Death Penalty Stance Changes : Lucas Signals Intent to Uphold Some Sentences

State Supreme Court Justice Malcolm Lucas has signaled that he has switched his position on a controversial death penalty issue and will begin voting to uphold some death sentences, even though he is bucking past case law.

Lucas, the court’s only conservative and the most consistent supporter of the death penalty, urged the majority to join him “in re-examining and ultimately overruling” the precedents handed down during the last two years.

Arguing that those rulings are “responsible for an increasing number of unnecessary reversals and retrials,” Lucas said in a little publicized dissenting opinion on Monday that he “can no longer” concur in the reversals.

While Lucas’ switch is expected to have little practical effect because the majority does not agree with him, it may undermine campaign claims by Chief Justice Rose Elizabeth Bird’s supporters that the high court is, for the most part, united on death penalty cases.

In interviews and speeches, Bird and her supporters have cited Lucas’ votes to reverse death penalty cases to buttress their assertions that the court’s record of overturning 36 of 39 death judgments is compelled by precedent.

At issue are decisions rendered during the last two years holding that prosecutors must prove, and jurors must find, that a murder was intentional before sentences of death or life imprisonment without parole can be imposed.

So far, the court has reversed nine death sentences based on the intent rulings. Lucas joined in six of those reversals, and even wrote the majority opinion in one of them. But he never embraced the intent rulings wholeheartedly, saying in several short concurring opinions that his votes were compelled by past law.

Letter to Journal

Explaining his position in a May 6 letter to the Los Angeles Daily Journal, a legal newspaper, Lucas wrote: “ ‘Joining’ a majority opinion under compulsion of an earlier case is somewhat like ‘joining’ the Army under duress of being drafted.

“In both situations, the exercise of free will is seriously in doubt. But precedent is precedent and in three of these cases such precedent required my reluctant concurrence.” In the letter, Lucas underlined the word “reluctant.”

Since that letter was published, Lucas, appointed to the court 1 1/2 years ago by Gov. George Deukmejian, has joined in reversing three more death sentences based on the intent precedents.

The governor is a death penalty supporter and an outspoken foe of Bird.

Despite Lucas’ writings that he was less than enthusiastic about the intent precedent, Bird and supporters of her effort to win reelection in November, 1986, pointed to Lucas’ votes to support claims that the court’s action overturning death judgments was mandated by the law.

“If you look at the whole area of the death penalty, for example,” Bird said in an interview with San Francisco Focus magazine to be published in December, “in all the reversals, all of those were done by a majority of the court. They aren’t done by one individual.

”. . . And Justice Lucas has, in the majority of cases, voted to reverse them.”

In a speech given on Bird’s behalf, actor Warren Beatty told a San Francisco audience in July that “even on the controversial, painful question of the death penalty, things are not as simple as they seem in the simple-minded stereotypes coming from the anti-court forces.”

“In half the recent death penalty cases,” Beatty said in a speech written by Bird’s campaign, “the justice appointed by the incumbent Gov. Deukmejian has voted with all of his colleagues to overturn that penalty.

“This isn’t because Justice Lucas is a sudden convert to liberalism. It’s because he’s solemnly sworn to uphold the law.”

Lucas’ new position emerged in a lone dissent Monday as the court overturned a death sentence against Danny Montana Guerra, who was sentenced to death for the 1979 slaying of a department store security guard in San Bernardino.

In his two-page dissent, Lucas made no reference to the campaign statements made by Bird and her backers about his previous position. The majority, in its opinion, did not respond to Lucas’ change in position.

A spokesman for Bird’s campaign declined comment, noting that Monday’s case is not yet final.

The state attorney general’s office has estimated that as many as 45 Death Row inmates will have their sentences reversed based on the precedents, as will 90 or so inmates who have sentences of life imprisonment without the possibility of parole.

Defendants in those cases stand guilty of murder. But they will be returned to courtrooms where jurors will determine whether the murder was intentional. If the murders were deemed intentional, jurors could still impose death or life imprisonment.