Arguing that “California’s capital punishment scheme is now, and always has been, infected by racism,” Governor Gavin Newsom today submitted to the Supreme Court an amicus curiae brief in support of a defendant’s automatic direct appeal.

In the appeal — People v. McDaniel — the court four months ago directed the Attorney General to respond to questions “raised in . . . appellant’s Opening Brief:  Do Penal Code section 1042 and article I, section 16 of the California Constitution require that the jury unanimously determine beyond a reasonable doubt factually disputed aggravating evidence and the ultimate penalty verdict?  If so, was appellant prejudiced by the trial court’s failure to so instruct the jury?”

In the past, the court has routinely summarily rejected defense arguments based on the unanimity issue.  (See here and here.)  The issue is clearly now being reevaluated.

A news release by the Governor’s office says this is “the first time in California history that a sitting governor has filed an amicus brief calling attention to the unfair and uneven application of the death penalty, noting the state’s bedrock responsibility to ensure equal justice under the law applies to all people no matter their race.”

Well, the brief hasn’t been filed yet.  The Chief Justice must give her permission first (rule 8.520(f)), which she most probably soon will.  Only the Attorney General need not ask permission to file an amicus brief, “unless the brief is submitted on behalf of another state officer or agency.”  (Rule 8.520(f)(8).)

The Chief Justice has already permitted the filing of three other amicus briefs in McDaniel.

Additionally, and besides the Governor’s submission, an amicus brief supporting the defendant was submitted today by six present or former district attorneys, including former Los Angeles District Attorney Gil Garcetti and former San Francisco District Attorney (and current candidate for Los Angeles District Attorney) George Gascón.


Bob Egelko in the San Francisco Chronicle:  “Newsom, California district attorneys seek tighter standards for application of death penalty

Supreme Court refuses to halt death penalty trials during moratorium on executions

Governor Newsom’s death penalty actions shouldn’t affect the Supreme Court . . . yet