Our Proposal: The California Model

The future offers great hope for progress towards effectuating the goal of protecting human

rights in California, particularly in the context of criminal justice. California is evolving towards

a more just and safer community, by employing practices and policies that have successfully

been used in Nordic countries and around the world for decades. These practices and policies

focus on addressing practical problems with methods that strengthen democratic principles and

the rule of law. There are two distinct aspects of the Nordic models which inform a path forward

for advancing human rights in California – a model for incarceration for treatment and

rehabilitation and a model for criminal justice post-conviction review to protect human rights

and ensure equal application of the laws. It is important to note that there is “nothing intrinsically

Norwegian” about these approaches, and they can be adapted to the U.S. In fact, some states

have already made efforts to adopt these models.

The Model for Access-to-Justice Post-Conviction Case Review

“From a rule of law perspective, one of the worst things that can happen is that a person who has

been wrongfully convicted remains convicted as a result of an inaccessible conviction review

process. A situation of this kind may be interpreted as showing that the justice system has not

only failed to judge the case correctly (leaving the responsible party to commit further offenses),

but has also failed to take responsibility for the situation and provide redress to the wrongfully

convicted individual.”

-Sara Hellqvist, Department of Criminology, Stockholm University, Stockholm, Sweden

Norway

      In 2004, Norway revamped its conviction review process for post-appeal access to

review after a high profile wrongful conviction, where a man was wrongfully

convicted for a double homicide and spent 25 years in prison before being exonerated.

The government found that the existing post-conviction review system in the courts

was riddled with conflict of interests and lacked objectivity. Ultimately, the Norwegian

government found that the lack of objectivity of the existing court system was

primarily the impediment to the access-to-justice. Relying upon other concepts for

independent post-conviction commissions in England and Scotland, Norway designed

its own independent commission model.

      The Norwegian Criminal Cases Review Commission is an administrative body, located

outside of the existing court system and independent of the police, criminal courts and

prosecution. The Commission decides whether convicted individuals are entitled to the

opportunity to have their case re-examined by a separate, independent court, based

upon 3 grounds for review:

1) government misconduct or false evidence presented to

the jury

2) Procedure employed conflicts with international law or UN human rights

rules of law;

and 3) New circumstances or new evidence is procured which seems

likely to lead to an acquittal, summary dismissal or reduction in sentence. There is no

time limit for an application to the review unit, nor any limit on the number of

applications. If review is granted, the case is re-examined at a different, independent

court from the original case.

United States

      The United States has a comparable history in recording the relative primary role that

government misconduct holds in the phenomenon of wrongful convictions, however

there has not been a similar review of the post-conviction review process in this

country. North Carolina is the only state that has enacted a post-conviction review

commission.

      The National Registry of Exonerations has posted exoneration records going back to

1989, in a series of compiled reports. The first report consists of reported official

exonerations from 1989 to 2012. After an initial significance, DNA testing has become

an insignificant factor in determining wrongful convictions. In the most recent report

from the National Registry, government misconduct was the leading contributing

factor – especially in homicide cases. DNA was not listed in the contributing factors.

Government misconduct occurred in at least 118 exonerations and 85% of homicide

exonerations.

      In an acknowledgement of the very central role that government misconduct holds in

wrongful convictions, the National Registry now maintains a separate category of

“group exonerations,” resulting from government misconduct. (See

https://exonerations.newkirkcenter.uci.edu/groups/group-exonerations.)

California

      The group exonerations page notes 5 separate group exonerations in California,

starting with the Rampart scandal in 1999. The Rampart scandal is the only group

exoneration in California that registered individual exonerations, and it was only

registered as approximately 1/3 of the actual individuals exonerated. The other four

group exonerations did not register a single individual as exonerated.

      As noted in the group registry, the Rampart division scandal resulted in approximately

171 exonerations, but only 48 are registered with the National Registry. Wide-ranging

misconduct by officers in Los Angeles Police Department's Rampart division led to

approximately 171 exonerations. The vacaturs and dismissals occurred in 1999 and

2000 after a Los Angeles police officer revealed extensive misconduct by officers in a

unit created to fight drugs and crime in one of the city’s toughest neighborhoods. Five

officers were convicted in state and federal courts for their misconduct, and the city of

Los Angeles has paid approximately $125 million to settle claims based on their

actions.

      The four subsequent California group registries include:

1) LAPD misconduct in the

central division, in 1999, which resulted in 17 exonerations;

2) Oakland Police Department “Low Riders” scandal of 2000, resulting in 75 exonerations;

3) Pittsburg Police Department suppression of exonerating evidence violations discovered in 2016, resulting in 15 exonerations;

4) the Orange County Sheriff Department evidence

integrity issues resulting in 53 exonerations.

The foregoing CA group exonerations, representing 160 individuals, were not registered as individual exonerations with theNational Registry.

      The National Registry of Exonerations currently reports that California has 296

exonerations since 1989. If the additional 122 exonerations from the Rampart scandal

and 160 exonerations from the group exonerations were included in the total number of

exonerations for California, the total would be 578. In this context, the group

exonerations based upon government misconduct scandals alone would constitute over

57% of the exonerations in California since 1989.

      In California, there is no system for post-conviction review for incarcerated individuals

that allows for an independent, objective review of claims related to review of

sentencing, government misconduct or claims of racial bias, separate from the county

of their conviction. Further, there is no constitutional right to post-conviction review

outside of the direct appeal process (the direct appeal is a limited review which has

resulted in de minimis exonerations). The basic avenue for post-conviction review for

incarcerated individuals in California is the petition for writ of habeas corpus. A

habeas petition procedure offers the possibility of much more inclusive review of

evidence relating to a case, because it permits a court to consider evidence outside the

record of conviction. However, habeas petitions are constrained by many procedural

bars, many of which cause significant impasses for incarcerated individuals seeking

review. Until very recently, habeas review was largely restricted to new evidence of

actual innocence that was not available at the time of trial. This was largely limited to

DNA evidence. However, this evidentiary restriction has been theoretically expanded

by new laws which have defined “new evidence.”

      The most fundamental problem for most incarcerated individuals seeking post-

conviction review is the struggle to ascertain new evidence while incarcerated –

especially evidence which was suppressed by the government at the time of trial. It

goes to reason that if the government suppressed the evidence in preparation for trial,

the government is unlikely to share this evidence in the post-conviction context. This is

particularly true in the more conservative counties and courthouses of California.

Accordingly, the application of new laws intended to increase post-conviction

discovery access are disparately applied by government offices. As a result, there are

entire counties and courthouses where post-conviction review is near to impossible for

habeas petitions claiming wrongful conviction based upon government misconduct. In

this respect, California provides the perfect foil to the “access to justice” model.

      The situation is best exemplified by the current situation in Orange County informant

scandal, and the ongoing litigation related to the gross government misconduct that

involved the police, the prosecutors and implicates the court. (See

https://voiceofoc.org/2024/05/how-deep-does-oc-district-attorney-todd-spitzer-look-

into-his-own-office/.) As confirmed by the Federal Department of Justice, the police

and prosecution utilized an illegal informant system to secure convictions, regardless

of guilt or evidence. While the prosecution has since conceded 67 cases as part of an

exoneration based upon “mishandling of evidence,” the public defender’s office

believes that there are at least 100 more wrongful convictions related to the informant

scandal which remain uninvestigated, without objective review. The conflict of interest

in the scandal reaches from the police station through the courts, where recently, all of

the judges in the county recently recused themselves from a recent prosecution where

the public defender made significant claims of “outrageous government misconduct,”

including many ongoing Brady violations. This case was ultimately transferred to San

Diego county by the Orange County court using an inapplicable government procedure

(which requires both parties to stipulate to transfer).

      There is no existing procedure for these circumstances, which further highlights the

immediate need for a mechanism to bring cases or transfer cases based upon claims of

government misconduct to alternate, objective and conflict-free venues that provide

access to justice. More importantly, the situation is history repeating itself. It is

precisely the same situation that led to the L.A. Grand Jury Report, which similarly

acknowledged the constitutional crisis without providing a system change or redress.

Indeed, the Grand Jury Report detailed the constitutional crisis that resulted from the

conflation and quiet cover up of illegal practices, government misconduct and

acquiescence of government engaged in the criminal justice process – including the

police, the prosecution, the courts and even the Attorney General’s Office.

      Now, the situation in Orange County presents a unique opportunity to address a

system, structural failure in our criminal justice system which deprives people of basic

constitutional rights and access to justice. California has the opportunity to foster a

criminal justice system that mirrors democratic principles of separation of powers. The

separation of powers requires the operations of government to be conceptually and

institutionally distinguishable, thereby maintaining the integrity of each. In California,

the criminal justice system should reflect the integrity of a separate police body from a

prosecutorial body, from a justice system – that can fairly impart justice “without fear

or favor.” California can and should create “access to justice” for post-conviction

review through a guaranteed independent tribunal for cases with claims of government

misconduct, including claims under the Racial Justice Act. California is already

obligated to review these petitions which are being filed in the courts, thus this would

not create any additional costs or obligations. It would merely address a structural

problem in the criminal justice which has been acknowledged and unaddressed for

decades.

Proposed Commission

      A proposed California Post-Conviction Review Commission model takes its

inspiration from the Nordic model and similar models that have existed for decades in

countries around the world and even in other U.S. states, such as North Carolina. The

Commission itself is not an alternative court or judicial body. It’s an independent

government body that provides initial review and independent investigation of cases

that are formally submitted for the purposes of determining whether a convicted

individual will have the opportunity to have their cases re-examined by a new, separate

court that has no connection to the county of conviction. The primary focus is on

investigation. Similar to the Nordic model, the Commission will be made up of 8

members (5 Permanent Members, 3 Alternates) who are without professional bias or

conflict of interest and without prior law enforcement experience. 5 of the members

will have a law degree, the remaining members will have education and professional

experience in non-legal matters. To this end, the members will be appointed by the

Governor. The Commission will have independent subpoena powers and an

independent referee (specifically not a past member of the prosecution or defense bar)

who can take evidence. The applicant will be provided appointed counsel for the

purposes of presenting the claims and requests for investigation/review. Where the

Commission grants review, the case will be referred to an independent Habeas Unit for

a formal habeas proceeding, in the posture of a case when the Order to Show Cause

has issued. Appointed counsel may continue to represent the applicant as petitioner in

the courts.

      Proposed California Habeas Units will be created inside existing civil courthouses in

California, with three in Northern California and six in Southern California. These

units will serve to process habeas petitions with claims of wrongful conviction based

upon government misconduct as well as post-conviction claims under the Racial

Justice Act. The units will be comprised of three-judge panels (with a preference for

judges with civil experience), with one judge assigned to the evidentiary development

and litigation of the case. The panels will not include past prosecutors from any

California counties. The Governor is responsible for appointing the judges to each

panel. All judges will sign a conflict of interest statement and not be assigned to cases

with connection a judge’s geographic connections and history. All three judges will be

responsible for issuing a written decision following the development of evidence in the

case. The units will have staff separate from the assigned courthouse. All units will

have online filing systems and provide online access to documents and briefing.