Tuesday, March 16, 2010

In Re Moses (Cal. Ct. App. - March 16, 2010)

The Moses in this case is not exactly like the other Moses. Unless history somehow failed to record that the old Moses -- like the current one -- "consumed copious amounts of alcohol and . . . visited Willie Rhodes, whose brother had killed Moses's father in a gambling dispute five years before, [whereupon] Moses shot Rhodes once at close range, killing him, and fled."

That said, while in prison, the current Moses apparently has been darn similar to his namesake. "Moses‘s behavior in prison has been exemplary. He has a nearly spotless disciplinary record (his only instance of misconduct was watching television without using the required headphones 27 years ago). He has performed years of outstanding work in the prison laundry. He has shown insight into the causes of his actions and worked to understand and change his behavior by engaging in decades of self-help programs such as Alcoholics Anonymous (AA) and the Victim Offender Reconciliation Group (VORG.) He has consistently taken responsibility and repeatedly expressed remorse for his commitment offense."

But this is California. In which, unless you're literally able to part the Red Sea, the Governator isn't going to let you out on parole if you've been convicted of murder. So "after 29 years, 13 parole consideration hearings, and three decisions to grant parole by the Board of Parole Hearings (Board), Moses remains in jail. Governor Arnold Schwarzenegger has reversed all three of the Board‘s decisions to release Moses. We ask why?"

Why indeed. Though, in truth, we all know the answer.

So the Court of Appeal is forced to take on the tasks deliberately abdicated by the political branches of the state. And does so here.

"The Governor found that Moses‘s release on parole posed an unreasonable risk of danger to public safety for three reasons, each of which is seriously flawed. First, the Governor concluded that the second degree murder was ―especially atrocious. This conclusion is not supported by the evidence, and not only because the Governor ignored, or inaccurately described, certain critical and undisputed factual circumstances. Second, the Governor concluded that, while Moses ―says he accepts responsibility for his actions and is remorseful, he maintains that he shot [Rhodes] in self defense. Moses has not maintained such a claim; furthermore, any discrepancies between Moses‘s account of the shooting are insignificant in light of his undisputed acceptance of responsibility for the crime, his repeated expressions of remorse, and his postconviction history. Third, the Governor stated that, at the time of the murder, Moses ―had a significant record of criminal violence, even though Moses did not have such a record. The Governor‘s analysis merely mentions without discussion other very significant parole suitability factors, such as Moses's flawless behavior in prison for the last 29 years. In short, the Governor‘s reasoning relies heavily on immutable factors, at times unsupported by evidence, and amounts to little more than the 'rote recitation' of only those factors suggestive of risk. (See In re Lawrence (2008) 44 Cal.4th 1181, 1210 (Lawrence).) . . . We conclude that there is no evidence in the record to support the Governor‘s repeated reversals of the Board's grant of parole and that further consideration by the Governor cannot fill that void. Therefore, we hold that the Governor‘s reversal of the Board‘s decision to grant parole violated Moses‘s due process rights. We grant Moses‘s petition, order the Governor to vacate his decision, and reinstate the Board‘s July 10, 2007 grant of parole."

In short, at least with respect to Moses, the Governator's decision was far from reminiscent of Solomon.