falk, Jr., E. Roy Eisenhardt, Harry J. Kreamer, San Francisco, Cal.; Clinton White, Oakland, Cal., Richard Bancroft, Garfield Stewart, Chairman Legal Redress Committee, N.A.A. C.P., San Francisco, Cal.; Jack Greenberg, Leroy D. Clark, Charles S. Ralston, N.A.A.C.P. Legal Defense & Educational Fund, Inc., New York City; Anthony G. Amsterdam, Philadelphia, Pa., for petitioners (Nathaniel Colley, Western Regional Counsel, N.A.A.C.P., Sacramento, Cal., Gary D. Berger, San Francisco, Cal., of counsel).
James H. Morrison, Los Angeles, Cal., in pro. per., intervenor.
Thomas C. Lynch, Atty. Gen., State of California, San Francisco, Cal., for respondent.
SECOND MEMORANDUM AND ORDER
Joshua Hill, Frederick Saterfield, and Robert Page Anderson, the named petitioners, filed for themselves and all other persons similarly situated, a petition for a writ of habeas corpus and an application for injunctive and declaratory relief. The petitioners and the class on behalf of whom they are attempting to sue are described in their petition as persons "who are presently under sentences of death imposed by the State of California or who have been convicted of capital crime and are hence subject to the death penalty under the laws of the State of California."
Petitioners present four basic grounds in support of the relief requested of this Court. First, many of the petitioners and those for whom they sue are claimed to have been denied the right to counsel guaranteed to them by the equal protection and due process clauses of the United States Constitution as well as by the Sixth Amendment during the period when post conviction remedies may be available between termination of their State appeals and their execution by the State. This contention will be referred to hereafter as "right to counsel after direct appeal". Second, the exclusion for cause of prospective jurors who entertain conscientious scruples against the death penalty from service on the jury or juries that determine the guilt, sanity, and penalty issues violates the due process and equal protection clauses as well as the Seventh Amendment right to a fair trial by an unbiased jury made applicable to the States by the Fourteenth Amendment. This contention will be referred to hereafter as "exclusion of jurors with conscientious scruples". Third, in reaching its decision to impose death as the penalty, a California jury or judge proceeds without guides or standards of any kind and therefore California Penal Code §§ 190 and 190.1 violate the due process and equal protection clauses of the United States Constitution. This contention will be referred to hereafter as "standards". Fourth, a sentence of death, pursuant to provisions of California Law, constitutes a cruel and unusual punishment in violation of the Eighth Amendment and the due process clause of the Fourteenth Amendment because (a) the lack of standards to guide juries and judges in imposing a death sentence renders such sentence violative of the prohibition against cruel and unusual punishment, (b) the failure of California to provide an adequate procedure to determine whether the death penalty is justifiable in any particular case renders the imposition of the death penalty in any case a cruel and unusual punishment in violation of the Fourteenth Amendment, and (c) the manner of its application inflicts the loss of life without commensurate justification. This contention will be referred to hereafter as "cruel and unusual punishment without standards or procedure".
ORDER OF JULY 5, 1967.
After a preliminary hearing this Court issued on July 5, 1967, its Memorandum and Order which in brief provided as follows:
(a) The Court found that the allegations of the petition regarding the exhaustion of State remedies were insufficient and conclusionary and ordered the petitioners to file an amended petition setting forth the pertinent information with specificity in accordance with Local Rule 28 of this Court. Further, the Court expressed concern with the serious and novel procedural problems presented by the petition and taking into consideration the insufficient time each side had to brief and argue orally their positions, the Court ordered that further briefs be filed and a subsequent hearing be held. In addition the Court requested respondent to file any motions to dismiss the injunctive and declaratory relief claims to be noticed for hearing at the same time.
(b) In order to have the time to make a deliberate judgment whether this Court could properly entertain this petition the Court ordered the executions of those persons whose automatic direct State appeal had been terminated unsuccessfully and whose execution dates had been set and who were not subject to a stay order from any other judge or justice stayed until further order of Court.
(c) The Court noted the assertion in the verified petition that persons presently under sentence of death and who had exhausted their automatic State appeal were unrepresented by any counsel and that other such persons will become unrepresented by counsel and without their knowledge. In response to these sworn statements, the Court directed counsel for both parties to ascertain through respondent the names of those indigent prisoners who are condemned to death, have exhausted their automatic appeal to the Supreme Court of California and who since then remain without legal representation, and that counsel then furnish the Court with such requested information at the next hearing.
DEVELOPMENTS SUBSEQUENT TO THE ORDER OF JULY 5, 1967.
As a result of the Order of July 5, 1967, the following has occurred:
(a) The petitioners amended their petition to allege there are available to petitioners no effective state remedies in the California courts within the meaning of 28 U.S.C. § 2254 because the Supreme Court of California has recently ruled adversely to all of the contentions raised by petitioners herein in other cases raising the same issues. It is alleged that no subsequent decisions of the California Supreme Court have altered the binding effect of these decisions in the courts of California. Further, it is alleged there have been no subsequent contrary decisions of the Supreme Court of the United States.
(b) Extensive briefs were filed by both sides and respondent filed a motion to dismiss the claims for injunctive and declaratory relief on the grounds later set forth in the portion of this Order dealing with those motions. The hearing on the procedural issues was held on August 10, 1967, at which time counsel for both sides orally argued their respective positions. Petitioners' motion to continue the hearing on respondent's motion to dismiss was granted as to consideration of the substantive questions raised in the respondent's motion to dismiss and denied as to consideration of the threshold procedural and jurisdictional problems which both parties had briefed. This ruling was predicated upon the intention of this Court to resolve fully the procedural problems before proceeding further.
(c) The effect of the stay order was to prevent the execution of seven condemned persons whose dates of death had been set during the interim.
(d) The respondent filed his affidavit July 19, 1967, setting forth the data known to him about the status of legal representation for the condemned men whose automatic direct State appeals had been terminated. On August 9 Leroy D. Clark, one of petitioners' counsel, filed an affidavit in which he recited, among other things, that on July 20, 1967, a letter was sent by him to the seventeen attorneys (other than counsel for petitioners herein) who were listed in respondent's affidavit as attorneys for condemned men whose automatic direct appeal had been unsuccessfully terminated, inviting them to a conference on August 7, 1967, for a discussion of this pending action and its relationship to any action these attorneys were prosecuting on behalf of their clients. Mr. Clark indicated that their expenses in attending the meeting would be paid. Responses were received from eight of the seventeen and two indicated they could not attend, one being out of the country on vacation and the other serving a two week tour with the Army Reserves. Five of the six attorneys who had indicated they would attend the meeting were present. The sixth attorney telephoned to say that the only available air flight was cancelled. Two additional attorneys who had not sent back replies were in attendance. The remainder of the attorneys representing seven of the condemned men whose automatic direct appeals have been unsuccessfully terminated and who are under sentence of death neither replied to Mr. Clark nor appeared at the meeting. At the hearing Mr. Anthony Amsterdam, chief counsel for petitioners represented that three of the persons whose execution dates had been set between July 5 and August 10 had no legal representation since the termination of their automatic appeals and would have been put to death but for the stay.
The procedural issues before the Court for determination are the following:
(1) Should petitioners be permitted to assert a habeas corpus class suit for all presently condemned men similarly situated?
(2) Have petitioners satisfied the requirements of Section 2254(b) of Title 28, United States Code?
(3) Should the motion to dismiss the claims for injunctive and declaratory relief be granted?
We do not say that a class action for a writ of...
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