Attorneys appealing the conviction of a Los Angeles double murderer argued Wednesday before the California Supreme Court that the state’s application of capital punishment is uneven and unconstitutional, possibly paving the way for the reversal of hundreds of death sentences.
Justices heard the automatic appeal of Don’te Lamont McDaniel for the death sentence he received for the 2004 shootings of rival gang member George Brooks, 33, in a drug dispute and Annette Anderson, 52, who witnessed the killing in the Nickerson Gardens housing project in Watts. A co-defendant, Kai Harris, has filed a separate appeal that is pending.
Several powerful political allies, including Gov. Gavin Newsom and several progressive prosecutors across the state, are supporting McDaniel’s effort to set aside his death penalty verdict.
Newsom: ‘Infected by racism’
Newsom filed a 177-page amicus brief in October 2020 arguing the sentence for 41-year-old McDaniel, who is Black and has been on death row since 2009, should be overturned due to racial bias in jury deliberations and sentencing decisions. The filing marks the first time in California history that a sitting governor has filed a friend-of the-court brief to draw attention to what Newsom describes as the “unfair and uneven application of the death penalty.”
Newsom, who has placed a moratorium on executions in California, argues in the brief that capital cases should require unanimity in the jury’s penalty verdict and proof beyond a reasonable doubt of disputed aggravating evidence.
“California’s capital punishment scheme is now, and always has been, infected by racism,” the brief says. “Today’s inequities in the imposition of death sentences are the result of the nation’s and the state’s history of racial terror and subjugation.”
California voters have affirmed their support of capital punishment at the polls in 1978, 2012 and 2016. Currently, 703 inmates are incarcerated on death row in California, which last executed a condemned prisoner in 2006.
Prosecutors favor appeal
An amicus brief arguing death sentences are arbitrarily imposed was filed in support of McDaniel’s appeal by five district attorneys: Diana Bectin of Contra Costa County; Chesa Boudin, San Francisco County; George Gascón, Los Angeles County; Jefferey Rosen, Santa Clara County; and Tori Verber Salazar, San Joaquin County. Former Los Angeles County District Attorney Gil Garcetti also signed the brief.
“The death penalty does not make us safer, there’s a serious risk of executing an innocent person, it costs about $300 million per execution, and it’s being arbitrarily applied in violation of the Constitution,” Gascón said in a statement last year. “With 22 of 23 individuals condemned to death in Los Angeles since 2012 having been people of color, the court need not look further than L.A. County for proof that the death penalty is applied arbitrarily. Such disparate application is the hallmark of an unjust legal system, and I implore the California Supreme Court to end the arbitrary application of the death penalty.”
Boudin, whose parents were Weather Underground activists sentenced to prison in the 1980s, said he has long opposed the “undeniably cruel and unjust practice” of capital punishment.
“The death penalty’s application in California affronts the Constitution’s protections and principles,” he added. “California’s death penalty is not only inconsistent with the values of a humane society, but is administered in a racially biased way that imposes the death penalty disproportionately in cases where the victims were white or where the defendants were Black or Latinx.”
Reasonable-doubt jury instruction
During Wednesday’s hearing, Supreme Court Associate Justice Goodwin Liu questioned Elias Batchelder, senior deputy for the state Public Defender’s Office, whether there have been many cases in California where there has been a reversible error due to the omission of a reasonable-doubt instruction to juries considering whether to impose the death penalty.
“There have been no reversals of sentences based on the idea of that the reasonable-doubt instruction was not provided,” Batchelder replied. “Imposing a high burden of proof protecting the defendant has never, ever been seen to interfere with a jury’s power.”
Supervising Deputy Attorney General Dana Muhammad Ali told the justices the Supreme Court has never held that the state Constitution and Penal Code require jurors during the penalty phase to receive burden-of-proof instructions or agree unanimously on aggravating factors already decided upon previously during a trial’s guilt phase.
“The types of factual assessments that are made at the penalty phase are really foundational facts,” she said. “Jurors are not even at the guilt phase required to unanimously agree that these foundational facts are true or have been proven before they can turn around and convict the defendant of the ultimate crime.”
McDaniel’s hearing comes on the heels of Newsom’s executive order issued Friday, May 28, calling for an independent investigation into the case of Kevin Cooper, a Black death row inmate convicted in the 1983 slaying of three members of a Chino Hills family and one of their friends.
Like McDaniel, Cooper has maintained his innocence.
Impact remains to be seen
The potential impact to other capital cases remains to be seen if McDaniel’s sentence is reversed, said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports the death penalty.
“What should happen is that the court will respect over a century of precedent and reject once again an outlandish claim that it has rejected dozens of times before,” Scheidegger said in an email. “If the court goes the wrong way on this case, it will be up to the court to decide which cases it will apply retroactively to.
“California law on retroactivity is much less structured than federal, and there is no sure way to predict the result,” he continued. “A wrong decision could apply retroactively to all cases, only to those pending on the initial appeal, or none other than the present case. We would have to wait and see.”
The Supreme Court is expected to render a decision on McDaniel’s appeal within 90 days.
Source: Orange County Register
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