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May 12, 2011

California DA files suit hoping to undo controversial clemency grant

As detailed in this local piece, headlined "D.A. seeks to overturn reduced sentence of Esteban Nuñez in fatal stabbing," a county prosecutor is trying to break new lega ground by suing over a controversial clemency grant. Here are the details:

The San Diego County district attorney has filed a civil suit aimed at overturning former Gov. Arnold Schwarzenegger’s last-minute reduction of the prison sentence of the son of former Assembly Speaker Fabian Nuñez in the slaying of a college student.

On his last day in office, the governor reduced the sentence of Esteban Nuñez from 16 years to seven years.  The decision was made without consulting with prosecutors in the case -- angering Dist. Atty. Bonnie Dumanis and the family of the victim, Luis Santos.

In the civil suit, announced Wednesday, Dumanis argues that Schwarzenegger had a legal obligation to notify prosecutors and the families of the victims.  Santos was killed in a late-night street brawl outside San Diego State.  Nuñez pleaded guilty in 2010 to voluntary manslaughter and assault with a deadly weapon.

The suit is considered the first of its kind, Dumanis said....  The lawsuit names the governor, Nuñez, the director of the state Department of Corrections and Rehabilitation and the warden of Mule Creek State Prison, where Nuñez is serving his time.

Dumanis said Marsy’s Law, meant to protect the rights of crime victims, requires a governor to notify prosecutors and family members.  The civil suit could face a difficult legal precedent: that the right of governors to grant pardons and sentence reductions has been considered unlimited and not subject to review.

The governor, Dumanis said, is given that power to help correct miscarriages of justice. “Instead, this last-minute commutation made without all the facts or input from the parties only fueled the public mistrust of government and greatly diminished justice,” Dumanis said.

Though this novel lawsuit is seeking to undo a clemency decision that helped a criminal defendant, I suspect some defendants and their attorneys might like to see a ruling here that courts have authority to review and second-guess executive clemency decisions.  After all, the vast majority of such executive decisions involve the denial of clemency; I am sure defendants and their attorneys who believe clemency was justified in certain cases would welcome any means or opportunity to challenge clemency denials in court.

May 12, 2011 at 09:52 AM | Permalink


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Depending on exactly what the California constitution says about such grants I don't think the courts are going to touch this with a ten foot pole. Certainly if Congress were to try and put some sort of pre-grant notification requirement upon the President I don't think the federal courts would countenance that. I know many states have limited their governor's clemency powers but I am given to understand California is not one of them.

Posted by: Soronel Haetir | May 12, 2011 10:48:34 AM

"Subject to application procedures provided by statute, the Governor, on conditions the Governor deems proper, may grant a reprieve, pardon, and commutation, after sentence, except in case of impeachment. The Governor shall report to the Legislature each reprieve, pardon, and commutation granted, stating the pertinent facts and the reasons for granting it. The Governor may not grant a pardon or commutation to a person twice convicted of a felony except on recommendation of the Supreme Court, 4 judges concurring."

The argument that the Governator did not follow the procedures is a substantial one. However, I am skeptical that the courts will actually undo the clemency grant even if they find a violation. The misuse of the clemency power in this case as a favor for a political buddy is an outrage, but I expect that the courts will find a way not to open this can of worms.

Posted by: Kent Scheidegger | May 12, 2011 12:14:20 PM

What Kent said. The remedy for perceived abuse of the clemency power is to remove the offender from office. Once the courts start second-guessing clemency grants, the power of clemency is seriously eroded, and a possible separation of powers problem created.

Posted by: SRS | May 12, 2011 12:39:41 PM

I can understand the prosecutor's frustration, but the suit is a non-starter, for the reasons Kent and SRS state. No matter what procedures are statutorily required, the sovereign's plenary right to grant or withhold clemency is so firmly rooted in history and common law that the courts should be, and I predict are going to be, unwilling to touch it.

The pardon here was a scandal, but it's the hard case that should not wind up making bad law. In a system of separated powers, there are some things courts simply do not get to decide.

Posted by: Bill Otis | May 12, 2011 1:17:47 PM

I feel like I should mark this down on the calendar as the Day I Agreed with Kent and Bill Otis. It does happen, I guess!

Posted by: SRS | May 12, 2011 4:35:31 PM

I have marked my calendar as well.

Posted by: Michael Drake | May 13, 2011 4:50:55 PM

Unfortunately, this suit fails for numerous reason: see the article on www.sandiegonewsroom.com

Posted by: David | May 15, 2011 3:57:02 PM

Also keep in mind that this same San Diego District Attorney is expecting to run for Mayor (as a Republican) in the next mayoral race for what it's worth.

Posted by: james | May 15, 2011 10:15:19 PM

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