PASADENA, Calif. — A federal appeals court considering whether California’s death penalty is unconstitutional because of excessive delays focused Monday mainly on procedural issues over whether a killer’s novel legal theory had been addressed by the state Supreme Court.

In the case of a Los Angeles rapist and murderer on death row for more than two decades, three judges on the 9th U.S. Circuit Court of Appeals wanted to know if all appeals were exhausted in state court before a federal judge ruled last year that the death penalty was dysfunctional because of unpredictable delays that have seldom led to executions.

More prisoners have died of natural causes on death row than have perished in the death chamber. More than 900 killers have been sentenced to death since 1978, but only 13 have been executed.

U.S. District Judge Cormac Carney, an appointee of President George W. Bush, ruled last year that years of unpredictable delays from conviction to execution resulted in an arbitrary and unfair system that violates the Constitution’s Eighth Amendment barring cruel and unusual punishment.

Whether the panel that also includes Democratic presidential appointees even takes up that issue may depend more on whether lawyers for inmate Ernest DeWayne Jones properly raised it with the California Supreme Court. Convicts have to present all legal claims in state court before appealing in the federal system.

Jones, 51, said in his appeal that the state didn’t provide a fair and timely review of his case, the delay exceeded that in other states, and death row’s conditions constituted torture. He said the uncertainty of his execution inflicts suffering and, if it ever goes forward, it will serve no legitimate purpose.

Copy the Story Link