For Rose Bird, the Jury Is Out : THE PROSECUTION: Chief Justice of State High Court ‘Will Never Impose a Death Penalty,’ Rackauckas Alleges

It was the state Supreme Court’s 1980 decision that killer Maurice Thompson would not go to the gas chamber that first turned Orange County prosecutor Tony Rackauckas against Chief Justice Rose Elizabeth Bird. He has been trying to oust her ever since.

Thompson had been sentenced to death for killing a La Habra man in 1977. But the Supreme Court, in a 4-3 decision, threw out the robbery and burglary circumstances of the case--which had permitted the death penalty--and reduced Thompson’s sentence to life in prison.

Rackauckas, who had been Thompson’s prosecutor, was livid. Now, he is one of several Orange County prosecutors spearheading a 1986 recall effort aimed at Bird and several other justices.

A ‘Ludicrous’ Argument

In the Thompson case, Bird, who wrote the majority ruling, said the defendant’s words at the time of the crime indicated he may have wanted to kill his victims--including a woman who was shot but not killed--for reasons other than robbery and burglary. Without those special circumstances, the court held, the death penalty could not be imposed.

Rackauckas, 42, said Bird’s argument was “ludicrous,” noting that Thompson also told his victims he had heard they had a lot of money in the house, according to court records.

“There was just no doubt that the reason Thompson was in that house was to rob those people,” Rackauckas said. “Even if he had another reason, that doesn’t interfere with his robbery intentions.”

Like other prosecutors, Rackauckas was also angered by the Bird court’s 1979 reversal of the death sentence for Lavelle Frierson of Los Angeles County. In that case, Bird wrote: “No matter how clamorous the movement of the moment, the right to be free of cruel and unusual punishment . . . may not be submitted to vote and depend on the outcome of election.”

Decided to Try Recall

Rackauckas said he decided two days after the Thompson decision that voters should recall Bird. “It just became clear that she is never going to impose a death penalty,” he said.

The prosecutor formed a Bird recall group and later that year joined the statewide recall efforts organized by La Canada businessman Marvin Feldman. However, the group couldn’t raise enough money for an effective signature drive to put the recall on the ballot.

In 1982, Rackauckas joined forces with an anti-Bird campaign led by conservative state Sen. H. L. Richardson (R-Glendora). The decision required Rackauckas to take up to a year’s leave of absence from his job to direct the Recall Rose Bird Alliance from Sacramento.

It was not an easy decision, because Rackauckas, a senior homicide prosecutor, had just been named prosecutor in the case of William Bonin, the “freeway killer.” But he said that recalling Bird was more important.

However, this anti-Bird effort also failed. Rackauckas blamed it on insufficient funds and political efforts by Bird’s supporters to head off a recall.

Now, Rackauckas said he hopes that the third time will be the charm. He is one of the directors of the Orange County chapter of the Prosecutors Working Group, which is opposing Bird as well as Justices Cruz Reynoso and Joseph Grodin in next year’s election.

‘She’s Going to Be Voted Out’

“I feel very strongly she’s going to be voted out,” Rackauckas said. “If we can get her record in front of the people, I just don’t think there is any way the public is going to accept her.”

The main issue against Bird and the other justices, Rackauckas said, is the death penalty. He noted that Bird has voted against imposing the death penalty in all 36 cases she has heard on appeal from lower court decisions that imposed capital punishment.

“It is just obvious that she has allowed her personal philosophy to guide her decision on these cases, rather than what the law says,” he said. “We’re not asking for a hanging judge. We’re not asking for judges who vote our way all the time. We just want someone who will try to be fair.”

Rackauckas scoffed at arguments by Bird’s supporters that political opinions should be kept out of judicial elections.

“To suggest these people (justices) are above politics is absurd,” he said. “They are political appointments in the first place. We have a court packed by (former Gov. Edmund J. Brown Jr.) for political reasons.”

‘An Empty Campaign Promise’

Rackauckas likewise dismissed Bird’s recent prediction that there will be numerous executions in California in the next few years.

“It’s her way of saying: ‘Vote for me and things will change. Just keep waiting and eventually I’ll do the right thing,’ ” Rackauckas said. “I see it as an empty campaign promise.”

Rackauckas said Bird’s record on capital punishment has not been overemphasized, and added that the state needs an effective death penalty.

“We’re dealing with an element that commit crimes that are so horrible, there is no other penalty which fits the crime,” the prosecutor said. “Some of the crimes are so depraved and so extreme, the only answer to it is the death penalty.”

Despite the intensity of his beliefs, Rackauckas said the voters’ decision next year will mark the end of his involvement with the state court issue.

“There aren’t going to be any more recall efforts. This is it,” he said. “If Bird, Reynoso and Grodin are not removed from office next year, then I guess we’re going to have to accept the fact that this is the kind of court the public wants. Sad but true.”