With California voters readying to consider whether to retain the death penalty, two prominent district attorneys, including San Mateo County's, are mounting a rebel legal campaign to kick-start executions in San Quentin's long-dormant death chamber.
Los Angeles District Attorney Steve Cooley has been heading the charge, moving in recent months to sidestep legal obstacles that have put executions on hold for nearly seven years and secure execution dates for condemned killers Mitchell Sims and Tiequon Cox.
But San Mateo County District Attorney Steve Wagstaffe has quietly joined in, asking a local judge to set an execution date for Robert Green Fairbank, sent to death row for the 1985 murder of a San Francisco woman.
The legal gambit is spurred by some prosecutors' mounting frustration with Gov. Jerry Brown and Attorney General Kamala Harris, who instead of rushing to resume executions have focused on fighting state and federal court orders that froze executions because of flaws in the prison system's three-drug execution procedures. The state, in fact, assured a federal judge two years ago that there would be no attempts to execute inmates until those legal battles were resolved.
"Prosecutors and victims' advocates throughout the state are indeed frustrated with the failure of the (state) to get this process moving," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation.
In court papers, Wagstaffe and Cooley argue that California can execute inmates with a single drug, avoiding the legal stalemate over the state's botched attempts to retain its three-drug method. Other states such as Washington, Arizona and Ohio have adopted that approach.
A Los Angeles judge on Monday is expected to hear the latest round of arguments in Cooley's maneuver, and a San Mateo judge will consider the Fairbank case in October, not long before voters decide the fate of Proposition 34 -- the first time Californians have been asked to abolish the death penalty since it was reinstated in 1978.
Wagstaffe was out of town last week and could not be reached. But Los Angeles prosecutors insist their demand for swift execution dates is unrelated to the ballot measure, saying both Cox and Sims have exhausted their legal appeals and should pay for crimes committed decades ago.
"We're not trying to rush and get an execution before Nov. 6," said Deputy District Attorney Michelle Hanisee, who noted that it's too late for Cox or Sims to be executed before the election. "This is about getting our system back on track."
Death penalty foes say the move to execute the inmates flouts a number of court rulings requiring California to fix its lethal injection procedures, which have been challenged because of concerns they expose the condemned to a cruel and unusual death.
"I can't imagine what they are thinking," said Natasha Minsker, Proposition 34's campaign manager. "They're trying to do an end run around the law."
With more than 720 murderers on death row, Fairbank, Cox and Sims are in a select group of about a dozen inmates who have run out of legal options to avoid execution. All that stands in the way of lethal injections for them are several court orders that have blocked executions -- and legal experts say the two prosecutors' arguments will not get them past those orders.
A federal judge was the first to halt executions in the case of death row inmate Michael Morales, who challenged the lethal injection method on the eve of his February 2006 execution. More recently, a Marin County judge put executions on hold, concluding that the state did not follow proper administrative procedures when prison officials crafted new lethal injection guidelines.
The Brown administration has appealed that decision, but in court papers says prison officials are working on the single drug option. Cooley and Wagstaffe argue that San Quentin can use that method right now, saying in their court filings that individual trial judges have the legal authority to order prison officials to carry out executions on a case-by-case basis.
Mark Drodzdowski, Fairbank's lawyer, said "there are a number of roadblocks to what the DAs are seeking." And Sara Eisenberg, lawyer for death row inmates in the Marin case, added that the courts have barred California from carrying out executions until it devises a legal, court-approved method.
"That should be the end of the story," she said. "In my view, that's just how it's got to be."
Harris' office declined to comment, referring questions to state prison officials. But in court papers, the attorney general and prison officials appear to agree with Eisenberg, telling the judge in the Los Angeles case that ordering them to carry out an execution would conflict with existing injunctions.
"Any such order would place (the state) in an untenable position because it would not be able to simultaneously comply with one order directing it to carry out executions and another order barring it from doing so," state lawyers wrote.
San Mateo prosecutors, however, say the time has come for Fairbank to be executed with a single, fatal dose of a sedative for the rape and murder of Wendy Cheek, whose naked, partially burned body was found in a tree grove along Highway 280 in San Mateo County 27 years ago.
"We feel the court can set a date," Deputy District Attorney Joe Cannon said. "The law mandates that the death penalty be imposed in this particular situation."
Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at Twitter.com/hmintz