I wrote an appeal in Gardner v. Superior court (111 Cal.Rptr.3d 155,185 Cal.App.4th 1003) where (for the first time) an appellate court found that preparation for ALL Special Circumstances murder cases should be conducted as if the prosecution was seeking death. This means that the trial lawyer should immediately work on penalty phase mitigation and seek significant funding and 2nd counsel. Only when/if the prosecution withdraws death as an option and does this on the record, does the case get treated as an ordinary murder case.
This decision gave strong incentives to the prosecution to announce early that death was off the table. Otherwise the defense funding was greatly increased and the quality of the defense improved. The decision addressed the following points.
Penal Code section 987.9 (section 987.9) provides that in “the trial of a capital case . . . [an] indigent defendant . . . may request the court for funds for . . . investigators, experts, and others for the preparation . . . of the defense.” Apparently for years, the Contra Costa County Superior Court entertained section 987.9 requests by indigent defendants charged in special circumstances murders even when the requests were made before the preliminary hearing. Petitioner Raymond Gardner, charged with special circumstances murder, moved in 2009 for section 987.9 funds, a request the court denied solely because the district attorney had not announced that he was seeking the death penalty and, until he did, petitioner’s case was not “presently a capital case.”
We conclude this was error, as a “capital case” as used in section 987.9 means one where the defendant faces the possibility of the death penalty, where the defendant “actually risks death.” ( Sand v. Superior Court (1983) 34 Cal.3d 567, 571 [ 194 Cal.Rptr. 480, 668 P.2d 787] ( Sand).) So, unless the district attorney makes an announcement to the contrary, a defendant charged with murder with special circumstances is exposed to that punishment, and a section 987.9 request must be heard on the merits.
Daniel Horowitz has taken eight death penalty cases to trial and I have been counsel on over 20 special circumstances cases. Most of the cases start with death possible and have gotten reduced. Thinking out of the box is key to a successful criminal defense. We specialize in this area and invite your calls if you need legal help for criminal cases.
If you need assistance on a high stakes or complex criminal case, contact Daniel Horowitz at (925) 291-5388. We often work with other attorneys assisting with trial preparation, document management and complex case analysis.
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