A California appeals court has dismissed a lawsuit filed by the American Civil Liberties Union against San Mateo County District Attorney Stephen Wagstaffe and several of his colleagues over jurisdiction in death penalty proceedings.

On March 5, the ACLU and four other organizations claimed in a combined suit that Wagstaffe, along with the district attorneys of San Bernardino and Riverside counties, were overstepping their powers when they moved to appeal a 2018 federal court ruling. The ruling argued that the power to make decisions around the death penalty in California rested with the governor and the attorney general.

But the ACLU’s lawsuit was dismissed by the 1st District Court of Appeals on March 9.

The three district attorneys have been taking court action since 2018 in the hopes of being able to begin litigating death penalty cases. That year, the three prosecutors asked the court to intervene in a federal lawsuit filed by a group of death row inmates against the state over legal injection protocols. In their filing, the district attorneys also asked that the court lift a stay of execution that was granted to five death row inmates, two of whom were convicted in San Mateo County.

Though the district attorneys’ request to intervene was denied in 2018, they have since appealed that ruling with the 9th U.S. Circuit Court of Appeals, which heard arguments in September 2020. The district attorneys’ appeal is pending.

Litigation in death penalty cases has virtually stalled since the Gov. Gavin Newsom passed a 2019 moratorium, which granted temporary reprieve from the controversial punishment to more than 700 death row inmates.

In San Mateo County, there are two cases where the death penalty is being considered. These cases have exhausted all their appeals but next steps, including sentencing, haven’t happened under the moratorium.

Wagstaffe said he wants to ensure legal proceedings for the two death row cases resume sooner rather than later so that there isn’t a years-long delay should the state moratorium end.

“We’re not asking the death penalty be done now,” Wagstaffe said. “If at some point Gov. Newsom’s moratorium is lifted, because he leaves office or his successor decides not to keep it, if no one is doing anything on litigation, well, now we’ll go years before we get it done.”

Wagstaffe won’t go so far as to say that he will never seek the death penalty, which the district attorneys of Santa Clara and Los Angeles counties have pledged. But he said he would have no objection to the death penalty so long as that’s what the voters want.

“I’m not a big supporter of death penalty,” Wagstaffe said. “What I am a big supporter of is the oath to uphold the law.”

In 2016, Proposition 62 came before California voters. Had a majority voted “yes” on the proposition, the death penalty would have been repealed and replaced by life imprisonment and forced labor without the possibility of parole. In San Mateo County, 57 percent voted to repeal the death penalty. Ultimately, the proposition lost after 53 percent of statewide voters supported to keep the death penalty.

The last death penalty verdict was made in 1994 under Wagstaffe’s predecessor, former District Attorney James Fox.

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