Saturday, September 15, 2007


One thing you hear about Duke University law professor Erwin Chemerinsky from just about everybody, is how brilliant and fair and sound he is as a legal scholar, even if he does sound off as a liberal moonbat.

I'm not so sure.

The furor over Chemerinsky's nomination, retention, and dismissal as founding Dean of the UC Irvine law school continues. The Los Angeles Times continued to write on the UCI cha-cha on September 14, 2007 [boldface added]:

The criticism [contra Chemerinsky] included a letter from the California Supreme Court criticizing a Chemerinsky opinion piece in The Times.
In an interview Friday, [California Chief Justice Ronald M.] George said Chemerinsky made a "gross error" that was "very troubling" to the court in an Aug. 16 article that criticized U.S. Atty. Gen. Alberto R. Gonzales. [UCI Chancellor Michael V.] Drake offered him the job that same day.
George, an appointee of Gov. Pete Wilson, said that Chemerinsky wrote incorrectly that only one state, Arizona, provided lawyers for death row inmates who want to file a constitutional challenge, known as a habeas corpus petition, to have their sentences or convictions overturned.
George said he was surprised Chemerinsky would make such a mistake. The court asked Court Clerk Frederick K. Ohlrich to write a letter to the editor to The Times to correct the piece.
"None of us could understand how somebody, let alone someone who is very bright and a fine legal scholar, could get that wrong," George said. "It had nothing to do with his philosophy. I certainly feel he is an outstanding legal scholar and a fine advocate."
...George gave a copy of the letter to [prominent Orange County attorney Tom] Malcolm.
Malcolm said he gave the letter to Drake. "It disturbed him, but I don't think it was the reason for his decision." Chemerinsky was angered by the letter when told about it by The Times.
"If the justices sent a letter to UC Irvine with the goal of influencing the dean process, that's inappropriate," he said.
He also stood by his article. "My op-ed was accurate in saying California does not comply with the federal standards for providing counsel to those on death row in their post-conviction proceedings, and Arizona is the only state deemed in federal district court to have met the federal standards."

His August 16, 2007 op-ed [boldface added]:

Atty. Gen. Alberto R. Gonzales is about to adopt an unnecessary and mean-spirited regulation that will make it harder for those on death row to have their cases reviewed in federal court...It's at this stage, which includes habeas corpus petitions, that serious flaws in trial are often exposed, including the kind of mistakes that lead to the execution of innocent people.

Almost no states provide counsel in these crucial proceedings. So the 1996 law laid out this deal: If a state starts providing lawyers to capital defendants, it will get the benefit of a shorter, six-month statute of limitations.

So far, only Arizona has complied. Other states have decided that it's not worth the expense.

...Gonzales, it has been widely reported, is about to certify California and other states as being in compliance with the 1996 law, in essence just giving them the six-month statute of limitations. But these states have done nothing that this law requires. Everywhere but Arizona, death row inmates still have to pay for their attorneys (unlikely), get pro bono representation (difficult) or represent themselves (unwise). Any "certification" is a lie.

Here is the relevant section of the Antiterrorism and Effective Death
Penalty Act of 1996

Sec. 2261. Prisoners in State custody subject to capital sentence; appointment of counsel; requirement of rule of court or statute; procedures for appointment
`(a) This chapter shall apply to cases arising under section 2254 brought by prisoners in State custody who are subject to a capital sentence. It shall apply only if the provisions of subsections (b) and (c) are satisfied.
`(b) This chapter is applicable if a State establishes by statute, rule of its court of last resort, or by another agency authorized by State law, a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by indigent prisoners whose capital convictions and sentences have been upheld on direct appeal to the court of last resort in the State or have otherwise become final for State law purposes. The rule of court or statute must provide standards of competency for the appointment of such counsel.
`(c) Any mechanism for the appointment, compensation, and reimbursement of counsel as provided in subsection (b) must offer counsel to all State prisoners under capital sentence and must provide for the entry of an order by a court of record--
`(1) appointing one or more counsels to represent the prisoner upon a finding that the prisoner is indigent and accepted the offer or is unable competently to decide whether to accept or reject the offer;
`(2) finding, after a hearing if necessary, that the prisoner rejected the offer of counsel and made the decision with an understanding of its legal consequences; or
`(3) denying the appointment of counsel upon a finding that the prisoner is not indigent."

"A finding that the prisoner is not indigent". Means-testing. A state legislature, or Supreme Court, can restrict the offer of a government-paid lawyer to the "indigent", and it can set up a scheme to determine who is "indigent".

My point here and now is not whether Dr. Chemerinsky is totally wrong about the 180-day statute of limitations rule, or its likely effects, or the process of certified compliance.

My point--and that of the California Supreme Court--is that his opposition has crossed a line into misstatement of federal law, and misrepresentation of California as out of compliance with that law. And he continues to do so, in another op-ed for the Los Angeles Times, September 14, 2007:

"What was it about my views that was too controversial? Only one example was mentioned: an Op-Ed article I wrote on these pages criticizing a proposed regulation by then-Atty. Gen. Alberto R. Gonzales to shorten the time death row prisoners have to file their habeas corpus petitions. There are more than 275 individuals on death row in California without lawyers for their post-conviction proceedings. The effect of the new rule would be that many individuals, including innocent ones, would not get the chance to have their cases reviewed in federal court.

...The truth is that a person's politics should play no role in the decision to hire them for a faculty or administrative position. All that matters is that the individual be committed to creating an institution where all viewpoints will be respected and flourish. That is what academic freedom is all about."

I would add the proposition that the nominee be practically sound in their field of discipline. Chemerinsky has not been. This is not the first rabble-rousing op-ed where he abuses his authority as a legal scholar to promote a false, but politically favorable, conclusion.

"Arizona is the only state deemed in federal district court to have met the federal standards"--well sure, if Arizona is the only state that anybody sued federally over their compensation mechanism under the 1996 Act.

I think Chief Justice George did get one thing wrong, when he said "None of us could understand how somebody, let alone someone who is very bright and a fine legal scholar, could get that wrong,...It had nothing to do with his philosophy." I can guess why a liberal opposes means-testing, and it does have to do with his philosophy.

So there we stand, with Erwin Chemerinsky defiantly wrong, and telling everybody from the California Supreme Court on down where to go. Do we need that sort of thing at the University of California? No!--Berkeley has already got Angela Davis, and seniority hath its privileges.

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