life in prison, with the remote possibility of death.

Cormac Carney went to the Air Force Academy for a year, then transferred to UCLA where he played football.  He played professionally for a year after college, then went to Harvard for law school.  In January 2003, Bush the Younger nominated him to be judge of the U.S. District Court, Central District of California.  He was confirmed by the Senate three months later.

None of that, except indirectly the fact that he's a judge, is why I'm writing about him.  Hell, it isn't why I wrote about him in 2009 or 2011, either.  I write about him every couple of years because every couple of years he does something remarkable from the bench.

He holds the government accountable for its misconduct in prosecuting folks they think are bad guys.

Judges just don't do that.  On the rare occasions they acknowledge that the government cheated, they blow it off.  It was inadvertent.  It didn't matter anyway.  Can't make an omelet without breaking a few eggs.  But Carney.

In 2009, he dismissed, with prejudice, fraud and conspiracy charges against Broadcom.  

Based on the complete record now before me, I find that the government has intimidated and improperly influenced the three witnesses critical to Mr. Ruehle's defense. The cumulative effect of that misconduct has distorted the truth-finding process and compromised the integrity of the trial.
To submit this case to the jury would make a mockery of Mr. Ruehle's constitutional right to compulsory process and a fair trial. The Sixth Amendment to the United States Constitution guarantees the accused the right to compulsory process for witnesses in its defense. For this constitutional right to have true meaning, the government must not do anything to intimidate or improperly influence witnesses. Sadly, government did so in this case.

In 2011, he was the judge in Islamic Shura Council of Southern California v. Federal Bureau of Investigation. The government's lawyers lied to him, and he called them on it.  They said they had a right to do it.  National Security and all.  Because terrorism.    To which he said, fuck you. (Though not in those words.)

The Government argues that there are times when the interests of national security require the Government to mislead the Court. The Court strongly disagrees. The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance. The Court is charged with the humbling task of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully deprive them of their liberty. The Court simply cannot perform this important task if the Government lies to it. Deception perverts justice. Truth always promotes it.

Wednesday afternoon, he did it again.  This time it wasn't prosecutors or lawyers.  This time it wasn't the feds.  It was, instead, California.  Which in a detailed, carefully laid out and factually delineated 29 page opinion he excoriated for creating a systematically dysfunctional death penalty system.  It's captioned

ORDER DECLARING CALIFORNIA'S DEATH PENALTY SYSTEM UNCONSTITUTIONAL AND VACATING PETITIONER'S DEATH SENTENCE.

It's not that he says the death penalty itself is a problem.  It's the way California implements it.  Here's the guts of it, laid out in the first two paragraphs.

On April 7, 1995, Petitioner Ernest Dewayne Jones was condemned to death by the State of California. Nearly two decades later, Mr. Jones remains on California’s Death Row, awaiting his execution, but with complete uncertainty as to when, or even whether, it will ever come. Mr. Jones is not alone. Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution. Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.

That is the reality of the death penalty in California today and the system that has been created to administer it to Mr. Jones and the hundreds of other individuals currently on Death Row. Allowing this system to continue to threaten Mr. Jones with the slight possibility of death, almost a generation after he was first sentenced, violates the Eighth Amendment’s prohibition against cruel and unusual punishment. 

There are, Judge Carney points out, since California's death penalty law took effect in 1978, more than 900 men and women have been sentenced to die.  13 have been executed.  93 have died of natural causes, drug overdoses, homicide, or suicide. 1 was killed by another state. There are, today, 748 on death row.

Why the problem?  Why can't California be Texas (or Ohio)?  Because it won't provide the resources. 

Every death sentence must be reviewed by the California Supreme Court.  

To pursue that appeal, indigent Death Row inmates are entitled to the assistance of court-appointed counsel. See Cal. Penal Code § 1240. But inmates must wait years—on average, between three and five years—until counsel is appointed to represent them.

(Footnote, explaining that they're all indigent, omitted.)

But why that delay?  Oh, cause California cut the funding of public defenders to do the work and won't pay enough for appointed counsel to take it on.  Same for state habeas relief where the state won't provide the necessary funding for lawyers or investigators.

So, because California insists on having a death penalty but refuses to provide the resources necessary to make it functional, it just has a system of (one more time) 

life in prison, with the remote possibility of death.

And that possibility isn't merely remote.  It's also random, arbitrary.  Under the circumstances, and because of California's actions not the inmates', the law loses any deterrent value it might otherwise have and fails even to provide meaningful retribution.  Or so he says.

And that's unconstitutional.

Kamala Harris, California's Attorney General, says that she's reviewing the decision to decide whether to appeal.  It's hard to imagine that she won't.  And hard to imagine that if she does Judge Carney won't ultimately be reversed.  

Not because he's wrong.  But because he's right.

Because Law of Rule.

  Carney Order