September 24, 2012 http://www.sfgate.com

Like other state prisoners, the 725 inmates on California’s Death Row can’t vote. But if they could, there’s evidence that most of them would vote against a November ballot initiative to abolish the death penalty.

It’s not that they want to die, attorney Robert Bryan said. They just want to hang on to the possibility of proving that they’re innocent, or at least that they were wrongly convicted. That would require state funding for lawyers and investigators – funding that Proposition 34 would eliminate for many Death Row inmates after the first round of appeals.

Bryan has represented several condemned prisoners in California as well as Mumia Abu-Jamal, the radical activist and commentator whose death sentence for the murder of a Philadelphia policeman was recently reduced to life in prison. The attorney said California inmates have told him they’d prefer the current law, with its prospect of lethal injection, to one that would reduce their appellate rights.

“Many of them say, ‘I’d rather gamble and have the death penalty dangling there but be able to fight to right a wrong,’ ” Bryan said.

Or, as Death Row inmate Correll Thomas put it in a recent newspaper essay, if Prop. 34 passes, “the courthouse doors will be slammed forever.”

Added legal rights

The seeming paradox reflects the tangled legal procedures surrounding capital punishment and the state’s efforts to guard against wrongful convictions and executions by providing additional rights to the condemned.

All criminal defendants who can’t afford to hire a lawyer have a right to legal representation, at state expense, for their trial and appeal. But only those sentenced to death are guaranteed a state-funded legal team for the post-appellate proceedings known as habeas corpus.

Habeas corpus allows inmates to challenge their convictions or sentence for reasons outside the trial record – typically, incompetent legal representation, misconduct by a judge or juror, or newly discovered evidence. Such challenges are reviewed by both state and federal courts.

For condemned prisoners, it often represents their best chance to stave off execution by presenting their claims to federal judges, who are appointed for life, rather than elected state judges. A ruling that leads to their acquittal, or even a finding of innocence, is also more likely in habeas corpus than in the earlier direct appeal.

Life without parole

Prop. 34, on the Nov. 6 ballot, would replace the death penalty with life in prison without parole. Death Row inmates would have their sentences reduced to life – and, as a consequence, lose access to state-funded lawyers for habeas corpus, except for those who have already filed their claims.

They would have to file them on their own, or with volunteer lawyers. A judge who finds strong evidence of innocence could order the state to pay the inmate’s legal costs for further proceedings.

More than 300 inmates would be affected by the measure’s passage, said Bryan, who as a state-appointed habeas corpus lawyer won a state Supreme Court ruling last month overturning a death sentence for a double murder in San Jose.

Same legal footing

Attorney Natasha Minsker, the Yes on 34 campaign manager, said the initiative would place now-condemned inmates “in the same position as every prisoner convicted of a serious felony in California,” with the same right to go to court.

They would no longer automatically get state-funded lawyers for habeas corpus claims, Minsker said. The main purpose of those lawyers now is “to save a person’s life” from a wrongful execution, but that task would disappear if Prop. 34 passed, she said.

No one has polled Death Row inmates on Prop. 34. But an organization called the Campaign to End the Death Penalty sent letters to 220 condemned prisoners in California and received about 50 replies, all but three of them against the ballot measure, said Lily Mae Hughes, the group’s director.

The reasons were described in commentaries carried in June by San Francisco’s BayView newspaper from three condemned prisoners, two of them opposing Prop. 34.

“We are in fact taking a step backward in our ability to challenge our convictions,” said Kevin Cooper, convicted of murdering four people, including two children, in San Bernardino County after his escape from prison in 1983. State and federal courts have upheld his death sentence, although five federal judges declared in a dissenting opinion two years ago that they believed he might be innocent.

Thomas, whose death sentence for the fatal shooting of a San Diego motorist was upheld by the state Supreme Court last year, said fellow inmates agree with him that life without parole is “another death penalty.”

Donald Ray Young, one of two brothers sentenced to death for the 1995 murders of five people at a bar in Tulare – crimes they deny committing – supported Prop. 34.

“Let us choose the ballot box,” he wrote, “or the pine box will choose us.”