Maureen McDermott was sentenced to death for the attempted murder and first-degree murder of her housemate in 1990. She filed a habeas corpus petition that asked the court to review the legality of her conviction, arguing that the district attorney who prosecuted her committed “prejudicial error” when she quoted Biblical passages during closing argument. The district court denied McDermott’s claim, and now the Ninth Circuit has affirmed. However, California Governor Gavin Newsom’s moratorium on the State’s death penalty may still keep her from the gas chamber.

The three-justice unanimous Ninth Circuit opinion, authored by Circuit Judge Kim McLane Wardlaw on October 26, applied the standard in the Antiterrorism and Effective Death Penalty Act (AEDPA), by finding that it complied with “clearly established Federal law, as determined by the Supreme Court of the United States.” Circuit Judges Ronald M. Gould and Michelle T. Friedland concurred.

The appellate court also issued a Certificate of Appealability (COA) regarding McDermott’s claim that the prosecutor improperly used peremptory challenges regarding race during jury selection. This legal document is required for a court to rule on the denial of a habeas petition. When issuing the COA, the Ninth Circuit found “there was no purposeful discrimination” because the district court made “an objectively reasonable determination of the facts.”

McDermott’s case originated in April 1985 when Stephen Eldridge, with whom McDermott shared a house, was stabbed to death by Jimmy Luna, a man whom McDermott hired to kill Eldridge for $50,000. Luna hired two others to assist him. McDermott was then 37 and a nurse. Eldridge was a landscaper. When the two decided to become joint owners of a home, each of them took out a $100,000 life insurance policy that named the other as beneficiary.

After several murder attempts by Luna and his two co-assassins, the three men succeeded in killing Eldridge by stabbing him 44 times, according to the coroner. McDermott was arrested and charged with “attempted murder, murder, and special circumstance allegations of murder for financial gain and lying in wait.” She was convicted in March 1990 and sentenced to death a month later by Los Angeles Superior Court Judge Alan B. Haber (now deceased).

Following state law, her capital conviction was automatically appealed to the California Supreme Court, at which a unanimous Supreme Court opinion by then Justice Joyce Kennard (now retired) affirmed both her conviction and sentence. McDermott appealed to the United States Supreme Court, but certiorari was denied. A series of state habeas petitions followed, along with several federal habeas petitions when the state writs were denied. One petition, which alleged prosecutorial misconduct, was granted a COA.

After reviewing the facts and their legal journeys, Wardlaw explained why the U.S. District Court for the Northern District of California did not err when it denied McDermott’s prosecutorial misconduct claims. In her opinion, she quoted language from then-Deputy District Attorney Katherine Mader’s closing argument at trial. Mader, who is now retired but who served as a Los Angeles Superior Court Judge for two decades, said in her closing to the jury that she was not a Biblical scholar, but said that she believed “Thou shall not kill” also meant that thou shall not commit murder.” She provided several other relevant passages from the Bible as well. These included a citation from Exodus 21 that states, “Whoever strikith a man a mortal blow must be put to death,” and “When a man kills another after maliciously scheming to do so, you must take him from my altar and put him to death.”

McDermott’s objections to the Biblical quotes were first raised on appeal. Still, the Ninth Circuit disagreed that McDermott’s claim was “procedurally barred.” After applying the AEDPA, Wardlaw still found no cause to grant McDermott’s habeas petition. Judge Wardlaw said that the district court’s denial complied with “clearly established Supreme Court precedent” which “has never announced a rule about invocations of religious authority in a closing argument…”

Wardlaw cited several additional Supreme Court cases and concluded, “There was not then

(and is not now) clearly established Supreme Court precedent holding that invoking religious principles generally or the Bible specifically during closing arguments violates the Constitution.” She wrote that even though use of the Bible might violate separation of church and state, the Ninth Circuit said it was “constrained by AEDPA and Supreme Court precedent.”

McDermott, who is White, also argued that the prosecutor violated her Fourteenth Amendment rights by excluding nine of twelve prospective Black jurors from service. As a result, a COA was granted, but defendant’s claim was ultimately denied because she could not show that “race was a substantial motivating factor” in at least one of Mader’s juror strikes, each of which was described in detail. COAs were denied in all defendant’s remaining claims.

Despite all her legal losses, Governor Newson may save McDermott from execution because he imposed a moratorium on all executions in March 2019. The 21 women on death row at that time were allowed to choose to stay on Death Row at the Central California Women’s Facility in Chowchilla or participate in rehabilitation or work programs. Unless Newsom changes his moratorium, McDermott will not be the first woman sent to her death by the state since 1962.