Death Penalty Still a Killer Issue?

Goodwin Liu

Today’s San Francisco Chronicle reports that 42 of California’s 58 county district attorneys are opposing President Obama’s nomination of Goodwin Liu to the federal appeals court in San Francisco.

Why? Because they don’t like the UC-Berkeley’s past criticisms of capital punishment.

According to the Chron:

“Liu’s 2005 critique of the death penalty opinions that [Supreme Court Justice Samuel] Alito authored as a federal appeals court judge in Philadelphia included a case in which a prosecutor had removed all three black prospective jurors from a panel that proceeded to condemn a black defendant to death. The prosecution had also removed all African Americans from juries in three other trials in the county that year.

Alito dissented from a ruling overturning the death sentence and said the statistics did not prove the prosecution had been racially biased in picking juries. Liu said Alito’s reasoning was later rejected by the Supreme Court and illustrated his willingness to excuse constitutional flaws in death penalty cases.”

Liu is a potential lightning rod for other judicial issues that divide conservatives and liberals, including affirmative action, slavery reparations and same-sex marriage to name but three. And his ascent bears watching, as Liu would be a “three-fer” for the left as far as Supreme Court nominations go: he’s young of age (only 39); Asian-American; and (as one would presume of  9th Circuit judge) potentially a liberal activist justice for many years to come.

Sounds like the makings of a real scrap in Washington, not unlike the fight during the Bush 43 years over young conservative Miguel Estrada.

Meanwhile, back in the Golden State, there’s a question of how any controversy of the Liu nomination ties into California’s attorney general race — specifically, the aspirations of San Francisco DA and Democratic hopeful Kamala Harris.

Kamala Harris

Harris has long maintained the position that, although she’s personally opposed to the death penalty, she’d review each case individually — basically, the same stance as California’s current “top cop”, Jerry Brown.

The problem for Harris is any focus on the death penalty brings up the story of Ivan Espinoza, a San Francisco police office gunned down the Saturday night before Easter in 2004 — at the time, the first slaying of an on-duty office in San Francisco in over a decade.

Espin0za’s killer, who used an AK-47 in the shooting, was an admitted gang member and had written rap lyrics glorifying shooting at police. Espinoza’s family and his SFPD colleagues asked for a dealth-penalty prosecution. Harris chose not to, citing her moral opposition to capital punishment and her belief that a San Francisco jury wouldn’t go along with the death penalty.

Harris’ decision sparked outrage in the San Francisco law enforcement community. And it became even more of an embarrassment for the SF attorney general when, at Espinoza’s funeral service, Sen. Dianne Feinstein received a standing ovation for saying that the murder was indeed a special circumstance that warranted the death penalty.

If that wasn’t bad enough, Feinstein rubbed further salt in Harris’ wound by telling reporters that, had she known Harris was so adamantly anti-capital punishment, she never would have endorsed her for d.a.

Should Harris win the June primary and there’s footage of those Feinstein comments, look for the Republican nominee to use it in the fall election.

Some things run circular in California. Twenty years ago, it was Dianne Feinstein’s support of capital punishment that put her at odds with the liberal wing of her party, who booed her at a state party convention. Yet it was the sympathetic backlash from that vocal and philosophical that not only gave Feinstein a win in a contentious gubernatorial primary, but boosted her reputation among centrist voters, who four times now have elected her to the U.S. Senate.

That was 1990. In 2010, it could be Feinstein and the death penalty once again in the spotlight — ironically, this time around, maybe dealing a death-blow to a fellow Democrat’s candidacy.