Petition for Writ of Certiorari — Sirhan B. Sirhan, Petitioner v. California
Supreme Court briefDec 18, 2024
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No. ________________
________________________________________________________________________________
THE SUPREME COURT OF THE UNITED STATES
SIRHAN B. SIRHAN,
PETITIONER IN FORMA PAUPERIS,
V.
STATE OF CALIFORNIA,
RESPONDENT.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF CALIFORNIA
Angela Berry, Esq.
Bar No. 323577
Attorney of Record
75-5660 Kopiko Str., Suite C-7, #399
Kailua-Kona, HI 96740
Ph.: 866 285-1529
Email: angela@guardingyourrights.com
Denise F. Bohdan, Esq.
Bar No. 323579
P.O. Box 383
Cardiff, CA 92007
Ph.: 619-851-5227
Email: denise@bohdanlaw.com
Attorneys for Petitioner
Sirhan B. Sirhan
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QUESTIONS PRESENTED
California Constitution Article V, Section 8(b), grants a California Governor the
authority to reverse parole decisions of the Board of Parole Commissioners. It is a de
novo review, with the limitation that the Governor must consider the same statutory
factors and record of the Board below.
1. DOES CALIFORNIA CONSTITUTION ARTICLE V, SECTION 8(b)
VIOLATE THE U.S. CONSTITUTION’S DUE PROCESS CLAUSE
BECAUSE OF THE INTOLERABLE RISK THAT PUBLICLY ELECTED
GOVERNORS LACK NECESSARY NEUTRALITY?
2. WAS PETITIONER’S FUNDAMENTAL RIGHT TO A FAIR AND
NEUTRAL ARBITER VIOLATED WHEN THE GOVERNOR WHO
REVIEWED THE PAROLE BOARD DECISION HAD A WELLPUBLISHED AFFINITY AND PERSONAL CONNECTION TO THE
VICTIM?
3. DOES CALIFORNIA CONSTITUTION ARTICLE V, SECTION 8(b)
IMPROPERLY IMPACT YOUTH OFFENDERS BECAUSE OF THEIR
UNIQUE CONSTITUTIONAL PENOLOGICAL PROTECTIONS AND
THEREBY VIOLATE THE EIGHTH AMENDMENT RIGHT AGAINST
CRUEL AND UNUSUAL PUNISHMENT?
4. DOES CALIFORNIA CONSTITUTION ARTICLE V, SECTION 8(b)
VIOLATE THE U.S. CONSTITUTION’S DUE PROCESS CLAUSE
BECAUSE DUE PROCESS SAFEGUARDS, SUCH AS THE RIGHT TO BE
HEARD, RIGHT TO REVIEW THE RECORD, AND TO HAVE COUNSEL
ATTEND THE HEARING, ARE NOT AVAILABLE DURING THE
GOVERNOR’S REVIEW PROCESS, EVEN WHEN NEW EVIDENCE IS
IMPROPERLY CONSIDERED BY THE GOVERNOR?
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PARTIES TO THE PROCEEDINGS AND RELATED CASES
In re Sirhan B. Sirhan, Petitioner; CA Attorney General, Los Angeles County
District Attorney, Respondents. Superior Ct. No. BH014184 / Underlying Case
No. A233421, Superior Court of California, County of Los Angeles.
Memorandum of Decision on Petition for Writ of Habeas Corpus entered
October 2, 2023
In re Sirhan B. Sirhan, Petition for Writ of Habeas Corpus, Appeal No. B338429
California Court of Appeal, Second Appellate District, Div. 5. Decision denying
Petition entered July 22, 2024. This filing invoked the Appellate Court’s
original jurisdiction. See Robinson v. Lewis, 9 Cal. 5th 883, 895; 469 P.3d 414,
419 (2020).
In re Sirhan B. Sirhan on Habeas Corpus, Supreme Court of California, No.
S286234. Decision denying Petition entered September 25, 2024.
28 U.S.C. Section 2403(b) may apply. (Pursuant to Rule 29(c) of the Rules of
the Supreme Court of the United States, the Attorney General has been
served.)
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TABLE OF CONTENTS
QUESTIONS PRESENTED ………………………………………………………………..…..i
PARTIES TO THE PROCEEDINGS AND RELATED CASES …………………...…..…ii
TABLE OF CONTENTS ……………………………………………………………….……....iii
TABLE OF AUTHORITIES ……………………………………………………………………ix
PETITION FOR CERTIORARI ………………………………………………………………..1
OPINIONS BELOW ……………………………………………………………………………..1
BASIS FOR JURISDICTION …………………………………………………………….…….2
CONSTITUTIONAL, STATUTORY AND CASE LAW INVOLVED …………………….3
STATEMENT OF THE CASE………………………………………………………..…….…..5
A. Procedural ………………………………………………………………….….5
B. Facts……………………………………………………………………..……...5
REASONS FOR GRANTING PETITION………………………………….………………….8
INTRODUCTION………………………………….…………….………………………..8
I. CAL. CONST., ART. V SEC. 8, SUBD. (b) IS AN OUTLIER AMONG THE
STATES, IS STRUCTURALLY FLAWED AS IT LACKS NEUTRALITY,
AND THE BIAS CANNOT BE CURED; IT IS THEREFORE
UNCONSTITUTIONAL ……………………………………………….…………10
A. History of Passage of Art. 1, Sec. 8(b)……………………..……………10
B. A Neutral Arbiter is a Fundamental Right, and a Law that
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Infringes Upon that Right is Structurally Defective under
Constitutional Standards…………………………………………...……..13
1. Parolee Applicants have a Liberty Interest in Parole and The
Fundamental Right to an Impartial Decision-Making Body…….13
2. Most Matters of Bias are Left to the States Unless the Bias Rises
to a Constitutional Level, and Here, State Laws Fail to Address
the Bias. ………………………………………………………….….….14
3. Federal Due Process Claims Of Bias Cannot Be Easily Defined,
Involve Determination of Whether an Arbiter is “Likely To Be
Neutral” or Whether There is “Potential For Bias,” and Actual Bias
Need Not Be Found………………………………………………..…..17
4. Art. V., Sec. 8(b) Impermissibly Creates a Lack of Neutrality in
That A Governor is Answerable To His Constituents, Political
Factors and His/Her Own Career Goals, Thereby Rendering the
Law Structurally Flawed …………………………………….….…..21
5. Art. V, Sec. 8(b) Impermissibly Creates a Lack of Neutrality in
That a Governor is The Head of All Law Enforcement in the
State………………………………………………………………….….23
6. A Structural Defect of Lack of Neutrality Is a Constitutional
Violation and Therefore a Harmless-Error Analysis Does Not
Apply………………………………………………………………..…..25
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C. Youth Offenders Are Particularly Impacted by Art. V, Sec. 8(b),
Because of Their Unique Constitutional Penological Protections in
Violation of the 8th Amendment to the U.S. Constitution….……..27
II.
THE RISK OF ACTUAL BIAS CAME TO FRUITION IN PETITIONER’S
CASE DUE TO THE GOVERNOR’S STATED AFFINITY AND
PERSONAL CONNECTION WITH THE VICTIM AND HIS FAILURE TO
RECUSE HIMSELF……………………………………………………..……….29
III.
PAROLE APPLICANTS ARE DENIED DUE PROCESS AT THE
GUBERNATORIAL REVIEW, THUS RENDERING MOOT THE
PREVIOUS PROTECTIONS PROVIDED DURING THE PAROLE
PROCESS ……………………………………………………………………..…31
A. Penal Code section 3041 et. seq. Provides Multiple Procedural
Safeguards That Do Not Exist at the Governor’s Review Level….….32
B. A Reversal of a Parole Decision by the Governor in California is Not
Dissimilar to a Revocation of Parole in Other Jurisdictions Yet Lacks
Procedural Safeguards……………………………………………………...35
C. Fundamental Rights Guaranteed by the U.S. Constitutional are
Superior to State Law When a State Law Violates Those Federal
Rights. …………………………………………………………………….….37
CONCLUSION ……………………………………………………………………………...38
CERTIFICATE OF COMPLIANCE……………………………………………………....39
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APPENDICES ……………………………………………………………Bates No.
App. A
Memorandum of Decision, In re Sirhan B. Sirhan, Pet. on
Habeas Corpus, BH014184, October 2, 2023….BN0005
App. B
Decision, In re Sirhan B. Sirhan, Court of Appeal of the
State of California, B338429, July 22, 2024……BN0038
App. C
Decision, In re Sirhan B. Sirhan, California Supreme
Court, S28634, September 25, 2024……………..BN0041
App. D
Petition for Writ of Habeas Corpus, In re Sirhan B.
Sirhan, Pet. on Habeas Corpus, BH014184, filed on
September 29, 2022 ………………………………BN0043
App. E
Chronology of Governor’s Statements……………..BN0098
1. Tad Friend, Gavin Newsom, the Next Head of the
California Resistance, October 29, 2018, The New
Yorker Magazine, October 29, 2018 …………BN0104
2. Transcript of KTUV, Governor’s Speech After Recall,
September 14, 2021 URL:
https://www.youtube.com/watch?v=Ia-ZOTZLz3A
……………………………………………………… BN0131
3. White, Jeremy, “Newsom: RFK Admiration Shows
‘where I might be Leaning’ on Sirhan Parole”, Politico,
September 15, 2021 On-line.
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URL:https://www.politico.com/states/california/story/20
21/09/15/newsom-rfk-admiration-shows……………………………………………………….BN0133
4. Transcript of October 21, 2021, NBC News, Meet the
Press. URL: https://www.nbcnews.com/meet-thepress/video/gov-newsom-ethel-kennedy-s-opinion-hasweight-on-sirhan-decision-release-124271174002
............………………………………………………..BN0137
5. Thompson, D., “California Governor Mulls RFK
assassin Sirhan Sirhan Parole”, AP On-line, December
28, 2021. URL:https://apnews.com/article/sirhansirhan-middle-east-california-gavin-newsom08ab1b7dc92f58c78c2645c436311ba4
…………………………………………….………..BN0141
6. Newsom, G., Los Angeles Times, Op. Ed., January
13, 2022. URL:
https://www.latimes.com/opinion/story/2022-0113/sirhan-gavin-newsom-parole-decision:
……………………………………………………….BN0146
App. F
Letter to Governor Newsom from BGR Law Firm, dated
Dec. 9, 2021……………………………………………BN0151
App. G
California Ballot Pamphlet, Nov. 1988, Secretary of State
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of CA, Prop. 89, pp. 44-47. ………………………..BN9179
App. H
Declaration of Angela Berry filed August 4, 2023, in Writ
of Habeas Corpus proceedings, Los Angeles County
Superior Court …………………………………….BN0187
App. I
Wiggins, O and Tan, T: “Maryland revokes Governor’s
authority to overturn parole decisions involving people
serving life terms”, Washington Post, December 7, 2021
URL: https://www.washingtonpost.com/dc-mdva/2021/12/07/maryland-parole-governor-criminal-justiceprison/ …………………………………………….BN0193
App. J
Hurst, J., “Prop. 89, Plan to Give Governor Parole Veto
Power”, LA Times, October 28, 1988,
URL: https://www.latimes.com/archives/la-xpm-1988-1028-mn-340-story.html ........................................BN0197
App. K
Life in Limbo: An Examination of Parole Release for
Prisoners Serving Life Sentences with the Possibility of
Parole in California (2011) Stanford Criminal Justice
Ctr., 13 (Appendix 17) at PA_0285 pp. 11-15) …..BN0205
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TABLE OF AUTHORITIES
Constitutional Provisions, Rules and State Statutes
U.S. Constitution Art. VI, Sec. 10 ..………………………………………….………………3
U.S. Constitution, Amend. 8………………………………………………………………8, 26
U.S. Const. Amendment XIV.....................................................................................3, 38
28 U.S.C. Sec. 1257……………………………………………………………………………..1
Rules of U.S. Supreme Court, Rule 10……………………………………………………….1
California Constitution, Art. V, Sec. 8(b)……………………………………3,8,9,10,14,15,16
17, 20, 22, 24,25,29,32,33,34,36,37,38
Cal. Code of Civil Procedure 170.1 ……………………………………………………...15,17
Cal. Code of Regs., Title 15, Sec. 3321.................................................................. ..........6
Cal. Code of Reg., Title 15, Sec. 2247 …..…………………………………………………..32
Cal. Pen. Code section 3040 .…………………………….…………………………………..32
Cal. Pen. Code section 3041…………………………………………………………. 11,31,32
Cal. Pen. Code section 3041.2……………………………..……………………………3,16,31
Cal. Penal Code section 3041.5(a)………………………….……………………..32,33,35,37
Cal. Pen. Code section 3041.7……………………………………………………………33,36
Cal. Pen. Code section 3044(b) ................................................................................. .…11
Cal. Pen. Code section 3051 ................................................................ …………...24,27,28
Cal. Pen. Code section 4801(c). ………………………………………………………..24,27,28
Fla. Stat. Sec. 922.07 …………………………………………………………………………23
OK Const. Art. VI, Section 10………………………………………………………………..10
Cases
Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813 (1986) ….……………………….14,15,17,18
Arizona v. Fulminante, 499 U.S. 279 (1991)…………..……………….………….25,29,31
California v. Greenwood, 486 U.S. 35 (1988)…..………………………………………….38
Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) ………………….15,16,17,18,19
Chisom v. Roemer, 501 U.S. 380 (1991) …….……...…………………………………..….21
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Ford v. Wainwright, 477 U.S. 399 (1986) ………………………..……………………….23
Gibson v. Berryhill, 411 U.S. 564 (1973)……………………………………….…….........14
Gideon v. Wainright (1963) 372 U.S. 335 (1963)…… …….………………………….14,25
Gilman v. Brown,110 F. Supp. 3rd 989 (E.D. Cal. 2014) ……………………………..….13
Gilman v. Brown, 814 F.3d 1007 (2016)……………………………………………………13
Graham v. Florida, 56 U.S. 48 (2010) ...………………………………………………..27,28
In re Arafiles, 6 Cal. App. 4th 1467 (1992)……………………………………..……………11
In re Copley, 196 Cal. App. 4th 427 (2011)…….……………………………………………11
In re Fain,139 Cal. App. 3d 295 (1983) …………………………………………………….12
In re Lawrence, 44 Cal.4th 1181 (2008) ............................. .............................10,11,13,33
In re McDonald, 189 Cal.App.4th 1008 (2010)………………………….8,10,31,33, 34, 35
In re Murchison, 349 U.S. 133 (1955)…..…………………………………..…….……18, 19
In re Powell, 45 Cal.3d 894 (1988) ..….………………………………………………….….11
In re Rosenkrantz, 29 Cal. 4th 616 (2002)………………....…….............4,8,11,13,22,31,33,34
In re Shaputis, 53 Cal.4th 192 (2011)……. ..……………………………….…….………..26
In re Smith, 109 Cal.App.4th 489 (2003)…………….……………………..……………….11
In re Twinn, 190 Cal.App.4th 447 (2010) …….…………………………………………….34
In re Van Houten, 92 Cal.App.5th 1 (2023)….. …………………………….………………10
Lisenba v. California, 314 U. S. 219, 236 (1941)………………………….………………14
Miller v. Alabama, 567 U.S. U.S 460 (2010) ………………………..….……………9,27,28
Montgomery v. Louisiana, 577 U.S. 190 (2016)……. ……………………….…….…......28
Morrissey v. Brewer, 408 U.S. 471 (1972)……. …………………. 8,14,26,27,32,35,36,37
McCutcheon v. FEC, 572 U.S. 185 (2014) …………………………………………...…….20
North American Title Co., Inc. v. Superior Court, 17 Cal. 5th 155 (2024)…….……….16
Oliver v. United States, 466 U.S. 170 (1984)……. …………………………….………....38
Patterson v. New York, 432 U.S. 197 (1977)……………………………………………….16
People v. Contreras, 4 Cal. 5th 349 (2018) .……………………………………………..24,29
People v. Franklin, 63 Cal. 4th 261 (2016) ……………………………………….…….24,27
People v. Powell, 24 Cal. LEXIS 3149 (2024) ………………………………………..……28
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People v. Ramirez, 25 Cal.3d 260 (1979)…………. ………………………………………..13
Roper v. Simmons, 543 U.S. 551 (2005) ….……………………………………………..…27
Rose v. Clark, 478 U.S. 570 (1986) …………..……………………………………………..26
Swarthout v. Cooke, 562 U.S. 216, 219 (2011) .………………….….…………..4,13,14,26
Taylor v. Hayes, 418 U.S. 488 (1974) ……………………………….…………….….........19
Tumey v. Ohio, 273 U.S. 510 (1927)…….. ………………………………………….20,25,29
Ungar v. Sarafite, 376 U.S. 575 (1964)……...……………………………………………..19
Ward v. Village of Monroeville, 409 U.S. 57 (1972). …..…………………………………18
Williams v. Pennsylvania, 579 U.S. 1 (2016)….. ….……………………….….13,18,21,26
Williams-Yulee v. Fla. Bar 575 U.S. 433 (2015)…… ………………………………..21,26
Withrow v. Larkin, 421 U.S. 35 (1975) ..…………………………………………14,19,26,31
Other Sources and Authority
Ballot Pamph., Gen. Elec., at p. 46 (Nov. 8, 1988), Prop. 89…………………..…….12,22
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IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully requests that a writ of certiorari issue reviewing the
decision of the Supreme Court of California.
OPINIONS BELOW
None of the previous rulings or decisions of the courts below resulted in
published opinions. Opinions and / or Decisions below:
Unpublished: In re Sirhan B. Sirhan, Petitioner; CA Attorney General, Los
Angeles County District Attorney, Respondents. Superior Ct. No. BH014184,
Appendix A.
Unpublished: In re Sirhan B. Sirhan, Petition for Writ of Habeas Corpus,
Appeal No. B338429 California Court of Appeal, Second Appellate District, Div.
5, Appendix B.
Unpublished: In re Sirhan B. Sirhan on Habeas Corpus, Supreme Court of
California, No. S286234. Appendix C.
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BASIS OF JURISDICTION
The date on which the Supreme Court of California issued its decision was
September 25, 2024.
Jurisdiction of this Court is established under the following:
28 U.S. Code, Section 1257:
Final judgments or decrees rendered by the highest court of a State in which a
decision could be had, may be reviewed by the Supreme Court by writ of certiorari
where the validity of a treaty or statute of the United States is drawn in question or
where the validity of a statute of any State is drawn in question on the ground of its
being repugnant to the Constitution, treaties, or laws of the United States, or where
any title, right, privilege, or immunity is specially set up or claimed under the
Constitution or the treaties or statutes of, or any commission held or authority
exercised under, the United States.
Rules of the Supreme Court of the United States, Rule 10(c):
[A] state court or a United States court of appeals has decided an important question
of federal law that has not been, but should be, settled by this Court, or has decided an
important federal question in a way that conflicts with relevant decisions of this
Court.
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CONSTITUTIONAL, STATUTORY AND CASE LAW INVOLVED
U.S. Constitution, Sixth Amendment
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defense.”
U.S. Constitution, Fourteenth Amendment
“No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
California Constitution, Article V, Section 8
“(b) No decision of the parole authority of this state with respect to the granting,
denial, revocation, or suspension of parole of a person sentenced to an indeterminate
term upon conviction of murder shall become effective for a period of 30 days, during
which the Governor may review the decision subject to procedures provided by statute.
The Governor may only affirm, modify, or reverse the decision of the parole authority
on the basis of the same factors which the parole authority is required to consider. The
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Governor shall report to the Legislature each parole decision affirmed, modified, or
reversed, stating the pertinent facts and reasons for the action.”
California Penal Code Section 3041.2
“(a) During the 30 days following the granting, denial, revocation, or suspension
by the board of the parole of an inmate sentenced to an indeterminate prison term
based upon a conviction of murder, the Governor, when reviewing the board's decision
pursuant to subdivision (b) of Section 8 of Article V of the Constitution, shall review
materials provided by the board.
(b) If the Governor decides to reverse or modify a parole decision of the board pursuant
to subdivision (b) of Section 8 of Article V of the Constitution, he or she shall send a
written statement to the inmate specifying the reasons for his or her decision.”
Swarthout v. Cooke, 562 U.S. 216, 219 (2011): A State’s procedure is subject to due
process review by the U.S. Supreme Court if the State has created a liberty interest in
the subject matter.
In re Rosenkrantz, 29 Cal. 4th 616, 661 (2002): California has created a due process
liberty interest in parole for California prisoners.
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STATEMENT OF THE CASE
A. Procedural
Mr. Sirhan is currently serving a life sentence for first degree murder. Mr.
Sirhan has been eligible for parole since May 30, 1975. Petitioner was found suitable
for release on August 27, 2021. On January 13, 2022, Governor Newsom reversed the
decision of the Board of Parole Commissioners under the authority of California
Const. Art. V, Sec. 8(b) (see also Penal Code 3041.2). Petitioner challenged the
Governor’s reversal in the California Superior Court through habeas corpus
proceeding. (In re Sirhan B. Sirhan, Case No. BH014184, Appendix D; Bates
Number, hereinafter “BN”, BN0043). After the superior court issued an order to
show cause, the Los Angeles County District Attorney’s Office and the California
Attorney General’s Office filed Returns. On October 2, 2023, the Los Angeles County
Superior Court denied Petitioner’s Petition for Writ of Habeas Corpus. (Appendix A;
BN0005). Petitioner filed a writ of habeas corpus in the appellate court. Therein, he
challenged the constitutionality of the law. On July 22, 2024, the Court of Appeals
denied the petition. (Appendix B; BN0038) Petitioner timely sought review of the
California Supreme Court, which denied his request for review after briefing on
September 25, 2024. (Appendix C; BN0041).
B. Facts
Prior to Petitioner’s grant of parole on August 27, 2021, he was denied parole
many times, since the mid-1980’s, despite receiving consistent standardized risk
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assessments placing him in the lowest category for risk. Subsequent to the Board’s
grant of parole, the Governor made statements indicating a preference towards
reversing his Board’s decision. 1 (Appendix E; BN0098.) Moreover, Governor Newsom
received a 361-page ex-parte packet of materials from the victim’s family, including an
inflammatory hearsay statement from a former prison guard and an opinion letter
from a former District Attorney. 2 (Appendix F; BN0151.) The hearsay statement from
the ex-guard alleged that he caused to be created a confidential “chrono” 3 alleging
Petitioner made a highly inflammatory statement that was tantamount to a tacit
admission. This inflammatory hearsay was improperly before Governor Newsom
because none of the large packet of ex-parte items were before the Board below, were
never served on Petitioner, and were items which Art. V, Sec. 8(b) does not permit the
1
In an October 24, 2021 interview on NBC’s Meet the Press, the Governor acknowledged that
Petitioner’s case had not yet been brought to him. Yet, on September 14, 2021, he stated he was
“resolved in the spirit of [his] political hero Robert Kennedy” (9/14/2021, KTUV,
www.youtube.com/watch?v=Ia-ZOTZLz3A). In the Meet the Press Interview he reiterates “Robert
Kennedy is my political hero. You look at my house, it’s like a shrine to the Kennedy family and Bobby
in particular”. (www.nbcnews.com/meet-the-press/video/gov-newsom 10/21/2021). Appendix E 4;
BN0137).
2
It is unclear exactly how many ex-parte communications were served on the Governor, as the cover
letter for the packet references other anticipated to be sent to him.
3 A CDCR incident report, Ca Code of Regs, Title 15, §3321.
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parolee to rebut. 4 After receipt of the ex-parte packet, Governor Newsom reversed his
Board’s decision on January 13, 2022.
Petitioner seeks certiorari on the issue of the constitutionality of California
Constitution Article V, Section 8(b) because it does not allow parolees an opportunity
to rebut improperly received information, which in his case was received, and because
it allows a biased arbiter to determine liberty interests. In this case, the bias was clear
and distinct.
4 At a subsequent Board Hearing, where Petitioner does enjoy the right to rebut hearsay allegations,
the ex-guard was proven to have lied about the existence of “chrono” at all.
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REASONS FOR GRANTING THE PETITION
INTRODUCTION
In briefest form, pursuant to Supreme Ct. Rule 10(c), certiorari should be granted
because the Supreme Court of California has decided an important question of Federal
Law that has not been, but should be, settled by this Court, in that:
1. Art. V, Sec. 8(b) subjects every inmate granted parole to review by an arbiter
subject to political influence, which flies in the face of fundamental concepts of
due process before a neutral arbiter.
2. Art. V, Sec. 8(b) fails to provide fundamental due process to every inmate when,
as occurred here, they are denied notice of the record and right to be heard,
when the arbiter violates the statute implementing the law, by receiving and
considering outside prejudicial evidence and information. It is unrealistic to
presume that any given Governor will not receive outside information provided
by constituents that was not part of the record reviewed by the Board, which is
contrary to California case law interpreting the statute. In re Rosenkrantz 29
Cal. 4th 616, 638 (2002) and In re Mc Donald 189 Cal. App. 4th 1008, 1024
(2010). See also Morrissey v. Brewer 408 U.S. 471, (1972) holding a due process
right to notice of the record and to rebut in the parole context.
3. Art. V, Sec. 8(b) subjects juvenile and youthful offenders to a lack of reasonable
opportunity for release in violation of the Eighth Amendment to the U.S.
Constitution, in that it undermines the laws mandating specific consideration of
the “distinctive attributes of youth” designed to recognize the hallmark features
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of youth and the “possibility of rehabilitation” (Miller v. Alabama, 567 U.S. 460,
472, 477 (2010)). By allowing a political figure to reverse a finding of suitability
by the Parole Board, a young offender may never have a real chance of release
despite rehabilitation and appropriate suitability for release. For those inmates
committed before age 18, and never sentenced to life without the possibility of
parole (“LWOP”), Art. V, Sec. 8(b) if used to reverse parole grants, is essentially
an LWOP sentence in violation of mandates of Miller v. Alabama, id.
4. Art. V, Sec. 8(b) does not articulate any mechanism for recusal by a Governor
who actually harbors bias towards the particular inmate being reviewed. The
lack of appropriate recusal procedure for the arbiter creates fertile ground for a
Governor to proceed with review despite having actual bias. Here, Governor
Newsom’s long-standing, demonstrable affinity for the victim, and personal
family association with the victim, would have required any other arbiter to
step aside. Certiorari should be granted to determine whether a violation of due
process occurs when a Governor publicly favoring the particular victim in a case
sits in judgment of the inmate’s parole review, pursuant Art. V, Sec. 8(b), and
there is no recusal mechanism applicable under the law to address such bias.
5. The constitutionality of California Constitution, Art. V, Sec. 8(b) has not been
decided by this Court.
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I.
CAL. CONST., ART. V SEC. 8, SUBD. (b) IS AN OUTLIER
AMONG THE STATES, IS STRUCTURALLY FLAWED
AS IT LACKS NEUTRALITY, AND THE BIAS CANNOT BE CURED;
IT IS THEREFORE UNCONSTITUTIONAL
A. History of Passage of Art. V, Sec 8(b)
In 1988, California voters approved Proposition 89, adding Section 8(b) to
Article V, granting the Governor the power to review parole decisions specifically for
those serving indeterminate sentences for murder of up to life in prison with the
possibility of parole. California is one of only two states 5 in the country where the
governor has the right to review and reverse grants of parole to inmates in the class.
As a balance to unfettered decision-making by the Governor, Art. V, section 8(b)
requires that the Governor’s decision be based upon the same factors the California
Department of Corrections and Rehabilitation’s Board of Parole Hearings is required
to consider. Pen. Code, sec. 3041.2(b), In re Lawrence 44 Cal. 4th 1181, 1204 (2008) ; In
re Van Houten, 92 Cal.App.5th 1, 32 (2023). Further, the Governor may not review
materials that were not before the Board. (In re McDonald, 189 Cal.App.4th 1008,
1024 (2010): “Unlike the Board, which has the obligation and ability to take evidence,
5
Oklahoma is the only other state with a similar law, See OK Constitution Art. VI, Sec. 10. In 2021,
Maryland passed SB 202 returning the ultimate authority on parole decisions to parole officials, and
divesting the governor of such power due to the perception of bias. (Appendix I; BN0193)
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consistent with due process protections, the Governor cannot create an
evidentiary record”; See also In re Copley, 196 Cal. App. 4th 427, 433 (2011):
“Governor's constitutional authority is limited to a review of the materials presented by
the Board.” See also In re Arafiles, 6 Cal.App.4th 1467, 1477, 1478 (1992) In re
Rosenkrantz, 29 Cal.4th 616, 660-661 (2002); In re Smith 109 Cal.App.4 489, 507
(2003) .
Finally, there is judicial review, albeit limited review, of a Governor’s decision
to ensure that certain factors be considered and that parole decisions are supported by
at least “some evidence of current dangerousness” and are not arbitrary or capricious.
In re Rosenkrantz, supra, 29 Cal.4th at 625-626; In re Powell, 45 Cal.3d 894, 904
(1988). Thus, the law provides that a Governor shall have, in one person, the power
otherwise vested in many experienced Board members.
Generally, Parole Boards consist of former prosecutors, sheriffs, police officers
and probation officers. Together they comprise a body of hundreds of years of
experience in public safety and law enforcement. Their primary function is to protect
the public. (Cal. Pen. Code section 3044(b).) A decision in favor of parole is based upon
a decision of the panel and review of the entire Board. (Cal. Pen. Code section
3041(b)(2)). The competency of the Board cannot be doubted based on their collective
experience. Parole is a right unless there is evidence of current dangerousness. (In re
Lawrence, supra, 44 Cal.4th at 1210.) The challenged constitutional provision
essentially added another “parole board”, in the Governor. He wields the same power,
but with none of the collective experience of the Board, and through the Governor’s
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review, the prospective parolee has fewer procedural rights 6. Under this law, a
Governor’s decision is deemed “better than” that of the experienced Board. Because
the Governor historically lacks the law enforcement experience of the Board and is, in
theory, deciding on the same material and factors before the Board below, the only
plausible reason for Gubernatorial veto power is to override a politically unpopular
decision.
The impetus for the law was the “widespread and unprecedented public outcry”
after the parole of Archie Fain, convicted of multiple rapes and murders (In re Fain,
139 Cal.App.3d 295 (1983)). Then Governor Deukmejian attempted to block Fain’s
release but failed in court. He then launched a “tough on crime” ballot initiative,
Proposition 89, which passed. Underscoring the political nature of the measure,
Petitioner was specifically named in the official California Ballot Pamphlet, General
Election (1988) issued by the California Secretary of State. (See Appendix G; BN0179),
from “Arguments in Favor of Proposition 89” and “Rebuttal to Argument Against
Proposition 89”, signed by then Governor George Deukmejian.) Naming notorious
murderers in the public materials is a nod to the fact that unpopular or notorious
persons will be denied parole, as a Governor sacrifices justice for votes or other
politicized reasons.
Thus, from its inception, the goal of the Art, V, sec, 8(b) parole reversal power
6
Such as the right to be heard before the decision maker and the right to be represented by counsel in a
case of parole rescission.
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has been to provide an outlet for political sentiment against grants of parole which
were otherwise deemed appropriate by the Board. (See Gilman v. Brown 110
F.Supp.3d 989, 1016 (E.D. Cal. 2014), wherein the Court stated [Proposition 89] sent
“an instruction that the Governor should put his finger on the scale” against release.)
(Gilman, id, reversed on other grounds at Gilman v. Brown 814 F.3d 1007 (2016)).
B. A Neutral Arbiter is a Fundamental Right, and a Law that Infringes
Upon that Right is Structurally Defective under Constitutional
Standards.
1. Parolee Applicants have a Liberty Interest in Parole and The
Fundamental Right to an Impartial Decision-Making Body.
In the criminal proceeding context, the Due Process Clause requires States to
adopt laws that are fundamental to liberty and justice. Williams v. Pennsylvania, 579
U.S. 1, 20 (2016). In California, this liberty interest extends to parole applicants
where they have been deemed to “ ‘have a due process liberty interest in parole (In re
Rosenkrantz, supra, 29 Cal.4th at 664) and “‘an expectation that they will be granted
parole unless the Board finds, in the exercise of its discretion, that they are unsuitable
for parole in light of the circumstances specified by statute and by regulation’.
[Citation.]” (In re Lawrence, supra, 44 Cal. 4th at 1203, quoting Rosenkrantz, supra, 29
Cal.4th at 654; see also People v. Ramirez, 25 Cal.3d 260 (1979).) In Swarthout v.
Cooke, 562 U.S. 216, 219 (2011), this Court acknowledged California’s granting of a
due process liberty interest in the parole process. Once a due process liberty interest
is established and an individual alleges a violation of it, due process analysis looks at
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whether the procedures followed by the State were constitutionally sufficient.
Swarthout v. Cooke, supra, 562 U.S. at 219.
Basic fundamental rights include, among others, the right to a fair hearing in
front of an impartial arbiter. Lisenba v. California, 314 U. S. 219, 236 (1941); Aetna
Life Ins. Co. v. Lavoie, 475 U. S. 813, 825 (1986); Gideon v. Wainright 372 U.S. 335,
344 (1963); Morrissey v. Brewer, 408 U.S. 471, 489 (1972)).
This Court has also determined that administrative agencies, not just judges,
must likewise be impartial. In Withrow v. Larkin, 421 U.S. 35 (1975), this Court stated
“‘a fair trial in a fair tribunal is a basic requirement of due process.’ In re
Murchison, 349 U.S. 133, 136 (1955). This applies to administrative agencies which
adjudicate as well as to courts.” (Withrow v. Larkin, supra, at 46-47, citing
Gibson v. Berryhill, 411 U.S. 564, 579 (1973). See also Morrissey v. Brewer, supra, 408
U.S. at 489 (due process requires “neutral and detached” hearing body for parole
revocation hearing).
Art. V, Sec. 8(b) is constitutionally flawed in that it creates an inherent bias on
the part of a decision maker, thereby violating the due process right of the parolee.
Additionally, there exists no State law to cure such bias.
2. Most Matters of Bias are Left to the States Unless the Bias Rises to a
Constitutional Level, and Here, State Laws Fail to Address the Bias.
Most cases of bias do not rise to a constitutional level. Normally, a State enacts
codes of judicial conduct and legislation addressing bias. Further, most states have
strict laws addressing bias and recusal of judicial officers upon the “appearance of”
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bias. “Because the codes of judicial conduct provide more protection than due process
requires, most disputes over disqualification will be resolved without resort to the
Constitution. Application of the constitutional standard implicated in this case will
thus be confined to rare instances.” (Caperton v. A.T. Massey Coal Co., 556 U.S. 868,
890 (2009).)
In California, for example, Cal. Code of Civil Procedure 170.1(a)7
unambiguously requires disqualification of a judge where only the appearance of
impartiality exists. C.C.P. 170.1 (a)(6) reads: “(a) A judge shall be disqualified if. . . [a]
person aware of the facts might reasonably entertain a doubt that the judge would be
able to be impartial.” In October 2024, the California Supreme Court stated the
statutory disqualification laws should be broadly construed to instill public confidence
7
In lock-step alignment with the Federal and State Constitutional guarantees of impartial decision
making, the American Bar Association Model Code of Judicial Conduct (Canon 2, Rule 2.2) and the
Supreme Court of California via the California Code of Judicial Ethics (Canon 3) have promulgated
rules and law to ensure impartiality. ABA Model Code of Judicial Conduct, Canon Rule 2.2 states: “A
judge shall perform the duties of judicial office impartially, competently and diligently. Cal. Code of
Judicial Ethics, Canon 2(B)(1) states “…a judge shall not allow nor shall a judge convey or permit
others to convey the impression that any individual is in a special position to influence the judge.”.
CCJE, Canon 2. CCJE Canon 3(B)(2) states: “(2) A judge shall be faithful to the law regardless of
partisan interests, public clamor, or fear of criticism, and shall maintain professional competence in the
law.” (CCJE Canon 3.)
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in the judiciary. North American Title Co., Inc. v. Superior Court, 17 Cal. 5th 155, 186
(2024).
Because a Governor is not a judge, a “tribunal”, or an administrative agency,
Art. V, Sec. 8(b) has, in essence, slipped through the cracks of the basic due process
requirement for neutrality and a concurrent mandate to recuse oneself.
However, when a state’s laws infringe upon a fundamental interest, such as the
right to a neutral arbiter when adjudicating a liberty interest, as here, and where
there is no mechanism in that state law to remove a non-impartial arbiter, federal due
process is implicated as the law “‘offends some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as fundamental.’” Aetna Life
Ins. Co. v. Lavoie, supra, 475 U.S. at 820-821 quoting Patterson v. New York, 432 U.S.
197, 201-202 (1977).
In this case, this Court cannot rely upon the existence of California’s strong
recusal statutes to cure any bias that may exist when a Governor reviews parole
decisions because none of the existing laws addressing bias apply to a Governor. Nor
does Article V, Sec. 8(b) (or the statute implementing it, Penal Code Sec. 3041.2)
address biased behaviors and actions of a Governor. This dearth of legislation leaves
inmates with no recourse to challenge the Governor’s bias. Because of the uniqueness
of this law, a Governor is outside of state statutes that address the fundamental
fairness of a neutral arbiter.
As carefully as the Caperton Court was to warn that the facts of constitutional
disqualifications are rare and limited to extreme cases, explaining that States have
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enacted “standards more rigorous than due process requires” (Caperton, supra, 556
U.S. at 889), Caperton did not account for the rare circumstance where the state’s
neutrality statutes do not cover the judicial-like (or tribunal-like) decisions of a
Governor affecting a prospective parolee’s fundamental right to a neutral arbiter in
deciding a liberty interest.
The outlier law embodied in California Constitution, Article V, Sec. 8(b), which
exists only in two jurisdictions, empowers an arbiter who is not a judge, tribunal nor
administrative agency to make decisions of no less significance than those made by a
Judge, tribunal, Parole Board, or administrative agency, all of which are subject to a
mandate of neutrality. A Governor, for lack of being defined in the aforementioned
categories, must not be allowed to skirt the rules of neutrality to which all other
arbiters are held.
3. Federal Due Process Claims Of Bias Cannot Be Easily Defined, Involve
Determination of Whether an Arbiter is “Likely to Be Neutral” or Whether
There is “Potential For Bias”, and Actual Bias Need Not Be Found.
Indeed, the failure of California to account for a violation of a Governor’s lack of
impartiality in their laws raises a due process question. The standard to determine if
a due process violation exists at the federal constitutional level is more stringent than
the “appearance of” bias required by California Statute 8. This Court has previously
articulated a formula to determine constitutional bias. In Aetna Life, supra, 475 U.S.,
this Court stated: “[A] reasonable formulation of the issue is whether the situation is
8 Ca. Code of Civil Procedure Section 170.1 et seq.
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one ‘which would offer a possible temptation to the average . . . judge to . . . lead him
not to hold the balance nice, clear and true.’” (Id., at 822, quoting Ward v. Village of
Monroeville, 409 U.S. 57, 60 (1972).) The Aetna Life Court noted: “what degree or
kind of interest is sufficient to disqualify a judge from sitting ‘cannot be defined with
precision.’” (Aetna Life, at p. 822, quoting Justice Black In re Murchison, 349 U.S. 133
(1955). Then, in Williams v. Pennsylvania, 579 U.S. 1 (2016), this Court further
defined constitutional bias:
“Due process guarantees ‘an absence of actual bias on the part of a
judge. In re Murchison, 349 U. S. 133, 136, [alt. citations omitted]. Bias is
easy to attribute to others and difficult to discern in oneself. To establish
an enforceable and workable framework, the Court’s precedents apply an
objective standard that, in the usual case, avoids having to determine
whether actual bias is present. The Court asks not whether a judge
harbors an actual, subjective bias, but instead whether, as an
objective matter, ‘the average judge in his position is “likely” to
be neutral, or whether there is an unconstitutional ‘potential for
bias.’ Caperton, 556 U. S., at 881, [citations omitted].”
Williams v. Pennsylvania, 579 U.S. at 8. (emphasis added)
In Caperton v. A.T. Massey, supra, 556 U.S. 868, this Court has required a
showing of risk of actual bias or prejudgment. In Caperton, this Court reviewed
whether a recently elected appellate judge could be impartial when the case before
him involved a significant donor to his campaign. His loyalties of “gratitude” to the
donor were at issue in reference to his ability to judge impartially. While the judge in
question undertook a careful self-assessment of his biases and concluded he was not
biased, the Caperton Court found he must nonetheless be disqualified, and it reversed
the lower Court’s ruling. The Caperton Court stated that actual bias need not be
shown, stating:
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“…this Court does not question Justice Benjamin’s subjective findings of
impartiality and propriety and need not determine whether there
was actual bias. Rather, the question is whether, ‘under a realistic
appraisal of psychological tendencies and human weakness,’ the interest
‘poses such a risk of actual bias or prejudgment that the practice must be
forbidden if the guarantee of due process is to be adequately
implemented.’ Withrow v. Larkin 421 U.S. 35 at 47. 95 S. Ct. 1456, 43 L.
Ed. 2d 712.”
Caperton, Id., at 869-870. (emphasis added).
In the case of Taylor v. Hayes, 418 U.S. 488 (1974) a judge held an attorney in
contempt during a contentious criminal trial and sentenced him to four years of
confinement. On reversal and remand, this Court determined the trial judge should
not hear any retrial of the contempt charges, stating the “inquiry must not be only
whether there was actual bias on Respondent’s [the Judge’s] part, but also whether
there was ‘such likelihood of bias or an appearance of bias that the judge was unable
to hold the balance between vindicating the interests of the court and the interests of
the accused. Ungar v. Sarafite, 376 U.S. 575, 588 (1964).’ ” ( Taylor, supra at 501.)
“ ‘Such a stringent rule may sometimes bar trial by judges who have no actual bias
and who would do their very best to weigh the scales of justice equally between
contending parties,’ but due process of law requires no less. In re Murchison, 349 U.S.
133, 136 (1995)”. (Taylor, Id., 418 U.S. at 501).
In each of the cases above, this Court identified circumstances where the
probability of actual bias on the part of a decision-maker was too high to be
constitutionally tolerable, including when the arbiter has a financial interest in the
dispute, or has been the target of abuse by a party before him or her. Withrow v.
Larkin, supra, 421 U.S. 35, 47.
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Here, the alleged genesis for the bias is not similar to previous cases due to the
uniqueness of the law. Can an elected official, who normally is presumed to be
executing his duties neutrally, hold the balance “nice, clear and true” (Tumey v. Ohio,
273 U.S. 510, 532 (1927)) when he is faced with the conflict of releasing a murderer,
despite rehabilitation and the lowest risk assessments for danger, knowing full well
that his constituents will not likely approve, thus risking his own personal political
popularity? The conflict presented is that of the inmates’ rights versus the decisionmaker’s own personal political aspirations.
The conflict is more pronounced and nuanced in the case at bar, where not only
was the Governor faced with freeing an unpopular inmate, but also the man convicted
of killing his “personal hero” and the colleague of his own father. Such a conflict is
beyond what can be expected of any person, taking into account human weakness and
psychological tendencies.
Because a Governor does not neatly fall into the category of “judge” or
“tribunal”, the judicial and administrative laws regarding disqualification for bias
have failed to address the Governor-as-arbiter scenario created by Article V, Sec. 8(b).
A constitutional violation exists because a Governor in the executive branch is the
only adjudicating branch in our system of tribunals to escape the promise of an
impartial arbiter. This is an incurable structural defect rendering it impossible to
remedy the Gubernatorial parole review process from politics and inherent bias.
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4. Art. V., Sec. 8(b) Impermissibly Creates a Lack of Neutrality in That
A Governor is Answerable to His Constituents, Political Factors and
His/Her Own Career Goals, Thereby Rendering the Law Structurally
Flawed.
Applying the standards articulated above, politicians are biased in a manner
that cannot be cured. By the nature inherent in popular elections, politicians are
beholden to their constituents and have a vested interest in their own electability.
This Court has articulated the obvious truth that politicians are beholden to votes and
popularity. “Unlike politicians, judges are not ‘expected to be responsive to [the]
concerns’ of constituents.” (Williams-Yulee v. Fla. Bar 575 U.S. 433, 459 (2015) (conc.
Opn), quoting McCutcheon v. FEC 572 U.S. 185 (2014), (plurality opinion). “Instead, ‘it
is the business of judges to be indifferent to popularity.’ ” (Williams-Yulee, Ibid.,
quoting Chisom v. Roemer, 501 U. S. 380, 401, n. 29 (1991)). Notwithstanding the
checks to ward against unfettered power, (for example judicial review of the
Governor’s decision) Art. V, sec. 8(b) cannot be cured of its inherent bias because it
cannot be separated from political factors that a Governor necessarily faces.
Additionally, the California law is silent on addressing Gubernatorial bias. Inmates
are deprived due process when popular sentiment or generalized fear of crime, to
which a Governor necessarily responds, overrides the laws of the State regarding a
fair and deliberative analysis of a particular inmate’s parole release factors performed
by neutral decision makers. If pressure subverts the proper application of the state’s
parole laws, the inmates’ due process rights are violated.
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The historical application of Art. V, Sec. 8(b) demonstrates decisions are tied to
the political agenda of the particular Governor’s office. In 1982, when John Van De
Kamp campaigned for Attorney General, while still District Attorney for Los Angeles
County, he led a campaign to keep Petitioner Sirhan Sirhan in prison. In 1990, Van de
Kamp ran for Governor, but lost. 9 When Governor Deukmejian put the law on the
ballot, his public campaign pitch was to put the power to “block the parole of convicted
murderers” in the hands of the Governor for the first time. (In re Rosenkrantz, supra,
29 Cal.4th at p. 691 (dis. Opn. of Chin, J.) [quoting Ballot Pamp., Gen. Elec., at 46
(Nov. 8, 1988)]). 10 Further underscoring the inseparability of politics from the reversal
power, are the extremely divergent reversal rates across different Governors’
administrations: Pete Wilson reversed approximately 27% of parole grants 11; Gray
Davis reversed 98%; Arnold Schwarzenegger reversed 60%; and Jerry Brown reversed
20% 12. This lack of consistency strongly hints at an empirical showing that non-
9 Had he been seated, the inherent bias with exclusive executive power to reverse parole would have
come into stark relief.
10
Hurst, J., “Prop. 89, Plan to Give Governor Parole Veto Power”, LA Times, October 28, 1988,
https://www.latimes.com/archives/la-xpm-1988-10-28-mn-340-story.html (Appendix J; BN0197).
11 Though Wilson reversed a relatively small percentage of cases, the Board only granted parole in “a
handful of cases” over his tenure. (Weisberg et al., Life in Limbo: An Examination of Parole Release for
Prisoners Serving Life Sentences with the Possibility of Parole in California (2011) Stanford Criminal
Justice Ctr., 13 (Appendix K; BN0205) at PA_0285, pp. 11-15.)
12 Gov. Newsom has reversed 190 parole grants between 2019 and 2022. Executive Report on Parole,
issued by the Governor’s office for 2019-2023.
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statutory factors are driving parole reversals, rather than the uniformly applied
parole factors mandated under the law.
5. Art. V, Sec. 8(b) Impermissibly Creates a Lack of Neutrality in That a
Governor is The Head of All Law Enforcement in The State.
Beyond political factors, as the head of all California law enforcement agencies,
a Governor is on the prosecution “side” of the case from inception to incarceration. It
can be reasonably asserted that the Governor is no less an “interested party” than the
prosecuting agency 13 In Ford v. Wainwright, 477 U.S. 399 (1986), this Court held that
Florida’s procedure for determining post-trial claims of insanity had a “striking defect”
because it vested the sanity determination – the factfinding decision – entirely within
the executive branch.
“Perhaps the most striking defect in the procedures of Fla. Stat. § 922.07
(1985 and Supp. 1986), as noted earlier, is the State’s placement of the
decision wholly within the executive branch. Under this procedure, the
person who appoints the experts and ultimately decides whether the State
will be able to carry out the sentence that it has long sought is the
Governor, whose subordinates have been responsible for initiating every
stage of the prosecution of the condemned from arrest through sentencing.
The commander of the State’s corps of prosecutors cannot be said
to have the neutrality that is necessary for reliability in the
factfinding proceeding.”
Ford v. Wainwright, Id, at 416 (emphasis added).
13 While the Board of Parole is part of the Executive Branch, the substantive protections governing
their mandate serve to minimize any potential bias issues, in that they are a multiple-person panel,
comprised of experts in law enforcement and rehabilitation, are mandated to be a neutral panel, and
the procedural guarantees to the inmate of P.C. 3041.5 apply. None of which apply to the Governor.
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The Florida law in Ford, supra, had eerily parallel characteristics as are
presented here. Like here, the Florida law allowed an in camera review by the
Governor. The Florida law handed power to the Governor to make the ultimate
factual determination (sanity), as does Art. V, Sec. 8(b) (current dangerousness).
Both laws have “experts” providing information to the Governor, however, the
Governor ultimately has power to reject that expert opinion and make a unilateral
decision affecting liberty (CA) or death (FL).
In this particular case, as in Ford, supra, the “striking defect” of incurable bias
in Art. V, Sec. 8(b) is put to the test. Here, the Petitioner was a youthful offender 14
(aged 24), has a nearly pristine record in prison, with no prior or subsequent
convictions. He was granted parole and was repeatedly found to be at the lowest risk
in California’s Risk Assessment evaluation by experts employed by the prison system
over a period of decades. The Board therefore granted parole. However, the Governor
lacked neutrality, both as the head of the law enforcement agencies and due to the
conflict inherent in a politician’s need to be answerable to his constituents and to his
own career ambitions. Article V, Sec. 8(b) permits an executive who lacks impartiality
to be the sole factfinder on the ultimate issue of suitability for release on parole or
continued incarceration. This presents an incurable conflict of interest resulting in a
14 In California, a “youth offender” is anyone committing his life crime when aged 25 years or younger.
California has extended the U.S. Supreme Court’s laws that treat juveniles differently for purposes of
sentencing. See Ca. Penal Code Sections 3051 and 4801(c); People v. Franklin, 63 Cal. 4th 261 (2016);
People v. Contreras, 4 Cal. 5th 349 (2018)
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lack of neutrality, which is a due process violation.
As the head of the State’s law enforcement apparatus, one would be hard
pressed to say that a Governor is not unduly influenced by his role as chief law enforcer
of the state when adjudicating release of notorious or unpopular prisoners.
6. A Structural Defect of Lack of Neutrality Is a Constitutional Violation
and Therefore a Harmless-Error Analysis Does Not Apply.
The inherent bias built-in to the constitutional amendment, which allows bias
or the likelihood and potential thereof, creates a structural defect making it
unconstitutional. A structural defect exists when a violation affects the entire
conduct of the proceedings from beginning to end (Arizona v. Fulminante, 499 U.S.
279, 309, 310 (1991)), such as when a judge is not impartial, as in Tumey v. Ohio,
273 U.S. 510 (1927), or when a litigant is deprived the right to counsel as in Gideon
v. Wainright, 372 U.S. 335 (1963). Drawing a distinction from a “trial error”, the
Fulminante Court described structural defects as errors in the “mechanism” of the
proceedings as opposed to just a bad ruling within an otherwise fair proceeding.
Fulminante stated such errors “defy analysis by ‘harmless-error’ standards. The
entire conduct of the trial from beginning to end is obviously affected by the
absence of counsel for a criminal defendant, just as it is by the presence on the
bench of a judge who is not impartial.” (Fulminante, Id., at 309-310.)
Here, Cal. Art. V, Sec. 8(b) presents a structural flaw that affects the entire
review process by the Governor. An analysis of Art. V, Sec. 8(b) under the case law
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reveals that “psychological tendencies and human weaknesses” (Withrow v. Larkin,
supra, 421 U.S. 35, 47) of the Governor, who is a politician not bound by neutrality
as judges are (Williams-Yulee v. Fla. Bar, supra, 575 U.S. 433, 459 Con. Op.), with
a personal and/or political agenda necessarily in conflict with an inmate’s right to
release, leads to a conclusion that the mechanism of Governor-as-Arbiter presents a
serious risk of bias, even if inadvertent. This is especially true given that it is
impossible to ascertain what improper or inadvertent motive forms the Governor’s
decision (Williams v. Pennsylvania, 579 U.S. 1, 11 (2016)), because only a “modicum
of evidence” is needed to uphold their decision. (In re Shaputis, 53 Cal. 4th 192, 214
(2011), stating that only a modicum of evidence is required to uphold a Governor’s
reversal).
Due to the structural flaw, the harmless-error analysis is not appropriate here.
The deprivation of a neutral arbiter affects the framework within which the review
proceeds, and is thus not simply a trial error. “‘Without these basic protections, a
criminal trial cannot reliably serve its function as a vehicle for determination of guilt
or innocence, and no criminal punishment may be regarded as fundamentally fair’”.
(Fulminante, supra, 499 U.S. at 309-310, quoting Rose v. Clark, 478 U.S. 570, 577-578
(1986).
While parole review is not a trial, it is clear from prior rulings that prospective
parolees and current parolees have a fundamental liberty interest warranting due
process when those rights are infringed. Swarthout v. Cooke, supra, 562 U.S. 216;
Morrissey v. Brewer, supra, 408 U.S. at 489. This due process includes the right to a
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neutral and detached hearing body at revocation hearings. (Morrissey, supra, at 489).
The same should be provided to a new parolee, who is at risk of being denied the
parole he was recently granted, by a one-person arbiter who is subject to political
pressures.
C. Youth Offenders Are Particularly Impacted by Art. V., Sec.
8(b), Because Of Their Unique Constitutional Penological
Protections, in Violation of the 8th Amendment to the U.S.
Constitution
This Court, as well as the California Supreme Court and the California
legislature have established limitations on the punishment of young people. (Miller
v. Alabama, 567 U.S. U.S 460 (2010): prohibition on imposition of automatic lifewithout-the-possibility-of-parole sentence (LWOP) for juvenile offenders upon special
circumstance findings; Graham v. Florida, 56 U.S. 48 (2010): prohibition of LWOP
for non-homicide juvenile offenders; Roper v. Simmons, 543 U.S. 551 (2005):
prohibition of death sentence on juveniles; Calif. Penal Code §§4801(c) and 3051;
People v. Franklin, 63 Cal.4th 261 (2016); People v. Contreras, 4 Cal.5th 349 (2018)).
These limitations are grounded in scientific consensus that children are
“constitutionally different from adults” due to “distinctive attributes of youth” that
“diminish the penological justifications for imposing the harshest sentences on
[them].” (Miller v. Alabama, supra, 567 U.S. at 472.) The “hallmark features” of
youth include “immaturity, impetuosity, and failure to appreciate risks and
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consequences,” as well as the “possibility of rehabilitation”. (Miller, Id., at p. 477; 8th
Amendment.)
Given this scientific evidence, this Court held that the Eighth Amendment
guarantees juveniles—those under 18 at the time of their offense—a “meaningful
opportunity” to be released if they demonstrate rehabilitation. (Graham, supra, 560
U.S. at p. 75; see also Miller, supra, 567 U.S. at pp. 472–73.) An opportunity for
parole can satisfy this standard only if it “ensures that juveniles whose crimes
reflected only transient immaturity—and who have since matured—will [be
released.]” (Montgomery v. Louisiana, 577 U.S. 190, 212 (2016), italics added.)
Because release must be “realistic” to be meaningful, this Court has held that
executive clemency is too “remote” to provide a meaningful opportunity. (Graham,
supra, 560 U.S. at pp. 70, 82.)
California extended the same “meaningful opportunity” guaranteed by the
Eighth Amendment to all “young people”—those aged 25 and younger at the time of
their offense. (Pen. Code, § 3051: Parole Board must conduct “youth offender parole
hearing[s]” that “provide for a meaningful opportunity to obtain release . . . consistent
with relevant case law.”]; See also Calif. Penal Code §4801, subd. (c).) In enacting the
law, the Legislature's rationale was “that research shows that cognitive brain
development continues into the early 20s or later”. Sen. Rules Com., Off. of Sen. Floor
Analyses, 3d reading analysis of Assem. Bill No. 1308 (2017-2018 Reg. Sess.) as
amended Mar. 30, 2017, pp. 4-5; see also People v. Powell (2024) 24 Cal. LEXIS 3149.
Pp. 4-5.)
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Since the Governor’s veto power created by Art. V, Sec. 8(b) is subject to outside
influences and perceived political whims, as discussed herein above at Section I, B, 4
and 5, the Governor’s minimally restrained power can hinder the unique
constitutional guarantees young offenders enjoy. This then leads to gubernatorial
vetoes that are derived not after giving “great weight to the diminished culpability of
youth as compared to adults, the hallmark features of youth and any subsequent
growth and increased maturity of the prisoner”, but on improper considerations such
as reelection, constituent pressure, or political career advancement. Hence, Art. V,
Sec. 8(b) is fundamentally incompatible with young people’s rights to be a meaningful
opportunity for release upon demonstration of rehabilitation. As such, it should be
found unconstitutional.
II.
THE RISK OF ACTUAL BIAS CAME TO FRUITION IN PETITIONER’S
CASE DUE TO THE GOVERNOR’S STATED AFFINITY AND
PERSONAL CONNECTION WITH THE VICTIM AND HIS FAILURE TO
RECUSE HIMSELF
Article V, Sec. 8(b)as applied to this particular Petitioner and this particular
Governor resulted in a due process violation requiring vacatur of the Governor’s
decision and the reinstatement of the parole decision. Fulminante, supra, 499 U.S. at
309-310; Tumey, supra, 273 U.S. 510.
Petitioner asserts that the Governor demonstrated personal bias in favor of
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the victim (See Appendix E; BN0098) and was obligated to recuse himself,
notwithstanding the fact that there is no mechanism to do so in the law -another of
the law’s flaws. The Governor openly avowed reverence for the victim, had publicly
invited comment from the victim’s widow (Appendix E, items 1 (BN0105, 0112), 2.a
(BN0131), 3.a-b (BN0133), 4.a, 4.c, 4.f (BN0137), 5.a (BN0141), has accepted ex-parte
communications from the next of kin, and failed to provide those communications to
Petitioner’s counsel, who only learned of them after the Governor’s decision and
during habeas proceedings in the lower court. (See Appendix H, BN0187) The
Governor made statements indicating his prejudgment about his impending decision
before even receiving the Parole Hearing transcript. (Appendix E 3.b BN0133)
The Governor-decision-maker has a photo displayed in his home of his own
father with the victim and signed to his own mother, naming it “the most valuable
thing he owns in his life” (Appendix E 1.b (BN0112), 4.a (BN0138), 4.f BN0140);
quoted the victim after his recall victory (Appendix E 2.a, BN0132); and choked up
when he spoke of his “political hero” in September of 2021, just months before
making his reversal decision. (Appendix E 2.a BN1032) He professes to have more
photos of the victim at his office; in 2021 he stated the victim is his “political hero”
and he has a “shrine” to him in his home. (Appendix E 4.a, 4.f (BN0138,139).
Additionally, the Governor perused the California State Archive records 15. The
archives contain such highly prejudicial items as the autopsy photos of Senator
15 See Governor’s Op Ed to Los Angeles Times, Dated January 13, 2022, (See Appendix E 6 BN0146)).
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Kennedy, the gun allegedly used in the crime, and thousands of untested, hearsay
statements from witnesses which were never part of the trial record. Such a viewing
is not only outside of the procedures articulated by the statute (P.C. 3041.2; In re
Rosenkrantz, supra, 29 Cal.4th 616; In re McDonald, supra, 189 Cal.App.4th at 1024),
but the potential to taint the Governor’s opinion is overwhelming given his publicly
avowed and long-time affection for the victim.
Any objective reading of the facts above would lead a reasonable person to
conclude there was a distinct potential for bias, even if inadvertent, by this Governor
against this Petitioner which likely influenced his decision. Likewise, the Governor’s
partiality toward the victim is palpable from his conduct as evidenced by his public
statements. (See Appendix E, BN0098). Despite any denial of bias by the Governor, or
assertions he gave an impartial assessment, this Court must apply a more focused lens
to consider the circumstances and relationships and the “psychological tendencies and
human weaknesses” (Withrow, supra, at 47) and find that the Governor had a bias
against Petitioner and/or “for” the victim. As such, the Governor’s decision should be
vacated because the review process was affected by his bias from start to finish. (See
Fulminante, supra, 499 U.S. at 309-310.)
III.
PAROLE APPLICANTS ARE DENIED DUE PROCESS AT THE
GUBERNATORIAL REVIEW, THUS RENDERING
MOOT THE PREVIOUS PROTECTIONS PROVIDED
DURING THE PAROLE PROCESS
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A. Penal Code section 3041 et. seq. Provides Multiple Procedural
Safeguards That Do Not Exist at the Governor’s Review Level.
In the most simple terms, procedural protections provided throughout the
Board Hearing process, such as the right to have counsel present at Board hearings
(Cal. Penal Code §3041.5 (a)(2)), the right to review the material the Board will
consider at the hearing (P.C. 3041.5(a)(1); Cal. Code of Regs., Tit. 15, §2247), and the
opportunity to be heard and rebut (P.C. 3041.5 (a)(2)), are rendered useless if at the
last instance parole can be reversed with no semblance of due process provided at the
Governor’s review level. By doing so, the statute implementing Article V, Sec. 8(b),
Penal Code 3041.2, unreasonably infringes upon inmates’ rights to liberty without due
process of law, and in doing so, renders the statutory protections meaningless.
This Court acknowledged that, although limited, parolees have a liberty
interest protected by due process. (Morrissey v. Brewer, supra, 408 U.S. at 482.)
California’s parole procedures are governed by Penal Code Section 3040, et. seq, which
provide that parole “shall be granted” “unless [the Board] determines that the gravity
of the current convicted offense or offenses, or the timing and gravity of current or
past convicted offense or offenses, is such that consideration of the public safety
requires a lengthier period of incarceration for this individual.” (Cal. Pen. Code
§3041(b)(1).) A two to three-member panel makes a preliminary finding. The panel’s
decision becomes final after 120 days, unless it is reversed by the full Board due to an
error of law, error of fact or if new information arises that has a “substantial
likelihood of resulting in a substantially different decision upon a rehearing.” (Cal.
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Pen. Code §3041(b)(2).)
The due process safeguards at a Parole Hearing include the right to review
Board materials prior to the hearing (P.C. §3041.5(a)(1)), an opportunity to enter a
written response to any material contained in the file (P.C. §3041.5(a)(1), the right to
be present, to ask and answer questions, and to speak on his or her own behalf (P.C.
§3041.5(a)(2)), the right to a record of the proceedings (P.C. §3041.5(a)(4), allowance of
counsel at the hearing (P.C. §3041.5 (a)(2)16, and the right to counsel at hearings “for
the purpose of setting, postponing, or rescinding a parole release date of an inmate
under a life sentence”. (Pen. Code §3041.7).
Pertinent here, Section 3041.2(a) permits the governor to affirm, modify or
reverse a Board’s parole decision for “an inmate sentenced to an indeterminate prison
term based upon a conviction of murder”. This right derives from Article V, Sec. 8 (b)
of the California Constitution. The Governor conducts a de novo review (In re
Lawrence, supra, 44 Cal. 4th at 1204) and may only “review materials provided by the
Board”. (§3041.2 (a)) and In re McDonald, supra, 189 Cal.App.4th at 1024.) The
California Supreme Court has ruled that it will uphold a Governor’s decision if there
exists “some evidence,” the lowest bar possible, of current dangerousness. (In re
Lawrence, supra, at 1210; In re Rosenkrantz, supra, 29 Cal. 4th at 677.)
16 The right to counsel at a Parole Hearing is not specified in the statute, however the statute
references attendance by counsel and the Board of Parole Directive 2014-02, states that prior to “every
parole suitability hearing” an inmate will be asked if they need appointed counsel or will waive appointed
counsel.
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The California Supreme Court described the Art. V, Sec. 8(b) power as simply
creating “a new level of review, within the executive branch” amounting to just a
“change in identity” of the decider. (In re Rosenkrantz, Id. at 638). If it is only a change
in the identity of the decider, then the rules of procedure for each decider ought to be
the same.
In Petitioner’s case, the Governor created a new body of evidence that was not
before the Board below. This is not only disallowed by established law, but it would
have necessitated the same procedural rights provided at the Board level. 17
Here, Petitioner was not given notice that the Governor received materials
beyond the Board record below. Petitioner had no notice of hundreds of pages of
material received by the Governor from some of the victim’s family including hearsay
statements and an opinion from a former District Attorney unrelated to the case; nor
did he have knowledge that the Governor would view extraneous material at the State
Archives, including hundreds of witness statements. Petitioner was certainly not
provided information regarding what (and, importantly, from whom) the content of
the “emails and texts” the Governor publicly admitted receiving. (Appendix 4.e,
BN0137) In most cases any Governor will necessarily always receive information and
pressure from constituents that is outside of what the Board reviewed below, which is
contrary to California law. (In re Twinn, 190 Cal.App.4th 447, 472 (2010); In re Mc
17 In a typical legal case, any review by a higher court, regardless of whether it is a review de novo or
another standard of review, a litigant is aware of the materials being considered and given a chance to
rebut.
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Donald, supra, 189 Cal App. 4th at 1024.)
The rationale behind a parolee’s right to review what the decision-makers will
have before them is obvious. Fundamental fairness dictates that a person must know
what information is being used against him/her and must be allowed to respond.
(Morrissey v. Brewer, supra, 408 U.S. at 489) The parole process in Penal Code
§3041.5 provides for such, but Art. V., Sec. 8(b) does not. As happened here,
Petitioner received a “review” by the Governor which was supplemented with
extraneous input, both given to the Governor and sought out by him, of which
Petitioner was wholly unaware of and had no ability to rebut. It is unknown who
called the Governor to influence his decision, although Petitioner is aware that the
Governor publicly solicited a call from the late Mrs. Ethel Kennedy before her passing.
(Appendix 4.c, d, BN0139).
Thus, this Governor’s review was not merely a “change in identity”, but rather a
change in the evidence and therefore a denial of due process as well. By the absence of
these rights at the Governor’s review level, the process unreasonably infringes upon
inmates’ rights to liberty without due process of law, and in doing so renders the
statutory protections, so carefully implemented below, meaningless.
B. A Reversal of a Parole Decision By the Governor in California is
Not Dissimilar to a Revocation of Parole in Other Jurisdictions
Yet Lacks Procedural Safeguards.
The majority of states utilize Parole Boards, or similar bodies, to make parole
decisions. Once the Board grants parole, a parolee is released to the community.
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Often, if not most times, there are conditions set on parole and, if violated, parole may
be revoked. Based upon this Court’s ruling in Morrissey, supra, revocation of parole
must be conducted with a minimum of due process which includes, among other
things, the written notice of claimed violations, disclosure of the evidence against him,
and right to be heard, and the right to an impartial decision-maker. Morrissey, supra,
408 U.S. at 489.
Conversely, in California, due entirely to the fever and fear that fueled Prop. 89
and the passage of Art. V, Sec. 8(b), a parolee can be granted parole yet never get
beyond the prison walls due to the almost immediate revocation by the Governor; a
revocation, without the due process required by Morrissey and Penal Code §§3041.5
and 3041.7. The “grievous loss” (Morrissey, supra p. 482) of liberty felt by a California
parolee whose parole is revoked by the Governor is felt no less acutely than by a
parolee of another jurisdiction. But, the California parolee whose parole is “revoked”
by the Governor is not afforded similar procedural rights. His long-anticipated hope to
return to family and society, to become self-reliant, form attachments and fulfil his
promise to live up to conditions of parole are at once taken from him. And they are
taken summarily by a procedure blatantly subject to political influence, and by a
politician who is placed in the untenable position of making a politically unpopular
decision or risking his political career. The California Supreme Court’s adoption of
extreme deference to Governors in making the decision by using a “some evidence”
standard does not balance against the fact that a Governor can pick and choose just
“some evidence”, from an often voluminous record, to support his/her political aims.
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If Art. V, Sec. 8(b) passes constitutional mandates at all, then parolees, who are
granted parole by the Board, should have the same due process rights at the
Governor’s review when that parole is essentially revoked.
C. Fundamental Rights Guaranteed by the U.S. Constitutional are
Superior to State Law When a State Law Violates Those Federal
Rights.
While this Court has to be cautious in infringing on a State’s right to legislate
laws as it sees fit, those laws must at least not infringe on the superior guarantees of
the U.S. Constitution. In addressing a Fourth Amendment issue not relevant here,
this Court did nonetheless comment that the analysis of whether a right is infringed is
based on “our societal understanding that certain areas deserve the most scrupulous
protection from government invasion”. (California v. Greenwood, 486 U.S. 35, 43
(1988); Oliver v. United States, 466 U.S. 170, 178 (1984)). See also, U.S. Const. Amend.
XIV.
Here, society understands that anyone who has worked hard enough in prison
to gain the support of the Panel of Parole Commissioners, and then the full Board, to
be suitable for parole, should not, at the last goal-post have that liberty revoked due to
the decision made within a politicized process, by a non-neutral arbiter, and without
the minimum due process of law available below in the Board hearing and revocation
hearings. (P.C. 3041.5 et seq and Morrissey, supra.)
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CONCLUSION
Art., V, Sec. 8(b) is structurally defective in all its applications to all and must
be invalidated. Petitioner’s grant of parole must be reinstated because the bias
inherent in Art. V, Sec. 8(b) as applied came to pass in that the Governor was
personally biased and lacked neutrality yet still decided his case.
Dated:
Respectfully Submitted,
1/13/2025
__________________________
Angela Berry, for Petitioner
1/13/2025
_____________________________
Denise F. Bohdan, for Petitioner
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CERTIFICATE OF COMPLIANCE
This brief was prepared using 12-pt Century Schoolbook and is double-spaced.
Further, the petition is 38 pages in compliance with Rules of the Supreme Court of
the United States, Rules 33 and 39.
Dated:
1/13/2025
Angela Berry
39
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.