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.


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.


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