Roger Gitlin, a retired Del Norte County Supervisor, writes in the Del Norte Triplicate that voters should reject all four Supreme Court justices — and all nine First District Court of Appeal justices — on the ballot because “[e]ach candidate has been appointed by the latest two govenors [sic].” Without supporting evidence, he claims that “[m]any of the Newsom/ Brown judicial candidates practice identity politics on race, ethnicity, gender and sexual practice” and that “[e]ach judge is beholden to the Democrat [sic] machine.” He says that, “[b]y voting no, you shine a flashlight on Newsom‘s lack of credibility and abject dismissal of objectivity and actual knowledge of the law and adherence to the Oath each jurist takes.”

Gitlin further asserts: “Justices on the Court, today support Newsom’s Executive Order on the moratorium to suspend all executions during his term and the dismantling of the Condemned Unit facilities at San Quentin and Chowchilla. These jurists are in violation of their Oath to uphold the Law.” This is false.

First, there’s been no case before the Supreme Court challenging the moratorium, a challenge that would be futile in light of the Governor’s unqualified and exclusive constitutional reprieve power.

Within the scope of the authority that it does have, the court has kept the death penalty machinery running at full speed. The court rejected attempts to stop death penalty trials during the moratorium. (See here and here.) It has also continued to decide time-consuming automatic direct appeals of death sentences, including affirming well over 50 of those sentences since the moratorium.

In one of those affirmances, the court specifically held the moratorium had no effect on earlier rulings that delay in executing a condemned inmate doesn’t violate the Eighth Amendment and that the rarity of executions doesn’t result in arbitrary results. (People v. Krebs (2019) 8 Cal.5th 265, 351; see here.) In another one, the court rejected arguments, including by the Governor himself in an amicus brief (see here), that would likely have upended many, if not all, California death sentences. (People v. McDaniel (2021) 12 Cal.5th 97; see here.)

A two-justice concurring opinion in a death penalty affirmance criticized the state’s system of capital punishment. However, the authoring justice said that “I have voted to affirm scores of death judgments, and I will continue to do so when the law requires” and that “the judiciary will continue to do its duty under the law, leaving it to the voters and our elected representatives to decide whether California should double down on the current system or chart a new course.” (People v. Potts (2019) 6 Cal.5th 1012, 1067; see here.)

There’s nary a sign of support for the charge that any justices are “jurists are in violation of their Oath to uphold the Law.”

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