Justice Lucas Raps Convict’s Delay Effort

In his first lead opinion since joining the state Supreme Court 15 months ago, Justice Malcolm Lucas on Monday impatiently affirmed the conviction of a “street-wise” burglar while praising several trial judges who originally heard the case.

Writing for the 6-1 majority, Lucas showed exasperation with what he called “a classic example of a street-wise defendant doing everything possible to delay his conviction” or have it overturned on appeal.

Chief Justice Rose Elizabeth Bird dissented, agreeing with an appeals court that the trial judge had erred by not carefully considering claims by the defendant, Robert G. Smith, that he had been denied a chance to adequately defend himself. One of Smith’s principal complaints was that he didn’t have enough sleep in jail the night before the trial.

Smith was seen by an eyewitness as he fled the scene of a supermarket burglary in Fullerton in January, 1982. Then on probation for another burglary, he was caught by police. The witness identified Smith’s car, his clothing and the stolen property--half a case of cigarettes, which were in the car. Smith told police: “You got me. What more do you want?”

But Smith pleaded not guilty. As his own lawyer, he filed numerous legal motions complaining about such things as a lack of office supplies in jail and a lack of evidence.

The complaints considered at length by the justices were that Smith had been denied adequate sleep and access to law books while in jail. He said this cost him the right to adequately defend himself, so he refused to participate in the trial.

The Supreme Court was unmoved. Lucas said the record contradicted Smith’s claims. “We must conclude that defendant failed to present a defense because none was available,” Lucas wrote.

He added that “it is a credit to the various judges involved that they showed such deference, consideration and courtesy to this defendant.”

Bird, facing a difficult confirmation election next year because of charges that she is too liberal, conceded that Smith “appeared to enjoy tweaking the system.” But she concluded that he had been denied an adequate defense and thus a fair trial.

“The right to (legal) counsel . . . has nothing to do with the relative strength of the prosecution case,” she wrote.

Lucas is a former federal judge and Gov. George Deukmejian’s only appointee on the court. He has written numerous dissenting opinions but had not issued a majority before Monday.

Although he is considered the court’s most conservative member, Lucas has sided with the majority in more than half of the cases decided since he joined the court.