The Supreme Court today unanimously affirms the death sentence in People v. Potts for the 1997 robbery and murder of an elderly Hanford couple.  The legal discussion of court’s opinion by Chief Justice Tani Cantil-Sakauye starts, “Defendant concedes that the evidence adduced at trial provides ‘an arguably satisfactory’ answer to the question of who killed the Jenkses.  Indeed.”  The court rejects various appellate arguments, including claims of instructional error, prosecutorial misconduct, and the improper excusing of seven prospective jurors based on their opposition to the death penalty.

Although signing the court’s opinion, Justice Goodwin Liu — joined by Justice Mariano-Florentino Cuéllar — writes a separate concurring opinion to criticize the state’s death penalty as “an expensive and dysfunctional system that does not deliver justice or closure in a timely manner, if at all.”  He says that Governor Gavin Newsom’s recent moratorium on executions “underscores” that “[a] death sentence in California has only a remote possibility of ever being carried out” and that “serious challenges” presented by the death penalty “have not been meaningfully addressed.”

Liu also has harsh words for Proposition 66, the 2016 ballot measure designed to speed up executions in California, an initiative the court mostly upheld.  The initiative “promised more than the system can deliver” and “did not enact or put to the voters the key reforms that leading authorities consider fundamental to a workable death penalty system,” Liu says.

The concurrence has a tone of resigned exasperation.  Liu says that he has “voted to affirm scores of death judgments, and . . . 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.”

Ben Shatz’s blog reports that Governor Newsom quickly issued a statement commending the concurring opinion.

[UpdateHere is Governor Newsom’s statement.

News coverage about the concurring opinion includes:

Los Angeles Times — 2 California Supreme Court justices say the state’s death penalty system doesn’t work

San Francisco Chronicle:  California Supreme Court justices question state’s death penalty

Associated Press — California justice calls death penalty system dysfunctional]