The California Supreme Court refused Wednesday to consider whether Gov. Gavin Newsom’s moratorium on executions prejudices capital defendants.

Meeting in closed session, the state high court declined to review two Los Angeles County cases in which defendants face the death penalty.

The court issued a short order that did not explain the justices’ thinking, but the action means that the court is unlikely to weigh in on other cases in which defense attorneys claim that jurors considering a death sentence might be swayed by the moratorium.

Prosecutors can now move forward with the two Los Angeles County cases, one of which had been put on hold.


Attorneys representing Jade Douglas Harris, who is accused in a shooting rampage that left three people dead and two wounded, and Cleamon Johnson, a gang leader known as “Big Evil” who is charged with five counts of murder, had argued that a fair decision would be impossible given that Newsom granted a reprieve to the more than 700 prisoners on death row and had the state’s execution chamber dismantled — with much fanfare in front of cameras.

Jurors, they argue, might be more likely to favor the death penalty if they don’t believe it would actually be carried out.

“The jury making that order has to really believe it, because if they don’t, they could be cavalier about it and just say: ‘Well, let’s send a message. … We know [the death sentence] is never going to happen, but let’s do it anyway,’” Johnson’s attorney, Robert Sanger, has said.

Prosecutors in Johnson’s case said in court papers that any of his concerns can be handled through appropriate jury instructions and during voir dire, when jurors are questioned before the trial to determine their fitness. They argued that concerns about fairness can also be assessed on appeal.


Harris’ trial had been set to begin in July. Attorneys on both sides were about two weeks into choosing a jury when they had to toss out the work they’d done and send the potential jurors home while waiting for the high court to weigh in.

California, which has the largest death row in the nation, has not had an execution since 2006. In March, Newsom issued his controversial moratorium on death row executions in the state.

“The law is the law, and this is crystal clear: The Constitution of the state of California provides the governor the ability to reprieve, the ability do this moratorium,” Newsom said at the time. “My ultimate goal is to end the death penalty in California.”