Wednesday, March 17, 2010

In re Juarez - filed March 16, 2010, BOARD abused its discretion - Another Win for inmates!

In re Juarez - filed March 16, 2010,
Court of Appeal, First Appellate District, Division Two
Cite as A125665

SUMMARY: The BOARD abused its discretion and denied Juarez his due process rights by its reliance on three reasons. 1) "Credibility" because he blacked out at the wheel, 2) Heinous nature of offense, and 3) violent criminal history.

No evidence supported parole board decision to deny petitioner parole where petitioner had for some time fully accepted responsibility for his commitment offense and for knowingly driving while high on PCP; not disputed any of the facts of his crime; expressed remorse for killing victim; been a model prisoner, an ongoing participant in Alcoholics Anonymous and a past participant in Narcotics Anonymous; acknowledged that he was an alcoholic and a drug addict; pledged to continue his participation in AA after his release with the help of his family and an arranged sponsor; became a licensed optician and successfully taught other prisoners seeking to become licensed themselves; had a supportive family, realistic parole plans, and multiple job offers; and had undergone three recent psychological evaluations which concluded that he posed a low risk for violence if released.

Given petitioner’s acknowledgment of responsibility for his commitment offense and the substance abuse that caused it, his lack of memory of the incident was not probative of current dangerousness and board abused its discretion in relying on questions about petitioner’s credibility in denying parole. No evidence supported board’s conclusion that petitioner’s commitment offense was carried out in "an especially heinous, cruel and callous manner" nor was there a rational nexus between the nature of his offense and any current dangerousness where incident took place 27 years earlier when petitioner was a young man with a substance abuse problem who unintentionally killed a man in a traffic collision he caused while driving under the influence of narcotics and speeding away from police. Petitioner’s prior criminal history did not support the conclusion that he was currently dangerous where his prior offenses mostly involved reckless behavior while under the influence of an impairing substance and belligerent behavior when confronted by police and did not demonstrate an escalating pattern of criminal behavior or a significant history of violent crime.

DISPOSITION: The petition for writ of habeas corpus is granted. The Board is directed to hold a hearing within 30 days of the finality of this decision, find Juarez suitable for parole, and set sentence appropriate to this determination, unless new evidence of his conduct and/or change in mental state subsequent to the 2008 parole hearing is introduced and is sufficient to support a finding that he currently poses an unreasonable risk of danger to society if released on parole.

Full text

Tuesday, March 16, 2010

In re Moses - March 16, 2010, Governor's Parole Date reversal found unacceptable

In re Moses - filed March 16, 2010,
Court of Appeal - First Appellate District, Division Two

Cite as A124814

SUMMARY: An inmate served 29 years of a 17-years-to-life prison term for second degree murder and had an exemplary prison record, and Governor’s asserted reasons for denying parole:

1) that the murder was "especially atrocious,"
2) that inmate had maintained claim of self-defense, and
3) that he "had a significant record of criminal violence"

The Governor's characterization are not supported by the evidence in the record, the inmate was entitled to release on parole.

DISPOSITION: The petition for writ of habeas corpus is granted. The Governor is hereby ordered to vacate his decision of June 23, 2008, which reversed the Board‘s July 2007 grant of parole. The Board‘s July 2007 grant of parole is reinstated. In the interests of justice, this opinion is made final as to this court seven days from the date of filing.

Full text

Wednesday, March 3, 2010

Marsy's Law (Prop. 9) - where are we now?

There has been several cases contesting Marsy's Law (Prop. 9). One of the trail blazer case was Gilman et al. V. Schwarzenegger et al. it raised several issues.

Unfortunately, for most lifers, it’s still a wait and see for any Ex Post Facto arguments under Prop 9.

Current Status:
- The District Judge dismissed the Lifer's Due Process claim against Proposition 9.

A preliminary injunction (PI) was granted to the specifically named plaintiffs. The State appealed. An argument in the circuit Court is set for April 13, 2010 to argue who else the preliminary injunction will apply to vis-a-vis inmates. The Order certifying the matter as a class action is pending on the state’s appeal. There is currently no stay on the Preliminary Injunction. The is no briefing scheduled yet. Let's keep an eye on this one!

There is ongoing discovery and of course the original action is on going based on the Civil Rights Act of 1871 which can be found in Title 42, section 1983, hence the well known name of the"1983" civil lawsuit.

We are all hoping for a win in the appeal of the class certification. This would allow to move for an expansion of the preliminary injunction to all class members !

(See our prior 2009 "Proposition 9" posting in this Blog)
Federal Defender (Eastern District) in Gilman et al. V. Schwarzenegger et al. (CIV-S-05-830 LKK GHH)

Eastern District with the UC Davis Law School of Civil Rights Clinic (Section 1983)
Lead Federal Public Defender: Monica Knox email:

===== Other interesting cases on Ex Post Facto issues ============

In Thomas v. Yates (E.D. Cal. No. 05-1198) The District Judge has scheduled an evidentiary hearing to determine whether the Governor's use of his reversal power under the 1988 initiative is Ex Post Facto when applied to Lifers whose offenses occurred before the date of enactment.

In Biggs v. Schwarzenegger (E.D. Cal. No. 07-470; 2009 WL 4048109) also in a challenge to the Governor's Parole power of Reversal, the Magistrate has granted the Lifer's motion for additional Discovery.