ACLU seeks to block DAs from lethal injection case

The American Civil Liberties Union is seeking to block three district attorneys who argue their interests aren't being represented by the California attorney general from intervening in a long-standing federal civil rights lawsuit brought by death row inmates against the state prisons department.

In a petition for a writ of mandate, the ACLU of Northern California and four community organizations argue Riverside County DA Michael Hestrin, San Mateo County DA Stephen Wagstaffe and San Bernardino County DA Jason Anderson are exceeding the scope of their statutory authority by trying to get involved in a case in which their request to intervene was previously denied.

The underlying case, which challenges the constitutionality of California's lethal injection protocol, was dismissed last year without prejudice in light of Gov. Gavin Newsom's moratorium against executions. Before the dismissal, however, the DAs had challenged U.S. District Judge Richard G. Seeborg's 2018 order to deny their motion to intervene in the 9th U.S. Circuit Court of Appeals. Kevin Cooper et al., v. Edmund G. Brown, et al., 18-16547.

Although that appeal is pending, the ACLU argued in court papers Friday that the state does not need to wait for that decision before barring the prosecutors' involvement in the case because state law makes clear that when private parties sue the state in federal court, the attorney general defends its interests, not county prosecutors.

The ACLU says allowing intervention would be the first time a court has permitted district attorneys to participate in a federal civil rights lawsuit between prisoners and state authorities, and that doing so would allow "other subordinate governmental entities" to interfere in lawsuits and usurp "the role of superior state entities."

"What the district attorneys of San Bernardino, Riverside and San Mateo are doing is a brazen overreach," said Emilou MacLean, a senior attorney with the ACLU of Northern California, in a statement that described the DAs as "rogue actors who seek to ignore the constitution and create their own rules."

Hestrin's and Anderson's spokespeople said Monday they have no comment on the ACLU's legal filing or MacLean's statement. But Wagstaffe said in an email he would accept whatever the court decides. He also brushed off MacLean's criticism, stating, "References like 'rogue actor' are for media attention, not a legal standard."

"The ACLU is well within its rights to seek to have us excluded from the lawsuit, just as we DAs seek to ask the federal courts to implement the law of California," Wagstaffe said. "We simply seek to have the will of the people as enacted in Proposition 66 upheld."

The prosecutors first tried to intervene in the lawsuit in 2018, more than a decade after it was filed by plaintiff Michael Morales ahead of his scheduled execution date in 2006. Morales, who was convicted in 1983 and sentenced to death for the rape, torture and murder of a 17-year-old girl, sued the California Department of Corrections and Rehabilitation arguing the state's former lethal injection protocol, which consisted of a three-drug cocktail, violated the Eighth Amendment's prohibition on cruel and unusual punishment.

Since Morales filed his complaint, nearly two dozen condemned prisoners have successfully intervened in the case and, like Morales, have had their executions stayed.

The prosecutors, however, argued in their 9th Circuit appeal that Seeborg twice erred when he denied their motion to intervene in 2018. First, they claimed that although the judge found the DAs had addressed an important interest in the case, they said the judge improperly ruled that interest was not theirs. Second, they argued Seeborg wrongly held that the attorney general's presence in the litigation is sufficient to ensure that if the prosecutors did have any interest, it is adequately represented.

They argued the court did not recognize the attorney general wears multiple hats in his official capacity and his interests in this case are representing state officials who are being sued, not ensuring justice is done for the plaintiffs' victims.

"The district court failed to account for the attorney general as an independently elected official with prosecutorial duties of his own, rather than merely serving as a counselor to the executive officers here," the district attorneys wrote in their appeal. "And since that former role is absent from the underlying litigation, the voice of the people who obtained the death judgments must be permitted to participate."

The ACLU argues the only way the DAs would have a chance of intervening in the case is with an express grant of authority from the Legislature, which the group says the prosecutors don't have.