On the other hand, the authors gloss over the role of frivolous appeals and bonehead rulings by federal judges. The report states that federal courts granted new trials or penalty hearings in roughly 70 of 100 now-disposed cases. That means federal judges have overturned juries in cases reviewed by state courts in 7 in 10 cases.
Kent Scheidegger of the tough-on-crime Criminal Justice Legal Foundation puts the onus on the 9th U.S. Circuit Court of Appeals, where too many judges are "simply looking for a reason to reverse."
When I asked Hancock whether the 9th Circuit's 70 percent reversal rate bothers her, she answered, "No, not if they're following the law."
And: "Thank God we have a constitution. We're not one of those countries where they cut off hands and execute people without due process."
Don Heller wrote California's 1978 death penalty ballot measure. He now opposes capital punishment. A former prosecutor, he told me that he "evolved" in private practice after dealing more closely with defendants and seeing too many "pretty inept" lawyers representing capital cases. He concluded, "We're just spending way too much money for a system that has flaws in it."
In a letter to Hancock, Scheidegger hit the report for leaving out the savings of the "plea bargain effect," i.e., when murderers plead guilty -- forfeiting the chance they might be found not guilty at trial -- in order to avoid capital punishment. "What would happen to those cases if there were no death penalty?"
And what happens when California's death row lawyers discover they've got time on their hands and a receptive audience in the 9th Circuit? Next argument: Life without parole is too expensive.