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August 26, 2021

California Supreme Court turns back broad challenge to state capital procedures

As detailed in this Los Angeles Times article, headlined "California’s top court declines to overhaul death penalty," a broad challenge to death penalty procedures was rejected by the California Supreme Court today.  Here are the basics:

The California Supreme Court on Thursday decided to leave the state’s death penalty law intact, refusing an entreaty from Gov. Gavin Newsom that would have overturned scores of death sentences.

In a unanimous decision, the state’s highest court said there was little legal support under state law for overhauling the law, as opponents of capital punishment urged. In fact, the court said, some of the precedents cited by defense lawyers actually undercut their position.

Defense lawyers had argued the state’s capital punishment law was unconstitutional because it failed to require jurors to unanimously agree beyond a reasonable doubt on the reasons why a defendant should be sentenced to death instead of life without possibility of parole. A decision to impose the death penalty also should be made beyond a reasonable doubt, the standard now used in deciding guilt, the lawyers said.

If the court had agreed, hundreds — if not all — death sentences would have had to be overturned because such decisions generally apply retroactively.

Justice Goodwin Liu, who wrote the ruling, said some of the cases cited by defense attorneys did not support their position. “If anything,” he said, they suggested “the ultimate penalty determination is entirely within the discretion of the jury.” The court did not reject the constitutional arguments raised by Newsom but said they did “not bear directly on the specific state law questions before us.”

In a concurring opinion, Liu said there was enough U.S. Supreme Court precedent to warrant reconsidering California’s death penalty rules in future cases. He noted that some other states have changed their capital punishment requirements as a result of more recent Supreme Court rulings on the 6th Amendment, which protects the trial rights of the criminally accused....

John Mills, who represented two scholars of the state Constitution as friends of the court, said the ruling and Liu’s concurrence have provided a road map for future challenges that may be more likely to succeed. He predicted death row inmates will soon bring the kinds of claims that Liu said might be persuasive but were not at issue in McDaniel’s appeal. “He was laying out some concerns that were not presented by Mr. McDaniel about the operations of the California death penalty statute that he is concerned may violate the federal Constitution,” Mills said. “Those issues remain an open question in California because they were not litigated in this case.”...

California has more than 700 inmates on death row, but legal challenges have stymied executions. Only 13 inmates have been executed since 1992, and Newsom imposed a moratorium on executions during his time in office.

The full 111-page opinion from the California Supreme Court is available at this link.

August 26, 2021 at 10:55 PM | Permalink


Goodwin Liu being mean to Alito helped him not get a federal judgeship for life, but their loss was California's gain.

Posted by: Joe | Aug 26, 2021 11:16:28 PM

I hope Joe's simply being sarcastic or humorous there. Even if he had never criticized Alito--which criticisms were not only entirely justified on the merits, but also fully borne out by Alito's later track record--was there any realistic chance of his nomination succeeding at the time? If not that, surely Rs could have found some other comparable basis for their opposition. You know, like his haircut, or his fashion sense.

Posted by: kotodama | Aug 27, 2021 11:11:20 AM

I'm being sarcastic.

Like Dawn Johnsen (who now is in the OLC), a particular stupid thing was harped upon for Liu.

Posted by: Joe | Aug 27, 2021 11:23:03 AM

I figured, so thanks for confirming!

Posted by: kotodama | Aug 27, 2021 12:48:35 PM

I was thinking about this case and Liu more.

There are multiple ironies. For example, whereas Liu had Alito dead (no pun) to rights, the portrayal of him as some crazed liberal who's reflexively anti-DP was always pure caricature. As we all know, Obama just didn't pick them that liberal. Sotomayor is obviously on that end of the spectrum, although even she's had some conservative votes, like ones that were friendly to white collar defendants. Jane Kelly I'd say comes closest, but then she's toiling in the backwater of CA8.

Another example is this case itself. You have Liu, supposed bigtime lefty, voting to uphold the DP. Of course, yes, he also went on record to say he'd entertain a different kind of challenge later. (You have to appreciate him doing in that a concurrence to his own opinion, what a pro move there.) But still, this proves he won't just accept the first challenge that comes along.

I guess as a matter of appellate judging strategy, it might be savvy practice too. For one, he could be fairly confident his suggested approach has enough votes to garner a majority. And—perhaps this is cynical—if he turns down a challenge first before endorsing one later, then he can point to the former decision as proof that the latter one was based solely on the compelling nature of the legal theories.

The challengers must be in an interesting position right now. On the one hand, they got promising new legal arguments handed to them on a silver platter. On the other, they wasted time and effort on an unsuccessful challenge. I do wonder if they had considered those other arguments before and either rejected them or were unable to present them for some reason.

Posted by: kotodama | Aug 27, 2021 5:35:41 PM

I read a bit of his stuff (he wrote an interesting article on the history of federal support of education in the late 19th Century, for instance). I can't say I'm an expert. But, he does come off as a moderate liberal with some interesting thoughts. Which is fine with me.

Impressive work in the opinion -- long majority & another over twenty page concurrence, which flags one potential issue.

As to a general attack on the death penalty, that seems at this point a dubious enterprise in CA, especially after the people of the state (closely) rejecting a measure regarding just that. OTOH, actually executing people still doesn't seem to be a thing there.

People die on death row, just not by execution.

Posted by: Joe | Aug 27, 2021 11:06:26 PM

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