The Supreme Court almost granted rehearing in a death penalty case on Friday. The rehearing would have been a conditional one, to allow for consideration, on appeal instead of in a habeas corpus proceeding, of evidence of racist conduct by the deputy district attorney who prosecuted the defendant.
After a 5-2 court affirmed the death sentence in People v. Nadey (2024) 16 Cal.5th 102 in June (see here), a justice in the majority voted with the two dissenters for a rehearing. A rehearing is among the rarest of Supreme Court actions, especially when, as in Nadey, there has been no change in the court’s composition after the opinion issues and before the ruling on a rehearing petition. I don’t know offhand when the last non-“transition rehearing” occurred, but it’s probably been decades.
Also highly unusual was that there were dueling separate statements accompanying the rehearing denial order.
The three-month-old Nadey opinion — authored by Justice Carol Corrigan and signed by Chief Justice Patricia Guerrero and Justices Leondra Kruger, Joshua Groban, and Martin Jenkins — rejected an argument that the superior court had incorrectly denied the defendant’s Batson/Wheeler challenge, i.e., one claiming an unconstitutional racial discrimination in peremptorily challenging prospective jurors. The dissent — written by Justice Goodwin Liu, joined by Justice Kelli Evans — found merit in the challenge.
The dissent also noted that “a recent investigation into the Alameda County District Attorney’s Office, which prosecuted Nadey, revealed ‘strong evidence that, in prior decades, prosecutors from the office were engaged in a pattern of serious misconduct, automatically excluding Jewish and African American jurors in death penalty cases.’ ” The majority declined to consider the evidence because “[n]either party has discussed these extra-record materials or sought judicial notice of them.”
But the defendant’s rehearing petition brought the evidence to the fore, referring to the investigation and requesting judicial notice of jury selection notes produced in a related federal court action. The notes, from another death penalty case, are those of the same deputy district attorney who prosecuted Nadey.
The justices’ disagreement regarding the rehearing petition is not whether the investigation and jury selection notes should be considered, but when and how.
Justices Liu and Evans voted to grant the judicial notice request and to conditionally grant rehearing. Justice Kruger, who signed the court’s opinion rejecting the Batson/Wheeler claim, voted for a conditional rehearing grant.
A dissenting statement by Liu, and signed by Evans but not Kruger, said the conditional grant would allow the justices “to preserve our jurisdiction . . . and then defer action on the matter and await any further results from the federal proceedings.” The statement also discussed evidence from other federal proceedings, including the same deputy DA’s handwritten note on a juror’s questionnaire in another capital case saying, “I liked him better than any other Jew. But no way.”
The four-justice majority’s responding statement didn’t dispute the importance of the evidence (the statement said the “defendant’s allegations of racial bias, if true, are profoundly troubling”), but also asserted that considering the evidence in the case before it “is not how direct appellate review works.” Instead, the majority denied the rehearing petition “without prejudice to [the defendant’s] ability to ‘present[ ] such information on a fuller record in connection with a petition for habeas corpus if he so chooses.’ ”
The dissenting statement pointed to the very long wait for condemned defendants to even get habeas counsel appointed and asked, “If the . . . investigation results in additional judicial findings that bolster Nadey’s Batson claim, why should Nadey be relegated to the years-long wait for appointment of habeas counsel instead of having his claim adjudicated properly on direct appeal?”
Related:
Profile of Justice Kruger discusses her reticence to grant a rehearing
