DAs seek state AG’s recusal in death penalty fight

State Attorney General Xavier Becerra has a conflict and should recuse himself from a federal case challenging the California's lethal injection protocol, three district attorneys argue.

The district attorneys, seeking to intervene in the federal case, alleged in a brief filed in the 9th U.S. Circuit Court of Appeals on Thursday that Becerra's decision to pursue an injunction against the injection protocol under the auspices of Gov. Gavin Newsom's recent executive order halting executions puts him in conflict with the citizens he represents. In re: Kermit Alexander et al. v. USDC-CASF, 19-70232 (9th Cir., filed Jan. 22, 2019).

"The governor's issuance of the order strengthens the district attorneys' position that the attorney general is not involved in the case to represent the interests of the people," states the brief, filed by the district attorneys of San Bernardino, Riverside and San Mateo counties. "Moreover, the order has created an actual and insurmountable conflict of interest for the attorney general as counsel in this case. In a situation where one of the attorney general's clients is ordering another to break the law, ethics would seem to dictate withdrawal of representation from one of those clients."

The case stems from the 1984 murder of two women and two young boys in South Central Los Angeles during a home invasion by members of the Crips gang. In 2006, attorneys John R. Grele and David A. Senior, representing one of the killers, petitioned the court for an injunction against the state's protocol for putting inmates to death.

They alleged the three-chemical injection violated his Eighth and Fourteenth Amendment rights to be free from cruel and unusual punishment. Morales v. Beard, 06-CV00219 (N.D. Cal., filed Jan. 13, 2016).

The attorneys declined comment for this story.

The federal stay has safeguarded most death row executions as the state has never introduced an alternative means of carrying out a death sentence. That changed in January 2018 when the corrections department issued a new lethal injection protocol.

District attorneys argued that that change, in conjunction with the 2016 passage of Proposition 66, the voter initiative endorsing the state's use of the death penalty, rendered the court's stay on execution orders obsolete. Their petition to intervene was denied by U.S. District Judge Richard G. Seeborg and is now before the 9th Circuit.

The attorney general's office said it was reviewing the district attorneys' arguments and couldn't comment.

But Becerra highlighted Newsom's March 13 executive order in a brief filed Thursday. He was responding to a writ petition filed by the Criminal Justice Legal Foundation on behalf of the victims' family asking the appellate court to vacate the district court's stay on executions.

In his brief, Becerra questioned the family's standing to seek to vacate the stay on executions.

He said their "interest in swifter executions is the same as any citizen's interest in proper application of the Constitution and laws,'" citing the U.S. Supreme Court decision in Hollingsworth v. Perry, 570 U.S. 693 (2013).

The brief argues that the governor's reprieve for all inmates coupled with the state's repeal of its old protocols render the petition moot.

"It's an interesting problem that the attorney general is in," said Kent S. Scheidegger, legal director of Criminal Justice Legal Foundation. "The governor has directed a violation of the law and the attorney general seems to be going at it full force."

Riverside County District Attorney Michael A. Hestrin said the governor's decision to call a moratorium on the death penalty and the attorney general's subsequent actions have galvanized the vast majority of elected district attorneys, and they're not backing down without a fight.

"We're certainly going to fight a governor who seems intent on overusing his pen," Hestrin said. "We're not governed by the whims of one person so we're going to push back though the courts and legal process and any way we can."

On Thursday, Los Angeles County Deputy District Attorneys Association President Michele A. Hanisee launched the first of a series of blog posts she hopes to roll out over the next few weeks highlighting the crimes committed by death row inmates who have exhausted their appeals.

In his news conference calling for a moratorium on the death penalty, Newsom said he was troubled by a National Academy of Sciences study that estimated one in 25 people on death row are innocent. Hanisee said she believes her series will not only prove that theory bunk but it would return the conversation to a case-by-case focus.

"When peoples' opinions change is when you have the facts of the cases," she continued. "Sometimes a murder can cross an invisible boundary that forces the average citizens to agree it's deserving of the ultimate punishment. [Newsom] can talk about statistics, but we're going to keep talking about the facts of these cases, because that's where the rubber meets the road for the average voter."

In her first post, Hanisee highlighted Mitchell Sims, one of the plaintiffs in the 9th Circuit case, who went on a killing rampage against Domino's pizza employees starting with his co-workers in South Carolina and ending in Southern California.

She also detailed an execution-style killing at a Bob's Big Boy in 1980.

"It's important when our politicians and voters are making decisions that they be educated decisions based on fact," Hanisee said. "My article, the one today in particular, is about the actual facts in these cases and what these people did as opposed to the ridiculous and unbelievable statistics Gavin Newsom mentioned when he granted reprieve."

Ignacio Hernandez, legislative advocate for California Attorneys for Criminal Justice, which supported the governor's decision, said he believes the immediate and aggressive pushback from prosecutors is misplaced.

"Prosecutors know first-hand that California's criminal justice system is broken," Hernandez wrote in an email. "They are either in denial or choosing to ignore the evidence."