ACLU, attorneys say fear prevents complaints about 3rd District

Three attorneys have filed declarations with the California Supreme Court stating delays on the 3rd District Court of Appeals harmed their clients. According to a declaration filed by an ACLU attorney, many more are afraid to speak out.

"Most of the attorneys with whom I spoke expressed an unwillingness to provide personal declarations about their experiences," Emilou H. MacLean, a senior staff attorney with the ACLU of Northern California, wrote in a declaration dated Monday. "The attorneys requested anonymity as they expressed concern at how a declaration might affect their continued practice before the Third District."

This echoed appellate attorney Jon B. Eisenberg's arguments in a brief he filed last week in Eisenberg v. Court of Appeal for the Third Appellate District, S269691 (Cal. Sup. Ct., filed July 6, 2021).

Eisenberg filed a writ urging the state Supreme Court to order the 3rd District court to give priority to 66 long delayed criminal appeals. Often, defendants have already served out their sentences and enhancements, before decisions are made on their appeals, he said.

His most recent brief addressed the court's arguments that he lacks standing and the defendants and their counsel must file such a writ. Eisenberg wrote that attorneys are afraid to speak out and alleged some had even been told to keep quiet by the Central California Appellate Program, which assigns defense counsel in the 3rd and 5th District Courts of Appeal.

In a reply brief filed Monday, the 3rd District's attorney again argued the court should reject the writ on standing grounds.

"The petition was filed by a member of the public who lacks a beneficial interest in the outcome and seeks sweeping relief untethered to the record in any of the cases at issue," wrote Raymond A. Cardozo, a partner with Reed Smith LLP in San Francisco. "Petitioner ... represents none of the appellants on whose behalf he seeks writ review but who has appointed himself as the party entitled to review."

Cardozo declined to comment on the record. The 3rd District did not respond to an email seeking comment.

Laurel L. Thorpe, executive director of the Central California Appellate Program, also sent a letter to the Supreme Court on Monday asking it to "correct" several facts in the record. Among the items in Eisenberg's Aug. 18 reply brief she said need correcting are his assertions that "CCAP has instructed its participating attorneys 'not to engage in any conversations about this writ.'"

But according to MacLean's declaration, "Two attorneys from whom I requested interviews refused to speak with me on advice of the Central California Appellate Program." She also wrote one attorney urged a client to limit their scope of appeal because of delays, while another called it "futile" to move for expedited review.

Even when defendants get a favorable ruling, MacLean wrote, long delays make it difficult for attorneys to locate witnesses and even sometimes the clients themselves.

The ACLU also filed a letter of amicus curiae to support Eisenberg. MacLean argued the delays in criminal cases are a serious due process violation. Defendants have already "asserted their rights" by filing an appeal, and the "systematic and inordinate delays in resolving criminal appeals are presumptively prejudicial; no individualized review is necessary," she wrote.

"The Third District Court of Appeal has responded to the writ petition addressing only procedural matters -- challenging the standing of petitioner -- and the issue of whether the statutory mandate imposes a 'public duty,'" McLean wrote. "Respondents are silent regarding the severe due process violations implicated by their extraordinary delays."

"I'm grateful for the ACLU's support," Eisenberg said via email. "Their meticulous work validates what I've been doing."

Three defense attorneys filed declarations in the case. None of them claimed the Central California Appellate Program told them not to speak out. But all three stated delays in the 3rd District have caused hardship for their clients. Defendant William Shepherdson filed a declaration claiming his mother lost her home and the mother of his children came down with cancer while he served a full sentence that was later overturned.