Ten years ago, California voters expressed their collective frustration and outrage over the California Supreme Court's failure to administer swift and certain punishment in capital appeals by refusing to retain three justices. At the time of that climactic election -- the first time that appellate justices had ever been denied retention -- there were almost 200 convicts on death row. Today, that number has climbed to 430. We have cause for concern.
The California Supreme Court has done its part to clear a backlog. With new appointments to the court, we witnessed a 180-degree shift in its capital case decisions. From a near 100 percent reversal rate prior to 1985, the court has produced a 95 percent-plus rate of affirmance. The backlog of capital cases that existed at the court in 1985 has all but disappeared. Yet the number of convicts on death row continues to climb.
THE THREAT TO PUBLIC TRUST
Because the subject of capital punishment often triggers deeply held emotions and values, I wish to make clear at the outset that this article is not concerned with whether capital punishment is effective as a deterrent, or whether it can be justified by reference to principles of retribution, or whether it represents good public policy. That argument can continue in other forums.
This article is concerned with the threat to public trust in the judiciary and confidence in the Rule of Law created by any dysfunctional system of punishment, in this case, capital punishment. We must act quickly to improve the administration of capital punishment in California or risk incurring justifiable public outcry.
WHOLE SYSTEM REVIEW
What we need to do is analyze the entire system. Piecemeal changes in parts won't make the system acceptable. If there is one thing we should have learned over the past 25 years, it is that fixing one aspect of the capital punishment system usually reveals other problems without actually improving administration of the whole system.
While the Supreme Court did its part to speed appeals, other parts of the system began showing flaws. For example, the most pressing problem today is the absence of a pool of qualified counsel willing to represent indigent convicts in capital cases. Nearly one-third of the 430 convicts on death row do not have appointed counsel, and the state is about three years behind in counsel appointments.
But even if appointed counsel were suddenly available for all unrepresented convicts, we would still see delays of between one to three years in capital appeals. These significant delays come, believe it or not, from the largely clerical process of certifying the trial record to the Supreme Court.
A few definitions are necessary at this point. The trial record in every case in California is composed of a "clerk's transcript" and a "recorder's transcript." The clerk's transcript consists of all motions, briefs and documents (other than evidentiary exhibits) filed during the trial. The recorder's transcript, which is created by the court reporter, consists of a written record of all oral proceedings in municipal and superior court. In capital trials, all proceedings are required to be on the record.
Some of the trial record certification delay results from the absence of appellate counsel; some of it comes from human nature; and, some of it comes from the failure to employ the most advanced information technologies in preparing the record during trial. Each of these three causes is interrelated.
Although a statute imposes upon trial counsel the duty to assist in preparation of the appellate record, at present, the process usually does not begin in earnest until appellate counsel has been appointed. Since we are three years behind in appointing counsel, and record certification may take up to two or three additional years, it often is five or more years after a sentence has been imposed before a case reaches the Supreme Court.
It is understandable why trial counsel is reluctant to invest a lot of time in reviewing and correcting the trial record. Having lost a capital case, trial counsel will be emotionally exhausted and undoubtedly ready to move on to something else. It is asking more than most of us can deliver to expect trial counsel to spend the next six months after sentence reliving the trial by rereading the recorder's transcript and reviewing the clerk's transcript, especially when appellate counsel will inevitably have to reread all of the same documents to prepare the appeal.
Record certification requires the additional cooperation of the trial judge and other judges who were involved in the case (e.g., the municipal court judge who heard the preliminary hearing) and the court reporters who transcribed the proceedings. The trial judge and court reporters, like trial counsel, are likely to be physically and emotionally drained at the conclusion of the trial, and, like trial counsel, are looking forward to other work. Bringing everyone back together to resolve disputes about the record is difficult and time-consuming.
ELECTRONIC TRIAL RECORDS
Part of the answer to these understandable human reactions lies in the full application of information technology to the process of creating the trial record. Information technology, properly employed at the trial level, can create a record that is ready for transmittal to the Supreme Court almost immediately after the sentence has been entered. Do it right the first time, and it won't need to be corrected.
An important first step has already been taken by the Legislature. A recent addition to the Penal Code now requires that computer-aided transcription (CAT) equipment be used by court reporters in all capital proceedings. With a CAT system, the transcript of proceedings is produced in an English-readable form as the court reporter types, and the computer-based transcript can even be used by the judge and counsel during the trial for read-backs or to review testimony. The CAT system dramatically reduces the amount of time usually needed for a court reporter to translate his or her notes into a readable form. Even with a CAT system, a certain amount of editing is necessary, but the time savings is enormous.
Information technology could be equally helpful in creating the clerk's transcript. The Judicial Council, the rule-making body for the courts, should adopt a rule requiring that all motions and briefs in capital cases be submitted in electronic form or, alternatively, that all such documents be scanned by the court into an electronic form. The clerk's transcript would then be ready for immediate transmittal to the Supreme Court at the conclusion of the trial. Documents would never be lost or misfiled.
Information technology should continue to be employed during the appeal and habeas processes, both in state and federal courts. As documents are filed and oral argument or hearings are held, the electronic record should be supplemented with all additional information. All motions and briefs should be filed in electronic form. Having the entire record stored electronically will assist counsel and the courts in their timely review of the case.
Applying technology to the record creation process in capital cases is not a panacea since there are other problems with the capital appeal system. But technology can help, and our capital system needs all the help it can get. Fixing the capital system is going to take a decade or more of sustained effort. Without modern information technology, that effort is very likely to fail.
J. Clark Kelso is a professor of law and director of the Institute for Legislative Practice at the McGeorge School of Law. He was the reporter for the Judicial Council's Task Force on Court Technology and is presently serving as the reporter for the Blue Ribbon Commission on Jury System Improvement.