by including the argument from Kaneb’s law review article: California’s onerous standard was an unfair and unconstitutional violation of a person’s right to due process.
The judge did not take the bait. What they were asking “would have been such a big game changer,” notes Kaneb. “We were asking them to change it for the whole system, not just for Mr. Sagin.”
So Kaneb and the NCIP team set their sights on Sacramento. Their goal: Find a lawmaker to sponsor a new state law specifying that those who are already convicted can prevail in a habeas petition based on new evidence if the evidence “more likely than not” would have made a difference at their original trial.
It was a big dream, but NCIP had been part of coali- tions in the past that had gotten state laws changed. At the turn of the millennium, for example, NCIP founders Linda Starr and Kathleen “Cookie” Ridolfi supported a milestone law allowing already-convicted people to access new DNA evidence, the type of evidence that might point unerringly to innocence. That law actually was what jump-started NCIP to become an official clinic at Santa Clara Law, partly to help handle an expected increase in DNA innocence claims.
Around 2013, NCIP joined another coalition that would secure a legislative change giving convicted people a chance to seek a new hearing for their release—or habeas relief—after expert testimony in court later turned out to be false.
But at the time, no one was fighting to change the standard that was keeping so many wrongfully convicted people behind bars—the language that started with Lindleyrequiring new evidence to point “unerringly to innocence.”
Led by Kaneb, Starr, and others at NCIP, a team trekked to San Francisco and met with the American Civil Liberties Union. They learned they’d likely find a champion for their cause in state Sen. Mark Leno, a San Francisco liberal who had sponsored legislation on a range of issues, many of which ultimately became law in California: same-sex marriage, civil rights, privacy, public records, and more.
They were right. Leno was immediately on board with the need to fix the standard. He was especially galled by “how far California was from the rest of the country in assessing these kinds of cases,” recalls Starr. “For a senator like Leno, progressive and forward-thinking, the notion that we are behind Alabama, Mississippi, Georgia, or Texas was outrageous.”
The bill got pretty far on its first attempt, winding its way through five committees over several months without sparking opposition from important law enforcement groups like police unions or district attorneys.
But then the team was hit with an unexpected foe: judges.
The Judicial Council, the body that represents the interests of judges, registered concerns that the bill would spur so many people to demand their convictions be reviewed or overturned that it would cost the courts up to an additional $22 million to handle the increased workload. The Council would later tell NCIP they were most concerned that inmates defending themselves would file legally unsound petitions that would nonetheless need review. They also feared that those on death row would unleash a flurry of petitions.
The bill was tabled by the Assembly Appropriations Committee—the keepers of state coffers.
“The votes had been going well, but in appropriations… it just never got called, never got voted on, and it just died,” Kaneb recalls. “It was pretty devastating … like a big wind out of our sails.”