Tuesday, October 17, 2006

In Re Wen Lee (Cal. Ct. App. - Oct. 17, 2006)

You've got to read this opinion, at least if you care about how murderers are paroled -- or, more accurately, not paroled -- in California.

It's an issue upon which people (on both sides) have strong feelings. And it's an issue on which California, led by its latest governors, indisputably favors one side over the other. People convicted of murder in California are almost never, ever granted parole, even after 20 or more years. As an almost uniform rule, and virtually without exception, the Board of Parole Hearings -- staffed by appointees of the Governor -- denies requests for parole to anyone convicted of (even second-degree) murder. And in those exceptionally rare cases in which the Board recommends the grant of parole, the Governor almost invariably reverses.

Which is precisely what happens here. You should read Justice Rubin's opinion -- which is very good -- if only for the facts of the underlying murder and an assessment of the character of the defendant. A summary does not nearly do it justice. Basically, Wen Lee was a 65 years old man with no criminal record when he shot at a person who bought his restaurant and owed him money and accidentally killed the man's wife. Lee pled guilty to second degree murder, has served 17 years in prison, and is now a hobbled, nearly blind 82 year old man who wants parole. The Board recommended it. Governor Schwarzenegger reversed, and kept him in prison.

The underlying story is telling in its own right, as is the fact that Governor Schwarzenegger -- like many before him -- reverses the recommendation of parole even for the most sympathetic of defendants, for fear of being branded as "soft on crime" were a murderer ever to be released and reoffend. (Can you say: Willie Horton?) This is not a partisan issue, by the way: the most shameless of our most recent governors in this regard was Gray Davis. Contemporary practice has simply made a farce of the ostensible legal requirement that parole be typically granted as a matter of course. For murderers, the operative de facto rule is the exact opposite of the controlling de jure legal principle. Something that -- as in other areas (on both sides of the aisle) -- speaks volumes about our ostensible commitment to the rule of law.

Equally interesting is the procedural story regarding what happens to Lee's habeas petition. Justice Rubin writes an outstanding, and incredibly persuasive, opinion that reverses Governor Schwarzenegger's decision and holds that Lee is entitled to be released on parole. I particularly liked the following line on pages eight through nine, a sentence that itself captures a large part of both Lee's present condition as well as a principal basis for Judge Rubin's conclusion: "Weakened by the march of time trod by all mortals, Lee is now 82 years old and in poor health, leaving him to hobble from room to room." That ain't the picture of a guy who's about to replicate the one crime he's ever committed in his life. Plus, any sentence that contains the phrase "trod by all mortals" is, in my opinion, totally cool.

But while you're reading Justice Rubin's (unanimous) opinion, which is incredibly powerful, don't forget one thing. Sure, Lee gets habeas relief now, after six parole hearings. Sure, Justice Rubin's opinion makes it seem like Lee should clearly be entitled to such an award. But remember that the trial court flatly rejected such an argument, and dismissed his petition. More importantly, don't forget that, earlier this year, the California Court of Appeal -- the same one that currently waxes eloquently on why Lee is entitled to habeas relief --summarily denied (without comment) this exact same petition. That only the intervention of the California Supreme Court, which ordered an order to show cause, resulted in the Court of Appeal taking up the case and releasing this hobbled 82 year old man from prison.

The opinion and the issues it raises are definitely worth contemplating. And reading the opinion is a good start.