SAN FRANCISCO (CN) --- On Wednesday, California’s highest court wrestled with whether juries must decide unanimously and beyond a reasonable doubt to condemn a defendant to death, a question whose answer could overturn the sentences of hundreds of inmates sitting on death row.
Juries are required to reach unanimous verdicts on guilt, and in imposing the death penalty, they must also find that aggravating factors like the “heinousness” of the murder or the defendant’s gang affiliation outweigh mitigating factors like past abuse or mental illness.
But the death row appeal of convicted murderer Don’te McDaniel raised the question of whether jurors must also unanimously determine beyond a reasonable doubt what aggravating factors apply and whether the death penalty is appropriate.
McDaniel and his co-defendant Kai Harris were convicted of two gang-related murders in 2008 but the jury deadlocked on whether they deserved to be executed. A new jury was impaneled for the penalty phase, delivering its verdict of death after deliberating for four days.
In taking up McDaniel’s automatic appeal, the state Supreme Court asked counsel for both sides for briefing last year on the following question: “Do Penal Code section 1042 and article I, section 16 of the California Constitution require that the jury unanimously determine beyond a reasonable doubt factually disputed aggravating evidence and the ultimate penalty verdict? If so, was appellant prejudiced by the trial court’s failure to so instruct the jury?”
McDaniel’s attorney Elias Batchelder told the justices Wednesday that the framers of California’s Constitution believed that the dual protections of unanimity and reasonable doubt are intertwined.
Batchelder said the history of juries with reasonable doubts about death as an appropriate punishment dates back to the 1920s with People v. Hall, where the California Supreme Court reversed a trial judge’s imposition of the death penalty after a jury could not reach a unanimous sentencing decision, finding it was as if the judge "had denied the defendant a trial by jury in the first instance” by going over the jury’s head.
"Juries control the penalty with their verdict, and in People v. Hall we see exactly that— the jury right is being applied to a normative issue of whether someone should live or should die. And it’s extremely difficult to reconcile that the constitutional protection of unanimity applies but the constitutional protection of reasonable doubt does not,” Batchelder said.
Justice Goodwin Liu interjected to say Batchelder’s argument has “a lot of appeal from a fairness perspective,” but that it doesn’t seem to have much case support. “But that's not dispositive, we have novel issues that come before this court all the time,” he added, asking whether there are any past cases other than Hall that reversed a death penalty sentence based on the absence of reasonable doubt.
“Certainly there have been no reversals of sentences based on the idea that the reasonable doubt instructions were not provided,” Batchelder replied.
“Is it conceivable [that]. . . . this issue has simply been missed this entire time, that for a 150 years we have missed this issue?” Liu asked.
“It’s not so much that the issue has been entirely missed,” Batchelder said, “There have been contradictory statements throughout this state’s history about whether the jury right applies to the penalty decision, and no court has really ever made a thorough attempt to look at this history, to look at the contradictions and try to resolve them.”
California currently has 703 Death Row inmates, and a decision in McDaniel’s favor could cast doubt on the constitutionality of all of their sentences.
The state has not executed anyone since 2006 when U.S. District Judge Jeremey Fogel halted all executions amid concerns that those being put to death experienced excessive pain under its three-drug protocol.
Governor Gavin Newsom, who declared a death penalty moratorium in 2019, filed a legal brief in the case urging the court to require both unanimity and proof beyond a reasonable doubt to prevent racial bias from tainting the deliberative process.
Batchelder raised the same issue at oral argument Wednesday.
“The governor’s amicus brief discussed the highly coercive, sometimes racially fraught pressures that manifest in the jury room,” he said. “For a variety of reasons, jurors sometimes have strong doubts about the propriety of a death verdict, and the reasonable doubt protection safeguards the voices of minority jurors in this coercive environment. There is ample empirical evidence that it not only ensures more thoughtful, but more respectful deliberation.”
Requiring a high burden of proof for imposing the death penalty, Batchelder added, “reduces the risk of killing someone who does not deserve to die.”
The court's decision, expected within 90 days, will come amid dwindling support for the death penalty in California.
While the death penalty barely escaped repeal efforts in 2012 and 2016, a recent poll by the UC Berkeley Institute of Governmental Studies and the Los Angeles Times found 44% of voters would vote to rescind the law in 2022, 35% would vote to keep it and 21% were undecided.
The death penalty fares better in the Pew Research Center’s nationwide poll released Wednesday, with 60% of 5,109 American adults surveyed supporting the death penalty as a punishment for murder, including 27% in strong favor. Roughly 39% are opposed to the death penalty, with 15% strongly opposed.
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