State of California Gavin Newsom, Governor Office of the ...

State of California

Office of the State Public Defender

1111 Broadway, 10th Floor Oakland, California 94607-4139 Telephone: (510) 267-3300 Fax: (510) 452-8712

August 19, 2020

Gavin Newsom, Governor

The Honorable Geoffrey M. Howard Marin County Superior Court 3501 Civic Center Drive P.O. Box 4988 San Rafael, California 94913-4988

RE: San Quentin Consolidated Writ Proceeding, Marin County Superior Case Nos: SC212684, SC212818, SC212820, SC212823, SC212824, SC212933, SC213030, SC213031, SC213032, SC213033, SC213034, SC213035, SC213085, SC213086, SC213087, SC213088, SC213102, SC213103, SC213104, SC213105, SC213106, SC213108, SC213109, SC213178, SC213179, SC213181, SC213182, SC213183, SC213184, SC213185, SC213186, SC213187, SC213200, SC213201, SC213202, SC213203, SC213204, SC213221, SC213222, SC213226, SC213227, SC213228

Amicus Curiae Letter in Support of San Quentin Consolidated Petitions for Writ of Habeas Corpus

Dear Honorable Geoffrey M. Howard,

The Office of the State Public Defender (OSPD) submits this amicus curiae letter in support of the petitions for a writ of habeas corpus filed in the San Quentin Consolidated Writ Proceeding.

Interest of Amicus

OSPD has zealously represented indigent defendants on appeal since 1976 and has represented death-sentenced individuals almost exclusively since 1990. OSPD currently represents 101 death-sentenced clients, 90 of whom reside at San Quentin, and approximately 85 of whom are housed in units now ravaged by the ongoing coronavirus pandemic. We have previously represented clients in 273 prior capital cases dating back to 1979. Our clients

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and former clients are uniquely vulnerable to disease. They skew older. They have numerous medical comorbidities making them particularly susceptible to COVID-19. And they reside in an overcrowded and unsanitary facility in which social distancing and other protective measures to check the spread of coronavirus are impossible.

Several of our clients or former clients are now dead. To date, twelve death row residents have died.1 More will likely die soon. Dozens of condemned inmates have been hospitalized, and many of those that survive will likely suffer permanent adverse health effects as a result of their lifethreatening infections. Hundreds of condemned inmates, including a significant percentage of our clients, have been infected but have not been hospitalized. Nonetheless, they face potential lifelong mental and physical disabilities as a result of their illnesses. Others have fortuitously survived unscathed or have escaped infection entirely--for now. But they wait in fear, facing a high risk of contracting COVID-19, or the possibility of becoming reinfected.

OSPD supports petitioners in the consolidated cases in seeking the broadest, and most expeditious, possible remedies to address this crisis. As discussed below, lack of physical space and adequate staffing at San Quentin in both the mainline and on death row is endangering our clients' health and lives and is impeding us from representing our clients with active cases. The population of San Quentin must be reduced immediately or there will inevitably be a further loss of life.2 Unless there is increased space in San

1 Chronicle Staff, San Quentin Death Row inmates who have died from COVID-19, S.F. Chronicle (Aug. 10, 2020) < /article/San-Quentin-Death-Row-inmates-who-have-died-from-15471062.php> [as of Aug. 18, 2020] (identifying the following 12 condemned inmates who had died of complications related to the coronoavirus: Richard Eugene Stitely, Joseph S. Cordova, Scott Thomas Erksine, Manuel Machado Alvarez, Dewayne Michael Carey, David John Reed, Jeffrey J. Hawkins, Troy A. Ashmus, John M. Beames, Johnny Avila Jr., Orlando G. Romero, Pedro Arias).

2 See McLean, `Not getting a flu vaccine is like not wearing a mask:' What the upcoming flu season could look like, S.F. Chronicle (Aug. 11, 2020)

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Quentin, there is no feasible way to adequately protect anyone, including the residents of death row. OSPD therefore writes to urge the Court to consider the lives and wellbeing of our clients and former clients in assessing these consolidated petitions.

Factual Background

In the midst of a global pandemic caused by a deadly virus, corrections officials transferred an infected inmate from a Southern California lockup to San Quentin prison, touching off an outbreak that swept through the institution, infecting and killing people inside. This transfer happened on April 18, 1918.3 The global pandemic of H1N1 in 1918 caught San Quentin unprepared at the time, but the outbreak was well documented for future study.4 Unlike in 1918, the outbreak of COVID-19 at San Quentin State Prison was predictable and, indeed, predicted.

On March 18, 2020, the Interim Executive Director of the Habeas Corpus Resource Center (HCRC), Michael Hersek, wrote a letter to San Quentin Warden Ron Broomfield, and Chief Medical Officer Alison Pachynski. This letter was signed by the State Public Defender, Mary McComb, and others responsible for representing people on death row. Mr.

[as of Aug. 18, 2020] (noting with flu season looming that Dr. Randy Bergen, clinical lead for Kaiser Permanente Northern California flu vaccine program warns that both flu and COVID-19 affect multiple organs and that "[t]he repercussions of influenza and COVID19 seem to be multifactorial, especially for those that have underlying conditions and recovery can be very long"); Hoffman, Fearing a `Twindemic,' Health Experts Push Urgently for Flu Shots, The New York Times (Aug. 16, 2020) [as of Aug. 19, 2020].

3 Chaddock, 1918 flu pandemic puts prison medical staff to test, California Department of Corrections and Rehabilitation (Oct. 18, 2018) [as of Aug. 18, 2020].

4 See Stanley, Influenza at San Quentin Prison, California, Public Health Reports (May 9, 1919) Vol. 34, pp. 996-1008.

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Hersek implored San Quentin to provide inmates with personal protective equipment (PPE) and cleaning supplies, to avoid using solitary confinement to quarantine COVID-19 positive patients, and to allow for social distancing, among other recommendations. At the time the letter was written, there were no COVID-19 positive inmates at San Quentin.

On May 30, 2020, the California Department of Corrections (CDCR) transferred 121 medically vulnerable inmates to San Quentin from the heavily virus-infected California Institution for Men (CIM) in Southern California. Numerous inmates had not been tested within the four weeks before they were transferred. Several of the inmates were exhibiting COVID19 symptoms on the bus ride to San Quentin. Once at San Quentin, 15 of the inmates tested positive for COVID-19.5 Prison officials housed the transferees intermingled with San Quentin's population in South block.6

On June 1, 2020, the chief Public Health Officer for the County of Marin, Dr. Matthew Willis, warned Warden Broomfield and other highranking prison officials that unless the new transfers were "radically sequestered" from the existing population, "the prison was setting the stage for a major outbreak."7 Prison officials ignored Dr. Willis's warning and other public health recommendations going forward.8

5 Cassidy & Fagone, 200 Chino inmates transferred to San Quentin, Corcoran. Why weren't they tested first?, S.F. Chronicle (June 8, 2020) [as of Aug, 18, 2020].

6 Cassidy, San Quentin prison sergeant dies of COVID-19, S.F. Chronicle (Aug. 9, 2020) [as of Aug. 18, 2020].

7 Cassidy, San Quentin officials ignored coronavirus guidance from top Marin County health officer, letter says, S.F. Chronicle (Aug. 11, 2020) [as of Aug. 18, 2020], p. 1.

8 Ibid.

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In a memo dated June 15, 2020, a group of physicians from the University of California, San Francisco and the University of California, Berkeley reported their observations from a recent visit to San Quentin and provided recommendations to address the COVID-19 outbreak.9 Their impressions were that the situation was dire, because prison management did not take into account the dilapidated condition of the facility, the lack of ventilation, and the need for incarcerated people and staff to socially distance. The physicians made some immediate recommendations, the most urgent of which was to reduce San Quentin's prison population by 50%.10

Despite having had over a century to learn from the 1918 pandemic, despite the well-documented and widely-known risks to inmates in carceral facilities, and despite repeated warnings from public health officials, San Quentin failed to implement a plan to keep its residents safe from COVID-19 before the outbreak, and failed to adequately respond to the outbreak once it began.

The Coronavirus Surge Through San Quentin Mainline and Death Row

By June 25, 515 residents at San Quentin had tested positive for the coronavirus, 166 of them condemned inmates.11 By July 12, San Quentin had over 1,899 active cases.12 By July 7, 62 San Quentin COVID-19 positive

9 McCoy, Bertozzi, Sears, Kwan, Duarte, Cameron, & Williams, Urgent Memo - COVID-19 Outbreak: San Quentin Prison, AMEND: Changing Correctional Culture and UC Berkeley School of Public Health (Jun. 15, 2020) [as of Aug. 18, 2020].

10 Ibid. 11 Cassidy & Fagone, Coronavirus tears through San Quentin's Death Row; condemned inmate dead of unknown cause, S.F. Chronicle (June 25, 2020) [as of Aug. 18, 2020]. 12 Narayan, Two more San Quentin prisoners die from COVID-19, S.F. Chronicle (July 12, 2020) ................
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