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In Re Viray (Cal. Ct. App. - April 15, 2008)

By Shaun Martin

You know the story. The Board of Parole Hearings grants parole to a convicted murderer in an exceptional case. The Governator files a rubber-stamp reversal of the grant. The defendant files a habeas petition. The California judiciary then reverses the Governor.

What's true writ large in California is even true in fairly conservative San Diego. As this case demonstrates.

Nicomedes Viray stabbed a man to death on a dance floor. In an admittedly senseless act. He was sentenced to 16 to life, and has now been in prison for 24 years. He has no prior criminal history. He's got a pretty good record in the joint. He was 27 at the time of his offense, and is now 51. He's got a ton of employment skills that he obtained in prison. He's got very good job opportunities. And, one more thing, he's going to be deported to the Phillipines upon his release anyway.

The Governor says that he's nonetheless clearly a danger to society. The Court of Appeal says (and rightfully so, I might add): "Not."

Even Justice Haller -- who writes separately because she wants to be a fair piece more deferential to the Governor than expressed in the majority opinion by Justice McIntyre (who's hardly a flaming leftie) -- concurs in the result. This is not a case where the Governor is trying to do the right thing. Or even making a real effort to follow the law. It's a token, routinized political act. To which the judiciary rightly responds.

Full post as published by California Appellate Report on April 15, 2008 (boomark / email).