California Debate : Agony Over Resuming Executions

For a quarter of a century Stanley Mosk has stood at the heart of the struggle over capital punishment in California.

In 1960, as state attorney general, he suppressed his personal opposition to the death penalty and successfully defeated well-publicized efforts to save kidnaper Caryl Chessman from the gas chamber. In 1972, as a state Supreme Court justice, Mosk joined in the historic decision that deemed the death penalty unconstitutional, a ruling overturned the same year by voters.

Now, Mosk is the senior justice on a court under siege, largely by those who accuse it of defying the will of the people by blocking executions in the state.

Reflecting on this in an interview in his chambers, Mosk, 72, made an observation that may encourage those seeking to return San Quentin’s gas chamber to active duty.

Foreseeable Future

“I think you could safely forecast that there will be executions in the foreseeable future,” he said. “There may just be a time . . . when most of the legal problems . . . will have been ironed out, so that death penalty appeals will be treated as routinely as all other criminal appeals.”

However, for Mosk and three other liberal justices facing election in November, 1986, the question is whether the “foreseeable future” comes soon enough.

Hardly a week goes by without an attack on the court’s record on capital punishment. Public officials, led by Gov. George Deukmejian, accuse the court of giving murderers legal rights and remedies beyond reason. Prosecutors across the state have joined the campaign to defeat Chief Justice Rose Elizabeth Bird and other liberal justices in next year’s balloting. Legislators threaten to cut off the justices’ salaries unless they act more quickly in ruling on capital cases. Survivors of murder victims charge that the justices ignore the rights of victims in their zeal to protect the rights of the accused.

“When such an overwhelming percentage of the people favor the death penalty and when up to now we have not had any executions, I suppose it is inevitable that some segments of the population will place the blame on the courts,” Mosk said.

However, while the Supreme Court has become a magnet for criticism, the full story behind the lapse in executions in this state--the last one was in 1967--is far more complex.

In tracking it, reporters from The Times examined scores of cases and interviewed legal scholars, prosecutors, defense lawyers, prisoners, crime victims and government figures in this state and across the nation. Mosk was the only California justice who agreed to be interviewed. Justices Joseph R. Grodin and Malcolm M. Lucas submitted written statements in answer to questions.

Most of those interviewed--including many death penalty supporters--do not single out the court exclusively in explaining the gas chamber’s inactivity.

The impasse is caused in part by shortcomings in California’s current death penalty law, adopted by initiative in 1978. The law is ambiguous in some places and sloppy in others. Lined up against that law is perhaps the most sophisticated death penalty defense bar in the nation. These lawyers have had a string of successes spotting flaws in the law and persuading the court to narrow it.

Intense Scrutiny

At the same time, however, the state Supreme Court does give extraordinary scrutiny to death penalty cases. It has extended new rights to defendants in capital cases, rights that often go beyond those accorded to accused killers by the U.S. Supreme Court and by judges in states where executions are now routine.

“The very fact that the penalty is final and irreversible makes it necessary for each judge, no matter what his or her personal views, to be exceedingly careful. Once the sentence is carried out, it is too late to correct mistakes,” Grodin said in a written statement to The Times.

While state supreme courts nationwide reverse an estimated 43% of all death cases they decide, the Bird court has reversed more than 90% of the capital cases it has decided--33 of the 36 since her appointment. The three cases upheld are on further appeal. In 16 of the reversals, the court overturned the guilty verdict and ordered new trials. In the remaining 17 reversals, the convictions were permitted to stand but the death sentences were revoked and the penalty phase of the trial was ordered retried or the sentences were changed to life in prison.

“None of these holdings is incredible,” said University of California, Berkeley, law professor Phillip Johnson. “The decisions are debatable either way. What creates the unusual situation is the pattern. The court comes up with these (reasons to reverse) in every case.” Johnson said that a “circumstantial case” can be made that the court strains for reasons to reverse death sentences.

Others, like Stanford law professor Samuel R. Gross, say that questionable sections of the death penalty statute coupled with an innovative defense bar and the sheer complexities of the issues would give pause to the most conservative judges.

Gross said that even if there were “seven Deukmejian appointees” on the court, there would be no rush of executions, although the result might be “a few executions a year in the next couple years.”

A review of the 36 cases reversed by the Bird court shows that in addition to rulings limiting evidence, which can come in any criminal appeal, the court has focused attention on at least three areas especially important in capital cases:

- Its rulings ensure that capital defendants, nearly all of whom are poor, have almost limitless legal resources, at public expense if necessary. That stands in contrast to restrictions on public funds for appeals in many Southern states where executions are most common.

- It pays particular attention to jury makeup to ensure that people even highly skeptical of capital punishment are allowed to sit on capital cases.

- The justices have narrowed the evidence a prosecutor is permitted to introduce in an effort to persuade a jury to impose the death sentence on a convicted murderer. At the same time, defense lawyers are permitted to introduce virtually any evidence--a bad childhood, drug addiction, poetry written by one convicted murderer to his daughter--when asking jurors to impose life in prison without parole rather than death. Prosecutors can only discuss the crime at hand, plus other felonies for which the defendant was convicted.

“The Supreme Court at every turn has made it harder,” complained Los Angeles Deputy Dist. Atty. Lonnie Felker, echoing other prosecutors.

Court critics such as Felker blame these and other rulings for a decline in the number of death sentences being handed out in California. From 1981 through 1983, 37 to 40 death sentences a year were recorded. The number dropped to 29 last year. In the first eight months of this year, 12 people received the ultimate sentence.

But defense lawyers, such as Michael G. Millman, director of the California Appellate Project, attribute the drop to the declining murder rate.

Nonetheless, Death Row remains heavily populated. Since California put the capital punishment law back on the books eight years ago, more than 195 men--but no women--have been sentenced to death. Only Texas and Florida have condemned more.

California is far from unique in its deliberate pace in resuming executions since 1976, when the U.S. Supreme Court ruled that capital punishment is not cruel and unusual punishment. Today, 37 states have capital punishment laws, yet only 12 states have put prisoners to death. The death penalty is routinely carried out only in the South, where 44 of the 47 executions have taken place.

Supreme courts in three other states--Massachusetts, Washington and Oregon--have struck down their capital punishment laws as unconstitutional. A handful of others reverse more death penalty cases than they affirm, although none approaches the 90% reversal rate of the California court.

Defenders of the justices also note that in those states in which supreme courts regularly uphold death sentences, executions are still relatively rare. Georgia’s court, for example, has affirmed 140 death sentences, but only six prisoners have been executed. The reasons, they say, is that federal courts step in to reverse many of those decisions. Nationally, federal appeals courts reverse 60% of the capital cases that reach them, the NAACP Legal Defense Fund estimates.

Public Frustration

Still, California’s court is under attack like no other in the nation--and Chief Justice Bird has become the symbol for public frustration over the court’s handling of death cases.

A Los Angeles Times Poll on the death penalty found that 75% of the Californians surveyed support capital punishment. The same poll found Bird in trouble among likely voters in the 1986 election, in large part because of their perception that she opposes capital punishment. Only 28% of those polled approved of the chief justice, with 38% opposed and 34% undecided.

A loss by Bird next year would be unprecedented in this state. And she is not the only one in danger of losing. Law-and-order campaigns also have targeted for defeat Justices Grodin and Cruz Reynoso, though they have less liberal records than Bird on capital punishment. Mosk, who also has been targeted by some, has said he may retire before the election.

At the core of the complaint against the court is a contention that the justices let personal opposition to the death penalty color their legal opinions.

‘Ideological Commitment’

For example, Kern County Dist. Atty. Edward Jagels, involved in the campaign to unseat Bird, charges that the justices simply “have an ideological commitment to preventing the death penalty from being enforced.”

That sentiment even has been heard within the court itself. Former Justice Frank Richardson, who regularly found himself in the minority when he voted to affirm death sentences, expressed it in a 1982 dissenting opinion.

“A personal aversion toward the death penalty is both understandable and widely shared, but the sovereign people have placed the law on the books,” he wrote. “It is our responsibility to enforce it. . . . Even in death penalty cases we are under a constitutional mandate not to convert procedural fly specks into reversible errors.”

Lucas, Deukmejian’s appointee and the only current justice who consistently votes to affirm death sentences, also suggested, albeit more delicately, that personal views have an effect.

“As a practical matter . . . it may be difficult for a justice with strong personal views to suppress those views entirely in attempting to resolve a dispute involving controversial issues,” Lucas wrote in a statement to The Times.

With the exception of Mosk, the justices have not said publicly whether they personally oppose or favor capital punishment.

Bird’s Position

Bird consistently has taken the most critical view of capital cases. She has cast votes to reverse all 36 death cases to come before her. She never has argued that the death penalty is unconstitutional, but she has made it clear that she treats capital cases with special care.

In her first majority opinion on a death sentence case, she wrote, “. . . Where the moral equities weigh so heavily against an individual, an appellate court has a special duty to apply its objectivity.” In another opinion, she wrote, “. . . Nowhere is our exercise of conscientious judgment more critical than in those cases in which the ultimate sanction of death has been imposed.”

In several cases she urged the majority to go further than it was willing. She has, for example, advocated that capital cases be tried in three phases: one for the determination of guilt, one to decide whether circumstances qualified the convicted for the death penalty and a third to determine whether to actually apply the death sentence.

She believes that even the most steadfast death penalty opponents should be allowed to sit on juries in capital cases, pointing out that they generally are more skeptical of prosecutors and thus ensure fairer trials for defendants. No other state court has gone that far, although the issue is pending before the U.S. Supreme Court.

Opposite View

At the opposite end of the issue from the chief justice is Lucas. He has voted to reverse some death sentences but wrote that his votes were compelled by past court rulings with which he disagrees.

Additionally, in his statement to The Times, Lucas laid out a position in interesting contrast to Bird’s opinions calling for special care in capital cases.

“I do not believe there should be a ‘death penalty’ exception to the rules of law,” Lucas wrote. “Naturally, in light of the extreme nature of the death penalty, each case must be given careful scrutiny, but I feel strongly that the severity of the penalty should not affect our application of the legal principles.”

Grodin and Justice Otto M. Kaus are usually counted as votes against death sentences, but in two recent cases both expressed some discomfort with the majority position. They suggested that the court should look for ways to ensure that constitutional standards are upheld without always tossing out capital case verdicts.

In his written response to The Times, Grodin said the court seeks to “implement the will of the people that there be a death penalty, and . . . do so conscientiously and expeditiously.” But it also must “review each case with utmost care in order to make certain the law and the Constitution have been complied with.”

State Constitution Cited

Kaus, who plans to retire in October, also wrote one of the most significant opinions to date. It interpreted constitutional law to say the court may apply the state Constitution to death penalty cases, as it does with all other cases. By citing the state Constitution rather than the U.S. Constitution, the California court has been able to give defendants broader rights than they would have under rulings of the more conservative U.S. Supreme Court.

Justice Allen E. Broussard is the only sitting justice to have written an opinion affirming a death judgment under the current law--that of Stevie Lamar Fields, convicted of the 1977 rape, robbery and murder of a USC librarian. He has voted to reverse parts of the 26 other cases he has sat on.

Reynoso voted to affirm one of the 25 cases on which he has sat. He has yet to write a majority opinion in a capital case.

The controversial record of the California Supreme Court on the death penalty predates the current lineup of justices.

The most dramatic example came on Feb. 18, 1972. By a 6-1 vote, the court took a step unique in American jurisprudence by declaring capital punishment a violation of the state Constitution’s prohibition of cruel or unusual punishment. With that one stroke, the court spared from the gas chamber more than 100 condemned men, among them Charles Manson and Sirhan Sirhan.

By then, California had executed 501 men and women. But, Chief Justice Donald Wright wrote, “contemporary standards of decency” had changed. The death penalty, he said, “degrades and dehumanizes all who participate.”

The court’s perception of contemporary standards proved wrong. Gov. Ronald Reagan reacted by saying he had made a terrible mistake appointing Wright. State Sen. George Deukmejian sponsored an initiative to amend the Constitution and reinstate the death penalty. Then as now, a campaign theme was that the court was thwarting the people’s will. The initiative was adopted by 68% of the voters in November, 1972.

U.S. Supreme Court Ruling

But by then the U.S. Supreme Court had taken a historic step of its own. Ruling that the state-by-state patchwork of capital punishment laws around the nation made imposition of the death sentence unconstitutionally arbitrary, the high court struck down all remaining death penalty laws in June, 1972. Four years later, the U.S. court cleared the way for reinstatement of capital punishment, but initiated what has grown into an intricate series of legal procedures intended to make application of the penalty more consistent.

Today, because of those rulings, the argument over the death penalty has undergone a fundamental shift, at least in court. Lawyers no longer argue whether putting prisoners to death is moral. Instead, they focus on whether the death penalty in individual cases conforms with rules laid down by the courts.

As far as courts are concerned, “the morality of the death penalty is academic,” said Donald Kerson, state deputy public defender in charge of death penalty cases.

As a result, attention more than ever focuses on each word in death penalty statutes. California’s law was an initiative sponsored by John Briggs, a politically ambitious state senator from Fullerton. It passed by a 71%-29% margin in November, 1978. But despite its wide support at the polls, it has created major problems, even for death penalty advocates.

Built-In Flaws

“I know one defense attorney who told all his friends to vote for it. He was ecstatic when he saw it,” said Deputy Atty. Gen. Edmund McMurray, a death penalty specialist who is critical of the court but who acknowledges that the law has built-in flaws.

Justice Grodin said the court’s role in death penalty cases has been “rendered particularly difficult by ambiguities in the death penalty statute.”

To date, the court has not affirmed a single death sentence leveled under the Briggs initiative. The three men whose cases were upheld were sentenced under a short-lived 1977 statute authored by then-State Sen. Deukmejian. Deukmejian’s law, deemed constitutional by the court, was replaced by the 1978 initiative.

The death penalty was one of two ballot measures promoted that year by Briggs, who at the same time was seeking the Republican nomination for governor. In a recent interview, Briggs, now a Sacramento lobbyist, described it as “just one more thing I was doing,” and not a particularly controversial measure. The other item he had on the ballot, one to ban homosexuals from teaching jobs, lost. Briggs dropped out of the gubernatorial race for lack of support. But he had a winner in the death penalty.

To draft the law, Briggs paid $5,000 to Donald Heller, then new to private practice after serving as an assistant U.S. attorney in Sacramento. Heller had never tried a capital case. Now a defense lawyer, Heller has become a foe of the death penalty and said he has given “several hundred dollars” to Bird’s reelection campaign committee.

‘Special Circumstances’

What Heller wrote was one of the toughest death penalty laws in the nation. For example, it enumerates 21 conditions--called “special circumstances”--that qualify a defendant for the gas chamber, more than any other state.

In Briggs’ determination to be “tough,” however, he laid the groundwork for much of the law’s subsequent unraveling in the courts. Some sections went beyond laws in other states. Other sections were contrary to California court rulings.

Take, for example, the issue of criminal intent. Briggs wanted to make sure that criminals would be sentenced to the gas chamber for committing a robbery or other felony that resulted in a death. He deliberately left out any requirement that prosecutors prove that such defendants intended to kill their victims; of the 37 states with death penalty laws, only six others made a similar omission.

In 1983, citing a decision by the U.S. Supreme Court, the California court noted that flaw and ruled that before a death sentence can be imposed, prosecutors must prove that the defendant meant to kill his victim.

The decision, authored by Broussard, was one of the most far-reaching rendered by the court and even extended the protection beyond those covered by the U.S. Supreme Court ruling. Seven death sentences have been reversed under it so far. Dozens more condemned men will receive partial retrials, according to the attorney general’s office.

The California court also has issued rulings in direct conflict with the decisions of supreme courts in those states in which executions have resumed.

For example, California’s court deemed unconstitutionally vague a provision in the 1978 initiative calling for the death penalty for a murder that is “especially heinous, atrocious or cruel.” The Florida Supreme Court, which has affirmed 55% of the capital cases it has decided, upheld similar wording in that state’s law. The U.S. Supreme Court upheld nearly identical wording in Georgia’s law. Thirteen people have been executed in Florida and six have been put to death in Georgia.

California’s court, led by Bird, has paid particular attention to jury selection. Bird’s concern is that defendants not get what she has called “hanging juries.”

In her most far-reaching majority opinion, Bird wrote that when juries are being impaneled, each prospective juror must be questioned about his or her feelings toward the death penalty outside the hearing of other prospective jurors. She cited a study by sociologists showing that people tend to become more willing to find a defendant guilty after hearing repeated questions about the death penalty.

As a result, judges and lawyers, who question potential jurors in groups in all other trials, must address each prospective juror separately in death penalty cases. The procedure adds weeks to the length of capital trials.

Critical of Procedure

Several other states considered California’s ruling. Only Washington adopted it. The U.S. Supreme Court specifically criticized the procedure.

There are other contrasts as well. In Georgia, where the Supreme Court has affirmed 75% of its capital cases, it is common for defense lawyers to be paid less than $1,000 to handle death penalty trials or appeals. Some inmates facing execution in Southern states have no lawyer.

In California, capital defendants find a virtually bottomless purse, a result of legislation and state Supreme Court rulings. Capital defendants can have two lawyers paid for by the state. They can hire at state expense psychologists and psychiatrists, plus other expert witnesses, and full-time investigators who look into every aspect of the crime and the defendant.

Once a defendant in California is sentenced to death, the state public defender’s office takes the case. It is “one of the best law firms in the nation,” said Stanford law professor Robert Weisberg. The Deukmejian Administration cut the public defender’s staff in half in 1983.

Death Penalty Specialists

But to take up the slack, the California Appellate Project was set up by the state Bar, Legislature and the Judicial Council, the administrative arm of the court system chaired by Bird.

The CAP staff is made up of death penalty specialists. If they cannot handle all the pending cases, they hire private lawyers at $60 an hour, a higher rate than that paid by any other state.

All of this taken together--the ambiguities in the law, the innovative defense bar, the liberal majority on a court with a liberal tradition--has left prosecutors accustomed to losing capital cases.

“The chances for reversal going in are very, very high,” said Atty. Gen. John Van de Kamp. “You think you get to the end of issues, and something else comes up. For the last seven years, prosecutors have been flying blind without guidance from the court.”

“You know you’re going to lose. The only question is how,” said Deputy Atty. Gen. McMurray.

From the perspective of prosecutors, the situation may get worse before it gets better. The last major undecided issue stemming from the Briggs initiative involves its basic sentencing procedure. The law says a jury “shall” impose a death sentence--instead of life in prison without parole--if it finds that “aggravating factors” surrounding the crime outweigh anything that mitigates a defendant’s culpability.

Called Too Mechanical

Defense lawyers say the formula does not allow jurors flexibility to grant mercy. They want wording that would tell jurors they may return verdicts of life in prison even if aggravating circumstances outweigh mitigating evidence.

If the court agrees and applies the ruling strictly, the bulk of the more than 150 men sentenced under the 1978 law would have to go back to court. New juries would be impaneled, and those juries would again consider whether to sentence the defendants to death--this time using the new rules.

Such a decision would change dramatically how the law is administered, but the death penalty would remain on the books. And with the last major issue resolved, subsequent cases to come before the court would more likely be affirmed, many lawyers believe.

There is, however, one other issue before the U.S. Supreme Court that could affect death penalty cases throughout the nation. The question is whether the death penalty is applied discriminatorily and is thus unconstitutional. The case comes from Georgia, where researchers found that if the murder victim is white, chances are greater that jurors will impose a death sentence than if the victim is nonwhite. A defense win in that case could wipe all death penalty laws off the books.

Same Issue in California

Attorneys for the three Californians whose sentences were affirmed by the state Supreme Court--Robert Alton Harris, Earl Lloyd Jackson and Fields--have raised the same issue in their habeas corpus appeals.

Harris, 32, is the prisoner believed closest to the gas chamber. He was convicted in 1979 of the murder of two teen-age boys in San Diego, and his appeal already has been rejected once by the U.S. Supreme Court. His case is now before the U.S. 9th Circuit Court of Appeals on habeas corpus, the final appellate stage.

Atty. Gen. Van de Kamp has predicted that Harris could be executed within a year. Others are less certain. Deputy Atty. Gen. Michael Wellington, who has prosecuted Harris in appellate courts for five years, said only, “My crystal ball has gotten real cloudy.”

THE COURT’S DECISIONS These are votes by California Supreme Court justice on death penalty cases since 1977. They reflect decisions to uphold convictions; reverals in which new trials were ordered; reversals of special circumstances, which also reversed the penalty, but left intact the conviction; and reversals of penalties, which left intact the conviction and finding of special circumstances.

Death VERDICT Special Penalty Decision Reversed/ Circumstance Justice Cases Affirmed New Trial Reversed Entire Supreme Court 36 3 16 8 Current Justices Stanley Mosk 36 7 14 7 Rose Elizabeth Bird 36 0 21 7 Allen Broussard 27 1 14 7 Otto Kaus 27 2 11 7 Cruz Reynoso 25 1 14 6 Joseph Grodin 21 1 8 7 Malcolm Lucas 6 1 1 3 Justices who have left the court or have died Frank Richardson 21 13 5 2 William P. Clark 8 5 1 2 Wiley Manual 6 2 1 2 Frank Newman 15 3 5 1 Matthew O. Tobriner 10 1 3 1

Penalty Only Justice Reversed Entire Supreme Court 9 Current Justices Stanley Mosk 8 Rose Elizabeth Bird 8 Allen Broussard 5 Otto Kaus 4 Cruz Reynoso 4 Joseph Grodin 3 Malcolm Lucas 0 Justices who have left the court or have died Frank Richardson 1 William P. Clark 0 Wiley Manual 1 Frank Newman 6 Matthew O. Tobriner 5

Kaus also voted once to return the case to a lower court rather than join the majority to reverse the conviction. In two other cases, he indicated he would affirm guilt, but expressed no clear opinion on penalty where the majority reversed convictions. Grodin voted once to return the case to a lower court rather than join the majority to reversethe conviction. In another case, he indicated he would affirm guilt, but expressed no clear opinion on penalty where the majority reversed conviction. Lucas voted once to return the case to a lower court rather than reverse . DROPPING DEATH SENTENCES A year-by-year breakdown of the 209 death sentences recorded in California since reinstatement of capital punishment. The numbers include at least 10 defendants whose cases were reversed by the state Supreme Court and who were resentenced to death in new proceedings.

1978 7 1979 20 1980 24 1981 40 1982 40 1983 37 1984 29 1985 12 (First eight months)

Source: State Public Defender. TRIALS RESULTING IN DEATH SENTENCE These state Public Defender figures show the disposition of capital trials in selected counties between 1977 and 1984. Counties are listed in order of population.

Cases in Which Special Circumstances County Were Charged Death Sentences Los Angeles 907 60 ( 6.6%) Orange 81 14 (17.2%) San Diego 22 4 (18.1%) Alameda 88 7 ( 7.9%) San Bernardino 36 14 (38.8%) Riverside 35 8 (22.8%) San Francisco 18 5 (27.7%) Ventura 23 3 (13.0%) Fresno 39 7 (17.9%) Kern 44 8 (18.1%) Santa Barbara 17 2 (11.7%) Imperial 18 0 ( 0.0%) Statewide Total 1,847 190 (10.2%)