Following the Law

The California Supreme Court last week reversed four more death penalty cases, some of which involved particularly heinous murders. The decisions are already adding to the clamor for voters to remove Chief Justice Rose Elizabeth Bird and other justices next year. But a review of the cases demonstrates that they were indeed flawed and that the court acted properly in sending them back for retrial of either the guilt or the penalty portions.

No one applauds when guilty people go free, but there is little likelihood that any of the defendants in these cases will go free or even escape punishment. The preponderance of evidence indicates that retrials will produce the same results that the first trials did. But the records will be clean, and punishments will be meted out in accordance with the law. No corners will be cut, and no bad precedents will be set. This is not simply a matter of protecting the rights of criminal defendants. The court’s role is to protect the rights of all citizens by ensuring that the letter of the law is observed, and that is what the court has done.

Consider the case of Theodore F. Frank, convicted of murdering 2-year-old Amy Sue Seitz in March, 1978. The girl was raped, tortured, mutilated and then strangled. Frank was sentenced to die in the gas chamber. The Supreme Court upheld the conviction but ruled that the sentencing portion must be retried. It said the trial judge had erred by allowing into evidence portions of a diary Frank had written, a diary that was improperly seized by police using a search warrant that was too broadly drawn.

To many people, that is a quibble over an outrage. “The facts are clear,” they say. “Frank is guilty, and he deserves neither sympathy nor consideration. The diary was irrelevant. The jury would have returned the same sentence without it.” Assuming that is true, there will be no problem. The retrial will be held expeditiously, and the same sentence will result. No matter what happens, the best that Frank can hope for is life in prison without possibility of parole.


Suppose the court had said that the facts in this case are so terrible and the crime so grievous that it would overlook the defective search warrant. In the next case that comes along, a prosecutor would say to a judge, “Let me cite you the Frank case, where the Supreme Court said, ‘The search warrant was no good, but it was OK to admit the evidence.’ ” The precedent is unacceptable.

In another case, the court reversed both the conviction and sentence of Harold R. Memro (who was accused of murdering 7-year-old Carl Carter Jr. in 1978) because the trial judge did not allow sufficient inquiry into whether Memro’s confession had been coerced by South Gate police. Here again, the court was on solid legal ground in declaring that the circumstances of Memro’s confession should have been examined at the trial.

In the remaining two cases, the court unanimously threw out the penalty phases of the trials of convicted murderers Juan A. Boyd and John W. Hayes because the prosecutor failed to prove specifically that they had intended to murder their victims. People who criticize the court say that the death-penalty initiative passed by the voters in 1978 removed intent to murder as a requirement for capital punishment. But the court held in 1983 that the language of the initiative did not do that and, furthermore, that it would probably be unconstitutional if it did.

We note in passing that the U.S. Supreme Court--not known as a bastion of liberal legal views--also overturns death penalty cases when they are defective, as it did Tuesday because a prosecutor had made an improper statement to the jury. In that case, as in the recent California cases, the facts were clear and overwhelming. But the high court found that what some consider a “minor technicality” was sufficient to upset a death sentence.


The legal system in the United States says that we have rules and that we follow the rules whether the facts are marginal or overwhelming. Justice will be done, but it must be done in concert with fundamental constitutional rights. In applying the law, the state Supreme Court is not looking out for criminals, it is protecting the rights of all of us.