As we reported last week and Skyler Romero reports in today’s Daily Journal, San Bernardino’s District Attorney and the Association of Deputy District Attorneys for Los Angeles County have both filed motions in the Supreme Court to unseal records regarding Governor Gavin Newsom’s recent requests for permission to commute four prisoners’ life without parole sentences. The state constitution requires a governor to get an affirmative court recommendation before granting clemency to anyone who has been “twice convicted of a felony.”

If allowed by the court and then granted by the Governor, the commutations would make three of the prisoners eligible for otherwise unavailable parole suitability hearings and would make one prisoner — who was a minor when he committed murder and thus is entitled to a “youth offender parole hearing during [his] 25th year of incarceration” (Pen. Code, § 3051, subd. (b)(4)) — eligible for an earlier parole hearing. (Related: “Newsom grants clemency, but freedom isn’t certain”.)

Under the court’s policy announced in 2021, the motions to unseal should cause the clemency recommendation request records to be returned to Newsom with directions for him to show why at least some of the records should remain confidential. Once he has done that, the court is likely to make available to the public redacted versions of the records. (See herehere, and here.)

In an email to At The Lectern, Michele Hanisee — Association president and Los Angeles County Deputy District Attorney assigned to the Major Crimes Division — said that, once records are made available, the Association “will consider whether, how, and where we might helpfully opine on the propriety of issuing a recommendation favorable to any applicant for clemency.” She predicted, “Although the Court has not customarily received formal briefing in clemency matters (at least not recently), we are confident that the Court, having recognized ‘the public’s legitimate interest’ in the clemency process (Admin. Order 2021-05-26), would not deny the public a meaningful opportunity to address the legal questions the Court is tasked with resolving.” (Link added.)

Similarly, San Bernardino County Assistant District Attorney Robert Brown, who filed the District Attorney’s motions, emailed that, “since the Court has interpreted its role in the process as that of a ‘traditional judicial one . . .provid[ing] a check on [the] potential abuses of the power conferred on the executive,’ (Administrative Order 2018-03-28, Procedures for Considering Requests for Recommendations Concerning Applications for Pardon or Commutation (2018) 4 Cal.5th 897, 899) [see here], there is some implication that a briefing and argument process could evolve from the proceeding.” “The gravity of [the clemency] process cannot be overstated when addressing murderers,” he added.

Hanisee criticized the Governor’s handling of clemency records submitted to the court. She explained that the motions were necessary to “gain a fuller understanding of the facts relevant to the Governor’s contemplated action beyond the limited information he routinely chooses to publicly reveal in a single paragraph of a short letter addressed to the Court” and said that, “if the Governor were more committed to the principles of open-government, transparency, and accountability, he would have made any necessary redactions to the records . . . before submitting his . . . requests to the Court.”

Brown expressed his office’s “belief in open proceedings where the potential commutation of murderers is at stake . . . , particularly when the lasting impact on the families and friends of murder victims should be a part of any consideration.”