DAs Accused of Illegally Interfering in California Death Penalty Litigation

Civil rights and community organizations say local prosecutors lack authority under state law to intervene in litigation challenging California’s lethal injection protocols.

(AP Photo/Eric Risberg, File)

SAN FRANCISCO (CN) — The American Civil Liberties Union and other groups asked a California appeals court Friday to block three district attorneys from intervening in a federal lawsuit to undo an agreement related to a statewide freeze on executions.

District attorneys from San Bernardino, San Mateo and Riverside counties sought to intervene in a federal lawsuit challenging California’s lethal injection protocols in 2018. A federal judge denied their request that same year, finding they failed to establish separate interests not adequately represented by the California Attorney General’s Office. An appeal over that decision is pending in the Ninth Circuit.

That appeal will only address whether the local prosecutors satisfied the federal standard for intervening in litigation. It will not decide if state law permits district attorneys to intervene in a civil lawsuit over state polices.

The ACLU of Northern California and its co-petitioners say only the California attorney general is authorized to defend the state’s interests in civil litigation. They argue local prosecutors cannot intervene in such matters without “an express grant of authority” from the California Legislature.

“If the DAs are permitted to intervene here, other subordinate governmental entities will be able to interfere in lawsuits, usurping the role of superior state entities, to take positions in opposition to those entities despite the absence of any legislative mandate to do so,” the groups argue in their petition.

There are currently 706 inmates on death row in California, including 683 male inmates and 23 female inmates.

In March 2019, California Governor Gavin Newsom enacted a moratorium on executions, citing his belief that capital punishment is morally wrong. In August last year, the state reached an agreement with death row inmates to dismiss the case without prejudice while the moratorium on executions stays in place.

In their motions to intervene, each district attorney cited their interests in ensuring capital punishment is carried out for criminals sentenced to death in their counties.

The San Bernardino District Attorney’s Office argued it has an interest in ensuring Kevin Cooper is executed for the 1983 murder of the Ryen family. The DA’s office called it a “brutal hatchet murder” in which  mother, father, 10-year-old girl and 11-year-old boy from a neighboring home were slaughtered. The family’s 8-year-old son had his throat slashed but survived.

Cooper was convicted in 1985, but recent DNA test results show an unknown person was present at the crime scene and witnesses have come forward to say another suspect had bragged about killing the family. Cooper has maintained his innocence for more than three decades.

The motion to intervene was filed when Michael Ramos led the San Bernardino District Attorney’s Office from 2002 to 2019. He lost an election to the county’s current DA, Jason Anderson, in 2018.

In 2019, Anderson said he was disappointed in Governor Newsom’s decision to require more DNA testing in the Kevin Cooper case, saying “it seems the victims’ desire for justice in this case matters less and less.”

Riverside County District Attorney Michael Hestrin, who has been in office since 2015, also sought to intervene in the lawsuit. He argued his office has an interest in ensuring that Albert Greenwood Brown is executed for the 1980 rape and murder of a 15-year-old girl. Brown was scheduled to be executed in September 2010, but a federal judge stayed the execution due to concerns that the lethal injection procedure might subject him to an agonizing death.

Hestrin also cited the case of Ronald Lee Deere, a man convicted of the 1982 murder of a father and his two daughters, ages 2 and 7. The state currently has 92 inmates on death row who were convicted of capital crimes in Riverside County.

San Mateo County District Attorney Steve Wagstaffe, who has served as DA since 2011, insisted his office has an interest in ensuring executions are carried out for Robert Green Fairbank Jr., convicted of the 1985 rape and murder of a female college student, and Anthony John Sully, convicted of murdering five women and one man during a six-month “killing spree” in 1983.

Notwithstanding the debate over local prosecutors’ interest in the outcome of litigation over lethal injection protocols, the ACLU and its co-petitioners say their interference in the lawsuit violates state law.

“These DAs are rogue actors who seek to ignore the Constitution and create their own rules,” ACLU of Northern California attorney Emi MacLean said in a statement Friday. “Their lawlessness cannot stand.”

The petition for a writ of mandate was filed with the First Appellate District in San Francisco. Groups joining the ACLU in the petition include Congregations Organized for Prophetic Engagement, Riverside All of Us Or None, Starting Over Inc., and Silicon Valley De-Bug.

Riverside DA spokesman John Hall declined to comment. The San Bernardino and San Mateo DA offices did not immediately return emails and phone calls requesting comment Friday.

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