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Capitol Alert

California’s execution pause hasn’t stopped new capital cases. The Supreme Court could change that


Gov. Gavin Newsom’s death penalty moratorium hasn’t stopped district attorneys from pursuing capital punishment in California, but the state Supreme Court is considering a case that could change that.

Newsom suspended the state’s death penalty in March, granting temporary reprieves for California’s 737 death row inmates, shuttering the execution chamber in San Quentin State Prison and withdrawing the state’s lethal injection protocol.

His executive order only halts the death penalty while he is governor. In the meantime, district attorneys across the state have continued to pursue capital charges against defendants.

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Lawyers for a man facing five capital murder charges say that should stop. They are appealing to the state Supreme Court to block capital murder trials while Newsom’s moratorium is in effect.

In a petition filed with the court earlier this month, lawyers for Cleamon Johnson argue jurors cannot fairly decide whether to put someone to death while the moratorium is in place. To return a fair decision, the lawyers argue, jurors have to believe their choice could result in the defendant being put to death.

Under Newsom’s order, the 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,” they argue.

“In light of this paradigm shift, a California jury in a capital case cannot be expected to provide a fair and reasoned penalty-phase determination,” the lawyers wrote.

Johnson’s lawyers filed the petition with the Supreme Court on July 1 after an appeals court judge dismissed the argument. The next day, the Supreme Court asked prosecutors to respond. The Supreme Court also halted a separate death penalty case after lawyers in that case made a similar argument.

Those actions indicate the court is taking the argument seriously, said Robert Sanger, one of Johnson’s lawyers.

David Ettinger, who closely watches the court as an appellate lawyer at Horvitz & Levy law firm, said although it could be significant that the court didn’t dismiss the argument off the bat, it’s too soon to say if the justices will rule on the merits of the argument. There’s also no way to know whether the court will side with Johnson if it does engage the issue.

San Mateo District Attorney Steve Wagstaffe said he anticipates the Supreme Court will ultimately weigh in on the case, which he welcomes because it will give him and his colleagues clarity on how to handle death penalty-eligible cases.

Wagstaffe, former president of the California District Attorneys Association, said he and other California DAs believe the court will rule against the argument. It’s already standard to tell juries they must assume the sentence they return will be carried out, even though they know a governor can reverse their decision through his clemency powers, he said.

“Its a smart point for them to bring up,” Wagstaffe said of Johnson’s lawyers. “But we think that answer is one that has been dealt with before.”

In their response filed Tuesday, prosecutors argued that concerns about the moratorium can be handled during jury selection and that it shouldn’t spare Johnson from facing the death penalty.

“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.”

If the Supreme Court rules in Johnson’s favor, it could effectively ban death penalty trials in the state, said Sanger, whose client is accused of killing five people in Los Angeles in the 90s.

That would be a significant impact of Newsom’s executive order, which didn’t alter the status quo when he signed it in March. By then, California had not executed anyone for more than a decade, although Newsom argued executions could soon resume.

Newsom said he could not ethically sign off on any executions while in office, despite commitments he made in 2016 that he would uphold the will of the voters, who reaffirmed their support for the policy that year.


Newsom also stressed the possibility that the state could kill innocent people if it resumes executions.

“I can’t sign my name to that,” Newsom said. “I wouldn’t be able to sleep at night.”

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