Three California district attorneys are asking the U.S. Supreme Court to review a Ninth Circuit Court of Appeals ruling that denied their right to intervene in a lawsuit challenging the constitutionality of the state’s lethal injection protocol.
San Bernardino, Riverside, and San Mateo County DAs Jason Anderson, Michael A. Hestrin, and Stephen M. Wagstaffe petitioned the Court for a writ of certiorari late last month.
In 2018, a federal district court disqualified the district attorneys from intervening in a lawsuit filed by prisoners on California’s death row. The men challenged the state’s three-drug lethal injection protocol, arguing that it constituted cruel and unusual punishment. After Gov. Newsom put executions on hold in 2019, the plaintiffs and the state attorney general agreed to dismiss the litigation without prejudice since the question of the method was now moot. The district attorneys then attempted to intervene. After a federal judge denied their motion, they appealed to the Ninth Circuit, which found they had no standing in the litigation. A panel of the Ninth Circuit affirmed the lower court ruling in March.
So, the district attorneys are now turning to the Supreme Court.
“The first question is whether the Supreme Court will take this up. Ordinarily, such a convoluted and back-door attempt to advance a clear political agenda would be rejected. This is an attempt on the part of “intervening” district attorneys to undermine the established power of a governor and attorney general. But we are not in ordinary times. This Supreme Court has been going out of its way to establish the power of prosecutors (and governors they like) to enforce unjust laws,” says criminal defense lawyer and DPF board member Robert M. Sanger.
“This petition really has no basis. The hook they use is Penal Code section 3604.1, which was part of the hodgepodge that was Prop 66,” Sanger adds. “Their petition sounds like the offended DAs think they are empowered to roll up their sleeves and start injecting people themselves.”