Saturday, May 27, 2023 | Back issues
Courthouse News Service Courthouse News Service

Ninth Circuit denies bid by California DAs to challenge death penalty moratorium

District attorneys from three counties in California did not have the authority to challenge a moratorium on the death penalty enacted by Governor Gavin Newsom in 2019.

(CN) — In a divided opinion, a Ninth Circuit panel upheld a lower court decision that prevented a group of district attorneys from intervening in a case where Governor Gavin Newsom stayed all executions in the state of California via executive order. 

“The district attorneys have no authority to choose the method by which California will execute condemned inmates,” U.S. Circuit Judge William Fletcher, a Bill Clinton appointee, wrote for the majority. “California law does not authorize the district attorneys to defend the state against constitutional challenges to execution protocols."

U.S. Circuit Judge Lawrence VanDyke dissented, saying the district attorneys are trying to uphold California law. 

“The district attorneys would uphold and seek to help enforce Proposition 66 to retain the death penalty — on which a majority of the voters of California voted “Yes” — while the attorney general must defend the governor’s contrary executive order instituting a moratorium on death penalty executions,” the Donald Trump appointee wrote. 

Fellow Trump appointee U.S. Circuit Judge Danielle Forrest dissented from the majority opinion regarding mootness.

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.

In March 2019, California Governor Gavin Newsom enacted a moratorium on executions, citing his belief that capital punishment is morally wrong. In August 2020, 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.

This comes after a California state court refused to consider the ALCU’s claim that California law bars local district attorneys from taking part in a legal dispute about execution procedures in cases they prosecuted. But Thursday's ruling upheld a previous decision that held the district attorneys in question did not have the authority to challenge Newsom’s moratorium. 

“The district attorneys point to no legislative authorization granting them the authority to represent the state’s interest in this case,” Fletcher wrote. 

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

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 daughter and an 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 this past March. “Their lawlessness cannot stand.”

Groups joining the ACLU in its First Appellate District petition include Congregations Organized for Prophetic Engagement, Riverside All of Us Or None, Starting Over Inc., and Silicon Valley De-Bug.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.