The “paradigm shift” in California’s death penalty

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Death penalty lawyer and DPF board member Robert M. Sanger believes that the moratorium Gov. Gavin Newsom announced in March created “a paradigm shift in the reality of California’s death penalty.” And the result is that “a California jury in a capital case cannot be expected to provide a fair and reasoned penalty-phase determination free from speculation.”

The California Supreme Court thinks his argument might be worth considering.

Sanger is representing Cleamon Johnson, who is facing five capital counts in Los Angeles Superior Court. He and Sarah Sanger, an associate in his law firm, filed a motion with the court, arguing that “The death penalty process involves an impossibility.” He cited a U.S. Supreme Court case, Caldwell v. Mississippi (1985), and California Supreme Court case, People v. Ramos (1997), in which the courts said juries in capital cases must believe that their votes mean actual life or death. Otherwise, there is a risk that they will vote for death believing they’re really just sending a strong punitive message since the death sentence will be overturned on appeal, or commuted by the governor.

“That counterfactual instruction has been increasingly impossible to follow,” Sanger argued. 
”With no executions since 2006 and, now, Newsom’s moratorium, it is absolutely impossible that at least some of the 12 jurors in a given trial will not know such an instruction is not only false but ridiculous.”

Therefore, “A death verdict that complies with Caldwell and Ramos is now impossible and juries should not be death-qualified to hear a trial that is systemically incapable of rendering a death verdict.”

The trial judge denied Sanger’s motion, and the Court of Appeal denied his Petition for Writ, but the California Supreme Court last week issued a request for briefing to the Los Angeles District Attorney’s office. The letter instructs the DA’s office to “address all issues raised in the petition for review,” on or before July 22. Sanger will then have 10 days to reply to the prosecutors’ answer, and the Court will issue its ruling no later than August 30.

“This tends to indicate that at least some members of the Supreme Court are thinking this could be the end of capital trials while the death penalty is in question in this state,” Sanger said.

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