3 D.A.s challenge Newsom’s policies on executions

As Gov. Gavin Newsom grapples with COVID19 and a possible recall election, and Attorney General Xavier Becerra prepares to head to Washington, three district attorneys are accusing both men of undermining the state’s death penalty law and want to intervene in a federal case, with the hopes of speeding up future executions.

And the American Civil Liberties Union wants a state court to tell the district attorneys to mind their own business.

The district attorneys, including San Mateo County’s Steve Wagstaffe, are trying to “usurp the role of the governor and the attorney general” in overseeing California’s laws, including its death penalty law, the ACLU said in a filing Friday with the First District Court of Appeal in San Francisco. The filing quoted a 1975 ruling by the state Supreme Court that said local prosecutors have the powers assigned to them by law, not “a roving commission to do justice” in cases they have already prosecuted.

But the district attorneys say Newsom and Becerra are the ones flouting the law. The prosecutors did not directly challenge Newsom’s March 2019 order halting executions in California — though one court filing questioned whether the governor “truly believed in the legality of his ‘moratorium’ ” — but said he and Becerra had abandoned their duty to defend the voterapproved death penalty law.

The governor and attorney general are colluding with lawyers for Death Row prisoners to “eviscerate the rule of law in California,” Wagstaffe, Michael Hestrin of Riverside County and Jason Anderson of San Bernardino County told the Ninth U.S. Circuit Court of Appeals, which is considering whether to allow the district attorneys to intervene in a longrunning lawsuit over the state’s execution procedures.

The district attorneys noted that Newsom not only declared a moratorium on executions but also shut down the death chamber at San Quentin and withdrew the state’s proposed procedures for lethal injections. They also said Becerra, whose office defends death sentences on appeal, has not fought the suit by the condemned inmates.

Becerra, meanwhile, is preparing to leave office if the U.S. Senate confirms his nomination by President Biden as Health and Human Services secretary. Newsom, who would appoint Becerra’s successor, is up for reelection next year but could be on the ballot sooner if Republicans collect enough signatures to put a recall vote on the ballot, energized by the governor’s appearance at a party in a Yountville restaurant last November, in violation of his own COVID19 guidelines.

The suit dates from 2006, when California last executed a prisoner, and was filed in federal court under the constitutional right to be free of cruel and unusual punishment. Federal judges have ruled since then that the state’s injection procedures, equipment and staff training created an undue risk of a prolonged and agonizing death.

Of the state’s 706 condemned inmates, at least 25 have lost all appeals of their convictions and sentences and would face execution if the procedures won judicial approval. Five of those inmates are from the three counties represented by the district attorneys, including Andrew “Jack” Sully, a former Millbrae police officer convicted of six murders related to drugs and prostitution in 1983, and Robert Fairbank, who tortured and fatally stabbed a San Francisco State University student in San Mateo in 1985.

After Newsom’s moratorium, inmates dismissed their suit but agreed with Becerra’s office that they could reinstate the case if the moratorium ended and would not face execution until the legal issues were resolved. That is the agreement the district attorneys want to undo.

They first sought to enter the federal court case in 2018 but were rejected by U.S. District Judge Richard Seeborg of San Francisco, who said it was up to the governor and attorney general, not local prosecutors, to represent the state on death penalty issues.

The prosecutors, who have sought execution dates in their cases, argue that they were given an expanded role in the legal process by Proposition 66, a 2016 ballot measure aimed at speeding up executions by changing court procedures and limiting appeals. Ninth Circuit Judge Laurence VanDyke appeared to agree, at least in part, at a hearing in September.

“It seems like Prop. 66 gave you the ability to prod them if you don’t think they’re moving,” VanDyke told a lawyer for the three district attorneys. He said there “seems to be a disconnect between what the (Newsom) administration wants and what the district attorneys want.”

But it wasn’t clear whether VanDyke and the other panel members, Judges William Fletcher and Danielle Hunsaker, intended to allow the prosecutors to intervene in the case. The ACLU, meanwhile, has told the state appeals court that California law bars the district attorneys from any role in the statewide case, under a 1975 state Supreme Court ruling.

“The Legislature has not authorized the D.A.s’ intervention in statewide civil rights litigation concerning the constitutionality of the manner of execution,” attorneys for the ACLU and civil rights groups told the court. “Only the attorney general is authorized to represent the interests of the state” in this case.