Criminal appeals languish in 3rd District

With the recent outpouring of long-delayed opinions from the 3rd District Court of Appeal in Sacramento, apparently spurred by my January 26 complaint to the Commission on Judicial Performance about egregious decisional delay in that court, it has become evident that the delay has been mostly with criminal appeals. Of 400 or so 3rd District decisions in cases since 2018 that have languished between two and eight years, some 250 are in criminal appeals. Of the 89 long-delayed opinions that have been filed since my CJP complaint, 66 are in criminal appeals. And at least 70 more long-delayed 3rd District criminal appeals currently remain unadjudicated and unscheduled for oral argument -- appeals filed as far back as 2015.

Code of Civil Procedure Section 44 requires California's appellate courts to hear oral argument in civil appeals "next after cases in which the people of the state are parties," so that criminal appeals -- in which "the People" are the plaintiffs -- must be given calendar preference. For years now, the 3rd District has been systemically violating this statutory mandate. More troubling, however, is that these delays violate the constitutional guarantees of due process and equal protection.

Although there is no constitutional right of appeal, "if a State has created appellate courts as 'an integral part of the ... system for finally adjudicating the guilt or innocence of a defendant,' [citation], the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution." Evitts v. Lucey, 469 U.S. 387, 393 (1985). This means the criminal appellate process, like the trial process, must be timely. The federal courts follow a bright-line rule that delay in adjudicating a criminal appeal for more than two years after filing of the notice of appeal, including more than 11 months from the completion of briefing to the filing of the opinion, gives rise to a rebuttable presumption that the State's appellate process is ineffective, making the appeal a "meaningless ritual." Harris v. Champion, 15 F.3d 1538, 1555-58 (10th Cir. 1994). Every one of the 3rd District's 250 long-delayed criminal appeals has crossed that line.

The most obvious harm caused by inordinate appellate delay occurs when a defendant completes a challenged term of imprisonment before the appeal is decided -- which has happened more than a few times recently in the 3rd District. There is no adequate remedy for time lost to imprisonment. Less obvious, but potentially just as harmful, is where the delay impairs the defendant's right to a retrial or resentencing in the event of a reversal -- for example, due to faded memories or lost evidence. And harm can occur even if a long-delayed appeal eventually proves unsuccessful -- in the form of psychological damage from the "increased anxiety, mistrust, hopelessness, fear, and depression" that "results from the very thwarting of the hope that liberty will be restored through a right that the State has guaranteed -- the appellate process." U.S. ex rel. Green v. Washington, 917 F.Supp. 1238, 1277-78 (N.D. Ill. 1996) (original emphasis).

An appropriate remedy for a prisoner whose appeal has been unconstitutionally delayed is a conditional writ of habeas corpus ordering the prisoner's release if the appeal is not decided within a specific time. Harris, 15 F.3d at 1566-67. But what about defendants whose appeals have been mooted by completion of their sentence before adjudication or who have served part of a belatedly reversed sentence? One might reasonably argue they should have a civil cause of action against the State (of which the court is an agent) for damages under 42 U.S. Code Section 1983 for deprivation of constitutional rights.

The systemic denial of statutory calendar preference for criminal appeals in the 3rd District is a crisis of constitutional dimension -- with no end in sight. And even if the court immediately begins complying with Code of Civil Procedure Section 44, giving calendar preference to the court's backlogged hundreds of pending criminal appeals, oral argument in civil appeals will cease for some time, thus shifting the crisis of delay to the civil side.

I have previously written of ways this problem can be ameliorated by California's judicial, executive, and legislative branches of government. ("Fixing appellate delay," Daily Journal, May 7.) Solutions are at hand. What is lacking is leadership. 