By Leslie A. Gordon
Berkeley Law’s Death Penalty Clinic scored a huge victory in June when the California Court of Appeal gave a death row prisoner access to a district attorney’s records through the California Public Records Act, issuing its first published opinion on the issue. The court rejected the prosecutor’s argument that death-sentenced individuals are not “persons” entitled to equal access to public records.
The opinion reaffirms the promise of open government in California, said Elisabeth Semel, the clinic’s founding director and clinical professor. It also draws attention to the public interest in exploring racial disparities in death penalty cases, she said, since the requested documents related to allegations of discriminatory capital prosecution.
Inmate La Twon Weaver was sentenced to death in San Diego County in 1993 for a robbery-murder that took place when Weaver was 23. Mr. Weaver is represented by Semel and Ty Alper, the clinic’s associate director, and by private counsel, James Thomson. Weaver’s current claim pending before the California Supreme Court alleges that the San Diego District Attorney’s Office discriminated in its selection of him for capital prosecution based on his race and ethnicity (he is African American and Latino) and that of the Caucasian victim.
U.S. Supreme Court precedent sets a high bar for discovery of information related to alleged discriminatory prosecution, according to Semel. As a result, it can be quite difficult to use traditional discovery methods to require the prosecution to turn over evidence that would support a selective prosecution claim like Mr. Weaver’s.
“We had to consider other avenues for obtaining some of this information,” Professor Semel said. “It occurred to me that some of the records we needed might be available through the California Public Records Act.”
An open-government statute that endorses the public’s right to access government records, the California Public Records Act (CPRA) presumes access. It requires objecting public agencies to demonstrate that the requested records are expressly exempt from disclosure—or that the public interest in non-disclosure far outweighs the public interest in disclosure. The Death Penalty Clinic had never before litigated a CPRA case and, the San Diego DA’s Office declined to turn over most the records.
The Death Penalty Clinic filed and lost a petition for relief in San Diego Superior Court. In the Court of Appeal, Semel argued that Weaver had the same right of access to public agency records—files related to Weaver’s claim that he was selected for capital prosecution based on his and the victim’s race—as any other person. She also argued that the records were not subject to the “investigatory files” exemption, as the DA’s office claimed.
The clinic won in a published opinion. The DA then asked the California Supreme Court to review the case and depublish the opinion. Both applications were denied. “We ended up with a published opinion, one that can be cited as precedent,” Semel said.
Three Death Penalty Clinic students, Colleen Bazdarich ’13, Paul Meyer ’14 and Amanda Rogers ’14, were heavily involved in Weaver’s case, conducting legal research, drafting briefs and helping Semel prepare for oral argument. The experience “reaffirmed why I came to Berkeley Law,” Meyer said. “It was a remarkable opportunity to develop skills and deepen substantive and procedural knowledge in ways that just can’t be duplicated in the classroom or summer employment.”
Meyer, who will be clerking in the Fourth and Ninth Circuit Courts of Appeals, noted that the Weaver case may help future litigants who seek empirical data needed to determine the role of race in death penalty prosecutions. “It’s popular to talk about the value of clinical education to students. That’s certainly true,” Meyer said. “But this case also shows the still more direct importance of clinics in the world. Mr. Weaver’s victory, while very small in the grander scheme of things, is really a testament to the impact clinics can have in shaping the law.”