California Supreme Court to Consider Petition to Halt Capital Prosecutions

Calling Governor Gavin Newsom​’s mora­to­ri­um on exe­cu­tions a ​“par­a­digm shift” in the death-penal­ty land­scape, a defen­dant fac­ing the death penal­ty in Los Angeles has peti­tioned the California Supreme Court to halt cap­i­tal pros­e­cu­tions in the state. On July 1, 2019, lawyers for Cleamon Johnson—whose death penal­ty tri­al is sched­uled to begin in January 2020 — have filed a pre­tri­al peti­tion for review, argu­ing that cap­i­tal juries ​“can­not be expect­ed to pro­vide a fair and rea­soned penal­ty-phase deter­mi­na­tion free from spec­u­la­tion” about whether a death sen­tence would ever be carried out.

The peti­tion is based on the 1985 U.S. Supreme Court deci­sion in Caldwell v. Mississippi, which held that ​“It is con­sti­tu­tion­al­ly imper­mis­si­ble to rest a death sen­tence on a deter­mi­na­tion made by a sen­tencer who has been led to believe that the respon­si­bil­i­ty for deter­min­ing the appro­pri­ate­ness of the defen­dan­t’s death rests else­where.” It argues that because of the mora­to­ri­um, jurors will ​“be unable to assume a death sen­tence will result in an exe­cu­tion and be unable to com­pre­hend ful­ly the grav­i­ty of their deci­sion.” This, it argues, cre­ates a con­sti­tu­tion­al­ly unac­cept­able risk that jurors might impose a death sen­tence mere­ly to ​“send a mes­sage,” del­e­gat­ing to the courts the ulti­mate respon­si­bil­i­ty for whether a defen­dant should live or be con­demned to die. 

Robert Sanger, Johnson’s lead defense attor­ney, said the deci­sion is impor­tant not only for Johnson but for oth­er defen­dants fac­ing poten­tial death-penal­ty charges. ​“If the courts don’t take a seri­ous look at it before we have a whole slew of addi­tion­al tri­als,” he told the Sacramento Bee, ​“we’re not only going to spend a whole lot of mon­ey now, they may have to be redone.” Prosecutors filed their response to the peti­tion on July 16, argu­ing that stan­dard jury instruc­tions are ade­quate to address Johnson’s con­cerns. ​“Jurors are rou­tine­ly asked to set aside these types of things in order to reach a just ver­dict based on the evi­dence and the law,” pros­e­cu­tors wrote. ​“The real goal of this peti­tion is to turn Governor Newsom’s mora­to­ri­um, which is nom­i­nal­ly a ​‘reprieve,’ into a judi­cial abo­li­tion of the death penal­ty in California.”

Johnson’s lawyers are seek­ing expe­dit­ed review of the peti­tion, to avoid any prej­u­dice that could result if his case went to tri­al before the issue is resolved. ​“This impor­tant issue of law should be decid­ed now,” they wrote. ​“Otherwise, this case will pro­ceed to tri­al with the time-con­sum­ing and expen­sive task of death qual­i­fy­ing the jury. This not only wastes gov­ern­ment resources and those of all of the par­tic­i­pants, but it con­sumes a tremen­dous amount of time for prospec­tive jurors.” The peti­tion argues that empan­el­ing a jury before the court decides this issue would be espe­cial­ly prej­u­di­cial to Johnson and oth­er cap­i­tal defen­dants because of the unique ​“death-qual­i­fi­ca­tion” process for select­ing death-penal­ty juries, which excludes jurors from ser­vice unless they swear under oath that they are will­ing to impose a death sen­tence. Johnson’s peti­tion con­tends that ​“death-qual­i­fi­ca­tion, if it is not nec­es­sary, vio­lates equal pro­tec­tion in that it elim­i­nates a dis­pro­por­tion­ate num­ber of women and African Americans. It also vio­lates due process in that it skews a jury in the guilt and inno­cence phase in favor of con­vic­tion, and against due process itself, as well as women, racial minori­ties, gays, the elder­ly, and the physically disabled.” 

San Mateo District Attorney Steve Wagstaffe, a for­mer head of the California District Attorneys Association, said the issue is ​“a smart point for them to bring up.” However, he said, ​“we think the answer is one that has been dealt with before.” 

Although California has not had an exe­cu­tion since 2006, it has the largest death row in the United States and has imposed more death sen­tences than any oth­er state in four of the last five years. The high num­ber of death sen­tences has been dri­ven large­ly by five south­ern California coun­ties, includ­ing Los Angeles County, where Johnson is being tried. A recent study by the ACLU showed that, like Johnson, all 22 peo­ple sen­tenced to death in Los Angeles under the admin­is­tra­tion of the cur­rent District Attorney have been peo­ple of color.