3rd District speedup too late for some defendants

Criminal defense attorneys who appear before the 3rd District Court of Appeals say the court has been deciding cases more quickly recently. But it has not been fast enough to prevent some defendants from serving months or years in prison or jail only to have their sentences reduced or vacated after they were already released.

Appellate attorney Tracy A. Rogers said she has had cases in every California appellate district except the 1st and the 6th, and "the 3rd is by far the slowest." But this appears to be changing, she added.

"I've found the 3rd has been a lot faster in the past year or two. They've been pretty much just like everybody else," said Rogers, who is based in Colorado Springs.

Attorney Patrick J. Hennessey Jr. agreed, though he said he didn't really notice a difference until about "six or eight months ago."

"It seemed like cases would sit forever. I wouldn't even hear anything from the court," Hennessey said. "Now they're sending out argument notices, waivers and everything like that at a fairly rapid pace. It doesn't mean the cases aren't a little bit stale."

A representative of the court did not respond to a request for comment.

Appellate attorney Jon B. Eisenberg has been waging a campaign for about a year to push the court to speed up. He filed a complaint with the Commission on Judicial Performance and two unsuccessful petitions to the California Supreme Court.

"It's no coincidence that the 3rd District's output surged after I filed my CJP complaint in January," the Healdsburg-based attorney said.

A review of the 66 criminal cases Eisenberg cited in his second Supreme Court petition appears to confirm the court's faster pace. The court has now decided about 60% of those cases, with most sentences affirmed or only slightly modified. It scheduled several more for oral argument this fall.

People v. Ebert-Stallworth, C076574 (Cal. App. 3rd, filed May 30, 2014) was not one of these cases, but it illustrates the delays Eisenberg highlighted. In 2018, the court threw out the appellant's murder conviction for a lack of evidence. But Christoph Ebert-Stallworth II spent nearly four years in prison while his appeal played out.

Ebert-Stallworth's case featured many of the kinds of details one often finds in delayed criminal appeals, Rogers said. Most notably, Ebert-Stallworth's first attorney, Susan P. Stone, died. Rogers then took over and later filed a supplemental opening brief, and the attorney general's office responded.

But when the court ruled in Ebert-Stallworth's favor in January 2018, Rogers said, it did so based on arguments Stone had already submitted years before. The docket showed the court considered the case fully briefed on Oct. 1, 2015.

"The thing that's kind of concerning was the case was fully briefed before she passed away," Rogers said. "Then the case just sat there."

Efforts to reach Ebert-Stallworth were unsuccessful.

The court took less than two years to decide People v. Hayes, C088541 and C090401 (Cal. App. 3rd, filed Dec. 17, 2018). But the defendant in that case suffered a different sort of harm: over two years on a forced regime of antipsychotic medication.

The unanimous panel confirmed his commitment to the Department of State Hospitals, but found "involuntary administration of antipsychotic medication is not supported by substantial evidence."

The man's appellate attorney, Rachel Lederman, said the case illustrates that all state appellate courts have trouble deciding mental health cases in a timely manner. Mental health commitments are typically just a year or two, the San Francisco based Lederman said, though they can be renewed.

"Generally, appeals take well over a year," Lederman said. "Often we have the court dismissing mental health appeals because they're moot."

But she added, "The 3rd District is one of the slowest ones in my experience, particularly in mental health cases like this one. It's difficult to have meaningful appeal."

Lederman said she based her assessment on her experiences before four California appellate courts, but had "no statistics or analysis" to back it up.

Annual Judicial Council reports show the 3rd District is among the slowest districts in deciding criminal appeals. The 2021 report found it was the second slowest in the state in median time to decide criminal appeals during the 2019-2020 fiscal year, at 599 days. But these same statistics also showed it had improved compared to the 2018-2019 fiscal year, when it took a median of 829 days. The reports also consistently show the 3rd is burdened with one of the highest caseloads per justice.