Gov. Gavin Newsom alleges racial bias in opposing a death penalty case

A guard stands watch over the condemned prisoners housed in East Block at San Quentin State Prison.
A guard stands watch over the condemned prisoners housed in East Block at San Quentin State Prison.
(Mark Boster / Los Angeles Times)

Gov. Gavin Newsom on Monday threw his support behind the appeal of a man on death row convicted of murder, arguing in an amicus brief that “racial discrimination infects the administration of California’s death penalty.”

The decision to intervene in the death row case follows a promise by Newsom during his first term as governor that no prisoner in the state would be executed while he is in office, a pledge made when he imposed a moratorium on the death penalty.

“Since its inception, the American death penalty has been disproportionately applied, first, to enslaved Africans and African Americans, and, later to free Black people,” Newsom said in a statement Monday. “With this filing, we make clear that all Californians deserve the same right to a jury trial that is fair, and that it is a matter of life and death.”


Newsom’s detailed objections to capital punishment were filed in an amicus brief to the California Supreme Court, which is hearing the appeal of Don’te LaMont McDaniel, who is Black. McDaniel and a co-defendant were convicted in the 2004 killing of a rival gang member in Los Angeles and a woman who witnessed the attack.

Six current and former county district attorneys also filed a state Supreme Court brief in the case arguing that the death penalty was unfair and racially biased — a group including Dist. Attys. Chesa Boudin of San Francisco and Jeffrey Rosen of Santa Clara, along with former San Francisco Dist. Atty. George Gascón, who is challenging Los Angeles County Dist. Atty. Jackie Lacey in the November election.

Four of the prosecutors who filed the brief are members of the Prosecutors Alliance of California, a recently formed nonprofit committed to retooling California’s criminal justice system.

Executive Director Cristine Soto DeBerry said the briefs were filed after the state Supreme Court requested arguments regarding the constitutionality of California’s death penalty. DeBerry believes this is the first time a sitting governor, as well as current prosecutors, have joined in an argument before the California Supreme Court to end the death penalty.

“This is historic,” DeBerry said. “It provided an opportunity for those of us that have concerns about the death penalty to weigh in with them. So it’s much broader than Mr. McDaniel’s case. It’s about a broader concern with the death penalty.”

Newsom’s brief argues that the nation’s legacy of racial discrimination has led to significant disparities in capital punishment cases in California, swayed by the race of both the defendant and the victims. The legal filing cites a 2005 Santa Clara University Law Review study that concluded those who are convicted of killing white people were more likely to be sentenced to death than people convicted of killing Black and Latino people.

The brief also argues that people of color are improperly excluded from juries because they in many cases have different views and experiences with the court system and police when compared to jurors who are white, and are also less likely to support death sentences.

The governor’s brief to the state Supreme Court was filed by law professor Elisabeth Semel of the UC Berkeley School of Law Death Penalty Clinic and Erwin Chemerinsky, dean of UC Berkeley School of Law.

In response to a question posed by the state Supreme Court about jury deliberations in the McDaniel case, Newsom’s brief advocates for requiring death penalty verdicts to be unanimous, and calls for instructing jurors to apply a reasonable doubt standard in capital cases. That same high standard for juror decisions also should apply to each individual aggravating circumstance presented by prosecutors seeking the death penalty, such as allegations of prior criminal acts, the brief said.

“Race is such a pernicious influence in the way the death penalty is administered in California,” Semel said Monday. “We need certain safeguards that we know help reduce the influence of racial discrimination and ... determining verdicts beyond a reasonable doubt and unanimously demonstrably reduce the influence of racial discrimination.”


Atty. Gen. Xavier Becerra, in a filing with the court in August, urged the state Supreme Court to adhere to prior legal precedent in the McDaniel case.

“The penalty-phase requirements that McDaniel favors could be feasible policy reforms for the voters to consider; indeed, a few States have adopted similar requirements. As this Court has repeatedly recognized, however, they are not required by state or federal law,” the attorney general said in the court filing. “The Court should adhere to that legal position — on which the lower courts have relied for decades — and leave it to the electorate to amend the death penalty law if they see fit.”

McDaniel and his and his co-defendant, Kai Harris, were accused of entering an apartment in the Nickerson Gardens public housing project in April 2004, looking to settle a drug dispute. They were both sentenced to death after being convicted in the shooting deaths of 33-year-old George Brooks and Brooks’ 52-year-old cousin Annette Anderson. Two other women in the apartment were also shot but survived. One of them, Debra Johnson, later testified against the men.

Los Angeles County Superior Court Judge Michael Johnson called the crime “cruel and inhuman.”

Officials with the Los Angles County district attorney’s office were not available for comment. Lacey remains supportive of the death penalty, though she often says her office only seeks capital punishment in the most extreme cases involving torture or the killing of a child. That stance has become an issue as she seeks a third term in office and tries to fend off a challenge from Gascón, who has positioned himself as a criminal justice reformer while casting Lacey as out of touch with modern approaches to prosecution.

If elected, Gascón has promised he will direct prosecutors to stop seeking the death penalty in California and will work to have defendants previously sent to death row from L.A. County be resentenced to life without parole.

Times staff writer James Queally contributed to this report.