Alumni, Faculty Play Key Role in California Death Penalty Challenge

Alumni and faculty are playing a significant role in a case being argued June 2 at the California Supreme Court that could find the state’s death penalty statute unconstitutional.

Supervising Deputy State Public Defender Elias Batchelder (’06) identified the key legal issues in the case and will argue on behalf of Don’te Lamont McDaniel. Adjunct Professor John Mills is arguing in support on behalf of California constitutional scholars, including Professor Hadar Aviram. Professor Rory Little weighed on McDaniel’s side as well, joining in with law professors from around the country to file an amicus brief.

Batchelder said he identified the key legal argument in his appeal of McDaniel’s 2008 murder conviction and death sentence while combing through the penal code. Section 1042 of the code first adopted in 1872 says that issues of fact “shall be tried in the manner provided in Article I, section 16” of the California Constitution, the article enshrining the state jury right. Yet despite reasonable doubt universally applying to criminal trials, and despite other states requiring that the penalty determination be made beyond a reasonable doubt, the modern California death penalty scheme has lacked this protection.

In June 2020, the court asked for a supplemental briefing on the issue Batchelder detailed in his 2015 opening brief: “Do Penal Code section 1042 and article I, section 16 of the California Constitution require that the jury unanimously determine beyond a reasonable doubt factually disputed aggravating evidence and the ultimate penalty verdict? If so, was appellant prejudiced by the trial court’s failure to so instruct the jury?”

The court’s request sent Batchelder into overdrive, researching and writing and coordinating amicus briefs. Meanwhile, he struggled to get the news to McDaniel at San Quentin State Prison, where the coronavirus was then raging.

Mills’ amicus brief focuses on the history of the jury trial in California going back to Gold Rush days. He argues that the court’s modern precedents should be overturned to ensure that capital defendants receive the same jury rights during the penalty phase of the trial as they do during the guilt phase.

“At bottom,” Mills said, “the case is about reliability in assigning the most profound penalty under law. What does the law require jurors to do if there’s reasonable doubt? It’s clear there should be a thumb on the scale for life.”

Other amicus briefs draw attention to larger problems with the application of the death penalty in California. A brief by six current and former prosecutors argues that the death penalty is arbitrarily imposed. Gov. Gavin Newsom, who imposed a moratorium on executions in 2019, argues in his brief that “racial discrimination infects the administration of California’s death penalty,” leading to a disproportionate number of verdicts against Black people like McDaniel.

Batchelder notes that racism is not merely an abstraction in this case. He has argued that the prosecutor improperly struck potential Black jurors, giving the court a reason to overturn not only McDaniel’s sentence, but also his conviction.

The Attorney General’s Office, which is tasked with defending criminal appeals, argues the prosecutor had race-neutral reasons for excluding jurors. However, it concedes that if a reasonable doubt jury standard is required it would invalidate McDaniel’s sentence. The concession strongly suggests that it would also invalidate hundreds of pending capital sentence on direct appeal.

To prepare for the oral argument, Batchelder and Mills have been participating in moot court exercises of the kind Hastings students have become known for.

The two lawyers met when they worked together at the Habeas Corpus Resource Center and have often collaborated on death penalty litigation since.

Both said they’ve chosen to pursue capital cases for the impact they have on the clients they serve, many of whom have been cast aside by society. McDaniel grew up in Nickerson Gardens, the largest public housing project west of the Mississippi, raised by a mother struggling with drug addiction and a father who was abusive and ultimately abandoned the family.

“What he’s hoping for is a second chance,” Batchelder said.

Mills said McDaniel’s case holds much for his students to learn from—not only the intricacies of the legal arguments but also the impact of post-conviction work and what’s involved in getting a good outcome for clients. It took many years of work to uncover the legal issues and get them in front of the court.

“It’s is a good example,” he said, “of how diligence and persistence can really pay off.”