Ernest DeWayne Jones v. Robert K. Wong

Filing 103

ORDER RE: BRIEFING AND SETTLEMENT DISCUSSIONS by Judge Cormac J. Carney: The Court believes that briefing and oral argument are necessary and appropriate on petitioners potential claim. Accordingly, the Court sets the following briefing and hearing schedule: 1. The parties shall serve and file simultaneous opening briefs which address the issues raised in this Order no later than June 9, 2014.(see document for complete details) (mu)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ERNEST DEWAYNE JONES,

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Petitioner,

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v.

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KEVIN CAPPELL, Warden
of California State
Prison at San Quentin,
Respondent.

CASE NO. CV 09-02158 CJC

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DEATH PENALTY CASE
ORDER RE: BRIEFING AND
SETTLEMENT DISCUSSIONS

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This Court is extremely troubled by the long delays in

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execution of sentence in this and other California death

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penalty cases.

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In claim 27, petitioner contends that his continuous

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confinement since 1995 under a death sentence constitutes

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cruel and unusual punishment in violation of the Eighth

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Amendment under the principles which Justice Stevens

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articulated in his memorandum “respecting the denial of

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certiorari” in Lackey v. Texas, 514 U.S. 1045 (1995)

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(denying petition for writ of certiorari).
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(Pet., at 414-

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18).

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“retribution and deterrence of capital crimes by

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prospective offenders,” an execution “cannot be so totally

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without penological justification that it results in the

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gratuitous infliction of suffering.”

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428 U.S. 153, 183 (1976) (plurality opinion).

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White, concurring in Furman v. Georgia, 408 U.S. 238

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(1972), opined that:

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While the death penalty can be justified by

Gregg v. Georgia,
Justice

At the moment that [a proposed execution] ceases

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realistically to further these purposes [of

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deterrence and the coherent expression of moral

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outrage], the emerging question is whether its

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imposition in such circumstances would violate the

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Eighth Amendment.

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for its imposition would then be the pointless and

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needless extinction of life with only marginal

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contributions to any discernible social or public

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purposes.

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to the State would be patently excessive and cruel

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and unusual punishment violative of the Eighth

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Amendment.

It is my view that it would,

A penalty with such negligible returns

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Furman, 408 U.S. at 312April 10, 2014 (White, J.,

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concurring).

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In addition, the State has a strong interest in

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expeditiously “exercising its sovereign power to enforce

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the criminal law.”

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(1992).

In re Blodgett, 502 U.S. 236, 239

In this California capital case, this interest
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has been utterly stymied for two reasons.

First, in

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California, the state and federal procedures for

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litigating, post-conviction, a capital defendant’s

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Constitutional claims are especially protracted and

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fraught with delay.

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Alarcón and Paula M. Mitchell, Executing the Will of the

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Voters?: a Roadmap to Mend or End the California

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Legislature’s Multi-billion-dollar Death Penalty Debacle,

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44 Loy. L. Rev. 41 (2011); Judge Arthur L. Alarcón,

See generally, Judge Arthur L.

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Remedies for California's Death Row Deadlock, 80 S. Cal.

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L. Rev. 697 (2007).

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Second, all California executions have been

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indefinitely stayed while the courts resolve the

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Constitutionality of California’s lethal injection

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protocol.

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*1-*3 (N.D.Cal., Nov. 21, 2012) (summarizing the

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protracted procedural history of litigation in the

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Northern District of California, in which the plaintiffs

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have challenged California's execution protocol as

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unconstitutional, noting that, “California at this

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juncture lacks a lethal-injection protocol that is valid

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under state law.”).

See, e.g., Morales v. Cate, 2012 WL 5878383, at

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Thus, in addition to facing the uncertainty that, as

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Justice Stevens and Justice Blackmun noted in their

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opinions in Lackey and Furman, all capital defendants face

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while they await execution, in this case, both petitioner
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and the State must labor under the grave uncertainty of

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not knowing whether petitioner’s execution will ever, in

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fact, be carried out.

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The Court believes this state of affairs is

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intolerable, for both petitioner and the State, and that

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petitioner may have a claim that his death sentence is

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arbitrarily inflicted and unusually cruel because of the

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inordinate delay and unpredictability of the federal and

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state appellate process.

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The Court believes that briefing and oral argument are

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necessary and appropriate on petitioner’s potential claim.

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Accordingly, the Court sets the following briefing and

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hearing schedule:

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1.

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briefs which address the issues raised in this Order no

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later than June 9, 2014.

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2.

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responsive briefs which address the issues raised in this

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Order no later than 45 days after the opening briefs have

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been served and filed.

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3.

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briefs which address the issues raised in this Order no

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later than 30 days after the responsive briefs have been

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served and filed.

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4.

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parties have filed their simultaneous replies.

The parties shall serve and file simultaneous opening

The parties shall serve and file simultaneous

The parties shall serve and file simultaneous reply

The Court will set a hearing date shortly after the

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The parties are encouraged to submit, and to address

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in their briefing, the relevant statistics reported in the

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two law review articles referenced above, as well as any

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other reliable studies or public records addressing the

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delay associated with the administration of California's

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death penalty, the number of individuals on death row and

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the likelihood that any of those individuals will ever be

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executed or will instead die of natural causes or suicide.

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In addition, the Court believes that, particularly in

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light of the state of affairs described above, this case

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may benefit from mediation or settlement discussions.

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Therefore, the parties are ORDERED to meet and confer, and

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to submit to the Court within 60 days of the filing date

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of this order a joint statement discussing whether

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mediation or settlement discussions would be appropriate

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in this case, and, if so, what form the mediation or

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discussions should take, including whether it would be

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appropriate for the Court to appoint a mediation Judge.

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IT IS SO ORDERED.

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Dated: April 10, 2014.
___________________________
Cormac J. Carney
UNITED STATES DISTRICT JUDGE

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