3 judges appointed by Democrats will hear California death penalty appeal

San Quentin Prison, home to California's death row. A federal judge's decision that found the state's death penalty system unconstitutional will be heard by an appeals court next week.

San Quentin Prison, home to California’s death row. A federal judge’s decision that found the state’s death penalty system unconstitutional will be heard by an appeals court next week.

(Eric Risberg/Associated Press)

The constitutionality of California’s death penalty system will be reviewed next week by a panel of three Democratic appointees on the U.S. 9th Circuit Court of Appeals.

Judges Susan P. Graber and Johnnie B. Rawlinson, Clinton appointees, and Paul J. Watford, an Obama appointee, were randomly assigned Monday to hear an appeal of a federal judge’s ruling that struck down the state’s death penalty law as unconstitutional.

Graber is a former Oregon Supreme Court justice. After joining the federal appeals court, she was once asked to recuse herself from a death penalty case out of Arizona because her father was killed in a carjacking nearly 40 years earlier.


One of the teenagers sentenced to death for her father’s killing later had his sentence overturned by the U.S. Supreme Court. Graber declined the recusal request in the Arizona case, which also involved a carjacking and killing.

Rawlinson is viewed as one of the most conservative Democratic appointees on the court. A former prosecutor from Las Vegas, Rawlinson was the only member of an 11-judge panel to vote to uphold a felony conviction of Barry Bonds, the former San Francisco Giants baseball player.

Watford, a former federal prosecutor, is viewed as a potential candidate for the U.S. Supreme Court if a seat opens up while President Obama is in office. He is generally described as a moderate.

The three are scheduled to hear arguments in Pasadena on Aug. 31 on last year’s death penalty ruling by U.S. District Judge Cormac J. Carney, appointed by former President George W. Bush.

Carney, based in Orange County, decided California’s system of capital punishment was so plagued by delays and uncertainty that it violated the constitution’s ban on cruel or unusual punishment.

Atty. Gen. Kamala D. Harris appealed the ruling to the 9th Circuit. The court has allotted each side 20 minutes for arguments.


UC Irvine Law School Dean Erwin Chemerinsky described the judges as moderates.

“No one can look at this panel and say it is a slam dunk based on who the judges are,” Chemerinsky said. “It is not the most conservative panel, and it is not the most liberal. It’s in the middle.”

Twitter: @mauradolan