A federal appeals court considering whether California's death penalty is unconstitutional because of excessive delays focused Monday mainly on procedural issues over whether a killer's novel legal theory had been addressed by the state Supreme Court.
In the case of a Los Angeles rapist and murderer on death row for more than two decades, three judges on the 9th U.S. Circuit Court of Appeals wanted to know if all appeals were exhausted in state court before a federal judge ruled last year that the death penalty was dysfunctional because of unpredictable delays that have seldom led to executions.
Few would argue that California's death penalty provides swift justice.
More prisoners have died of natural causes on death row than have perished in the death chamber. More than 900 killers have been sentenced to death since 1978, but only 13 have been executed.
U.S. District Judge Cormac Carney, an appointee of President George W. Bush, ruled last year that years of unpredictable delays from conviction to execution resulted in an arbitrary and unfair system that violates the Constitution's Eighth Amendment barring cruel and unusual punishment.
Whether the panel made up of Democratic presidential appointees even takes up that issue may depend more on whether lawyers for inmate Ernest DeWayne Jones properly raised it with the California Supreme Court. Convicts have to present all legal claims in state court before appealing in the federal system.
``There wasn't a whole lot of focus on whether the California death penalty is fair,'' Loyola Law School professor Laurie Levenson said after the hearing.
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While Justice Paul Watford said he had ``major problems'' with whether the issue had been raised previously, attorney Michael Laurence argued on behalf of Jones that going back to the state court would create a four-year delay.
Laurence said inmates linger on death row 30 to 40 years and it's random which ones are executed. In referencing a 1972 U.S. Supreme Court opinion that found the death penalty unconstitutional, he said being put to death was ``as unusual as being struck by lightning.''
Prosecutors from the state attorney general's office said delays in carrying out executions were necessary to ensure fairness.
``It's absolutely the case, your honor, that the review process in California is a lengthy one,'' said Deputy Solicitor Michael Mongan. ``Those facts don't establish a system that is arbitrary and produces random results.''
The hearing came as support for the death penalty wanes in parts of the country. The Connecticut Supreme Court recently ruled that it served no legitimate purpose, and Nebraska eliminated it this year.
The California case involves a particularly heinous crime.
Jones, then a paroled rapist, raped and murdered his girlfriend's mother in 1992. Julia Miller was bound, gagged and stabbed 14 times, including a chest wound that penetrated to her spine. Two kitchen knives were sticking out of her neck.
Jones led police on a chase the next morning in Miller's station wagon and then shot himself in the chest with a rifle, though he survived.
His DNA connected him to the rape, and he admitted stabbing Miller.
He's been in prison for 20 years.
Jones, 51, said in his appeal that the state didn't provide a fair and timely review of his case, the delay exceeded that in other states, and death row's conditions constituted torture. He also said the uncertainty of his execution inflicts suffering and, if it ever goes forward, it will serve no legitimate purpose for retribution or deterring other criminals.
No executions have been carried out in California since 2006 after another federal judge ordered an overhaul of the state's procedures for lethal injection.
The Department of Corrections and Rehabilitation is drafting new lethal-injection regulations after Gov. Jerry Brown said the state would switch from a three-drug mixture to a single-drug lethal injection.
No executions can occur until the new rules are adopted and other legal challenges are resolved.
