Death penalty trials have continued despite Newsom’s moratorium. The California Supreme Court could stop them

July 20, 2019 5 AM PT

The attorneys were about two weeks into choosing a jury in an upcoming triple-murder trial when they had to toss out the work they’d done and send the potential jurors home.

The California Supreme Court essentially froze the death penalty trial of Jade Douglas Harris, which was set to start this month, as it decides whether it will consider an argument by his defense attorney that he can’t get a fair trial in light of Gov. Gavin Newsom’s moratorium on executions in the state.

The court has until Aug. 30 to decide whether to take up a matter that could result in essentially blocking death penalty trials in California while the moratorium is in effect during Newsom’s term.

Public defenders representing Harris, who is accused in a shooting rampage that left three people dead and two others wounded, argue that jurors must believe that when they hand down a death sentence, it will be carried out.

Harris is charged with killing three people in Downey after responding to a Craigslist ad from a family selling their Chevy Camaro. He has pleaded not guilty.

The attorneys say a fair decision is impossible given that Newsom granted a reprieve to the more than 700 prisoners on death row and had the state’s execution chamber dismantled — with much fanfare in front of cameras.

“It’s just really impossible for a jury to go into a jury room and say, ‘We’re going to ignore that,’” said Robert Sanger, a defense attorney who first made this argument on behalf of a defendant in an unrelated capital case in Los Angeles County.

Sanger’s client is Cleamon Johnson, a gang leader known as “Big Evil” who is charged with five counts of murder in a case coming up for trial in January.

“The jury making that order has to really believe it, because if they don’t, they could be cavalier about it and just say: ‘Well, let’s send a message.… We know [the death sentence] is never going to happen, but let’s do it anyway,’” Sanger said.

Laurie Levenson, a professor at Loyola Law School, said there’s a real risk to the accused if that is the mindset of jurors.

“The question is likely to be: Is there any kind of instruction or precautionary steps that a trial judge can take to prevent that from occurring?” she said.

It’s hard to predict what the court will decide, Levenson said, but its stay in the Harris case signals that the state’s highest justices are taking his petition seriously.

“It’s not a frivolous issue,” she said.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said he was disappointed the court was seriously considering what he called a “meritless argument.”

“Newsom’s moratorium only lasts for the duration of his term as governor. Nobody sentenced today would be executed within the next seven years anyway,” said Scheidegger, whose organization backed a measure to speed up executions in California. “And everybody pretty much knows that.”

Prosecutors in Johnson’s case said in court papers that any of his concerns can be handled through appropriate jury instructions and during voir dire, when jurors are questioned before the trial to determine their fitness. They argued that concerns about fairness can also be assessed on appeal.

“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.

A Los Angeles County district attorney’s office spokeswoman said in a statement that the law hasn’t changed, and until it does, prosecutors will “continue to fairly evaluate all special circumstance cases and seek death against the worst of the worst offenders, including child murderers and serial killers.”

Newsom’s office did not respond to a request for comment Friday.

California has not had an execution since 2006. In March, Newsom issued his controversial moratorium on death row executions in the state, which has the largest death row in the nation.

“The law is the law, and this is crystal clear: The Constitution of the state of California provides the governor the ability to reprieve, the ability do this moratorium,” Newsom said at the time. “My ultimate goal is to end the death penalty in California.”

Critics said he was defying the will of voters who in 2016 approved Proposition 66, a statewide ballot measure to fast-track executions in California. During that same election, voters rejected a separate ballot measure — Proposition 62 — to abolish the death penalty, marking the second time since 2012 that Californians voted against repealing capital punishment.

Newsom had argued that the death penalty discriminates against people of color and defendants who are poor or mentally ill, a point that has been echoed by civil rights advocates.

The American Civil Liberties Union recently published a report that said all of the 22 people sentenced to death in L.A. County since Dist. Atty. Jackie Lacey took office in December 2012 are people of color.

This week, a group of more than 75 law professors and scholars called on Lacey to stop seeking death penalty sentences.