Thursday, April 12, 2007

In Re Olson (Cal. Ct. App. - April 12, 2007)

I'm sure that this case will get a fair amount of play in blogs and in the press. Not because of its substantive content, which concerns rather unusual (at least nowadays) procedural questions regarding how one should calculate and apply sentences under the old Indeterminate Sentence Law (for crimes prior to 1976) in light of the new(er) Uniform Determinate Sentencing Law of 1976, which sometimes authorizes an earlier release date than the old ISL. This used to be a big deal during the changeover, but that was over 30 years ago. It doesn't happen much nowadays, since we're talking about very, very old crimes.

Nonetheless, the case will get play because it involves the appeal of Sara Jane Olson; in her old life, Kathleen Soliah. Who was a member of the Symbionese Liberation Army (SLA) in the 1970s who went underground, only to be captured decades later, after she had become a respectable citizen. So even though I'm not sure anyone will much care about the underlying merits, the matter will probably be at least mentioned in various places, if only for the identity of the petitioner.

But, for me, the most fun part of the case was footnote 10 of the opinion. Ultimately, Justice Doi Todd holds that Olson is at least partially right -- albeit on procedural grounds -- and that the matter requires a remand since the trial court didn't issue an OSC or writ. The net result of which will be more delay, since the Court of Appeal accordingly can't reach the merits. Which is a result that doesn't exactly please Olson and her counsel, since the whole point of the appeal was to get her out of prison earlier.

To which Justice Doi Todd responds, in footnote 10: "During oral argument, counsel commented on undue delay. Counsel should consider that the issues in the petition are relatively complex and that it appears that all the participants in the matter, not just the superior court and the Board, are struggling to reach a proper resolution. Olson, as well as appellant, had the opportunity to raise the Romero issue in the superior court, and neither party objected so as to avoid a futile appeal. Furthermore, Olson’s belated apprehension has contributed in large part to the delay as the Board no longer has the expertise it once had in calculating the terms for nonlife ISL prisoners."

In other words: "You have a point, but stop whining. This stuff is tough. We haven't done it for 30 years, and we're trying our best. P.S. - This wouldn't be an problem, by the way, if you had objected below. Or, more to the point, if your client hadn't gone underground for 20 years. So mellow out, and cut us some slack."