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.
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