The Supreme Court came up one vote short of granting a rehearing last week in People v. Nadey. We mentioned that it’s probably been a long time since the court granted a non-“transition rehearing” (a “transition rehearing” being one where one or more justices in the majority are replaced before the court rules on the rehearing petition), which is what a Nadey rehearing would have been, but we didn’t know when that had last happened.
Thanks to Ron Matthias, a retired California senior assistant attorney general who specialized in homicide appeals, we might have the answer. He argued the death penalty appeal in People v. Bell. Bell is a non-transition rehearing case, although a major transition in the court’s composition might well have determined the case’s outcome.
The court affirmed Bell’s conviction and death sentence in a December 1987 opinion by Justice Stanley Mosk with Chief Justice Malcolm Lucas and Justices Edward Panelli, David Eagleson, and Marcus Kaufman concurring. Justices Allen Broussard and John Arguelles issued concurring and dissenting opinions, although only Justice Broussard voted to overturn the death sentence. (People v. Bell (1987) 241 Cal.Rptr. 890.)
The court granted rehearing eight weeks later on the votes of Justices Broussard, Arguelles, Eagleson, and Kaufman.
After a reargument, the court issued a second opinion in September 1989, again affirming the conviction and death sentence. (People v. Bell (1989) 49 Cal.3d 502.) The opinion explained the reason for the rehearing grant: “it appeared . . . that the record on appeal submitted to this court by the Clerk of the Contra Costa County Superior Court differed in pagination, volume designation, and in minor respects in content from that in the possession of the People and defendant. As a result, this court’s rejection of defendant’s claim regarding the constitutional propriety of the procedure by which his jury had been selected may have rested on a faulty factual premise.” (Id. at p. 514.)
The second opinion was written by Justice Eagleson, an opinion joined by only Chief Justice Lucas and Justice Panelli. Justice Kaufman filed a concurring opinion. As he did with the first opinion, Justice Arguelles concurred and dissented, although ultimately voting to uphold the death sentence. Although he hadn’t voted for rehearing, Justice Mosk — the first opinion’s author — changed his mind about the case, stating in a dissent, “I must depart from my former view and conclude that [prosecutorial] misconduct cannot be deemed harmless.” (Id. at p. 557.) Justice Broussard again dissented, but this time asserted that both the conviction and the death sentence should have been reversed.
When a second rehearing petition was filed, only Justices Mosk and Broussard voted to grant it.
Although a court transition wasn’t a factor in the rehearing grant, a dramatic change in the court’s personnel quite possibly affected how the capital appeal was decided.
Bell was first argued in March 1986, but the case was not then submitted, so the 90-day period to issue an opinion hadn’t started. (That’s the way the court operated then, but that’s another story.) Eight months later, Chief Justice Rose Bird and Justices Cruz Reynoso and Joseph Grodin lost their retention elections. (See here and here.) They left the court in January 1987 when their terms expired, with a Bell opinion still pending.
Justices Arguelles, Eagleson, and Kaufman joined the court in March 1987. Bell was reargued before the reconstituted court in April and, as mentioned above, the first opinion filed in December.
The big-money campaign against Bird, Reynoso, and Grodin harshly criticized the court’s frequent reversals of death penalty judgments. It’s not certain that the court would have reversed Bell’s death sentence had those three justices remained on the court, but his odds of prevailing would have been much better.
State and federal habeas corpus petitions followed, none of which succeeded. (See In re Bell (2007) 42 Cal.4th 630.) A 2017 habeas petition was dismissed as moot because of Bell’s March 2019 death.
