High Court Gives New Look to Law on Death Penalty

The state Supreme Court on Thursday upheld as constitutional the heart of California’s death penalty law, but modified it by saying that jurors retain discretion in deciding whether to apply death or life in prison.

The ruling that trial judges must clearly tell jurors that they have discretion came despite the law’s mandate that juries “shall” impose death rather than life without parole if they find that “aggravating” factors surrounding a murder outweigh anything that might “mitigate” the crime. A defendant’s bad childhood is an example of a mitigating factor, while a crime’s brutality and a defendant’s criminal convictions are counted as aggravating factors.

The court said a jury “must be free to reject death if it decides on the basis of any constitutionally relevant evidence or observation that it is not the appropriate penalty.”

Writing for the majority, Justice Joseph Grodin said the law does not require a jury to impose death if it “merely finds more bad than good about the defendant and to permit life without parole only if it finds more good than bad.”

Six justices agreed that the section is constitutional. Chief Justice Rose Elizabeth Bird dissented, saying the court should not have decided the issue in Thursday’s case.

Five of the seven justices agreed that the section should be modified, however.

While the court upheld the constitutionality of the sentencing formula, it overturned a death sentence given to a Riverside murderer, granting him a new penalty trial.

One of those dissenters from the modification holding, Justice Malcolm M. Lucas, lauded the court for upholding the law’s constitutionality, but described as ominous the court’s decision to modify what he viewed as a clear section of the law.

170 Appeals Pending

He said the appeals of roughly 170 Death Row inmates are pending. The bulk of those appeals raise questions about the sentencing mandate set forth in the 1978 death penalty law.

“We would place an intolerable and unjustified burden upon the judicial system were we to reverse 170 death judgments merely because of possible confusion regarding the meaning of standardized jury instructions,” Lucas wrote.

But while Lucas suggested that the ruling could result in scores of reversals of death sentences, the majority opinion declined to say how the ruling will affect pending cases.

“Each such prior case must be examined on its own merits to determine whether in context the sentencer may have been misled . . . about the scope of its sentencing discretion under the 1978 law,” Grodin wrote.

The court noted that there was apparent confusion on jurors’ part in some pending death penalty cases over whether they had a choice whether to impose death or to impose life without parole.

Thursday’s ruling came in the case of Albert Greenwood Brown, a parolee and former Marine convicted of the Oct. 28, 1980, murder of Susan Jordan, 15, in Riverside.

Jordan had walked her younger brother and sister to elementary school that day and was walking to high school. That evening, after the girl’s worried parents called police, a man called Mrs. Jordan and said: “Susie isn’t home from school yet, is she? You will never seen your daughter again.”

A short time later, a man called police with directions to an orange grove where the girl’s body was found, her school binders nearby, a shoelace knotted around her neck.

Three Years for Rape

Brown had been released from prison four months earlier, after serving three years for raping a 14-year-old girl in Riverside.

The high court, citing precedents, reversed the penalty phase of Brown’s trial because the judge told jurors before their deliberations that they could not consider sympathy for Brown. The justices left intact his murder conviction. The court said Brown’s family members and others had testified about his past--basically, his bad childhood and sexual inadequacies--in a way that might engender sympathy.

In her dissent, Bird said since the court reversed Brown’s death penalty on other grounds, there was no reason to decide the constitutionality of the sentencing formula.

“If this court intended to . . . make bold advisory pronouncements on the constitutionality of the 1978 law, the time for doing so was soon after its passage,” Bird wrote.

Marked Contrast

Her view was in marked contrast to Lucas’. He lauded the court’s action deciding the constitutional issue, saying, “It would be most unfortunate for the bench, the Bar and the people of this state, and the defendant himself, were we to continue to withhold such guidance.”

The issue of the section’s constitutionality had been raised in every death case tried under the 1978 law.

On Thursday, when the court finally decided the issue, it did so in a footnote to the decision, though it was one that made it clear that it was upholding the section as constitutional.

“If this court were of the view that the law is unconstitutional on its face, as defendant contends, it would certainly be our obligation to say so,” the court said, adding, “we are not of that view.”

U.S. Law Cited

The court said if it concluded that the authors of the 1978 initiative meant jurors must act mechanically, and had no discretion once they found the bad outweighed the good, the law might violate the U.S. Constitution.

By saying the law allowed jurors discretion, the court was able to uphold its constitutionality. It noted that U.S. Supreme Court rulings have held that jurors must have discretion when deciding whether to impose death. The state court has taken similar steps on other occasions with other sections of the 1978 death penalty law.

The law has been criticized by prosecutors and defense lawyers, as well as several of the justices, as being poorly drafted.

Joining Grodin in the majority were Justices Allan Broussard, Cruz Reynoso and Otto Kaus. Justice Stanley Mosk and Lucas also agreed that the sentencing scheme was constitutional, but both dissented from the portion that overturned Brown’s sentence. Bird said she agreed only in the judgment that gives Brown a new penalty trial.

Prosecutors and defense lawyers reacted cautiously Thursday, saying the ruling was unclear. Assistant Atty. Gen. Edward P. O’Brien, who is in charge of death penalty appeals for the state, said, “The illumination of this opinion is about a half-candle.” Echoing Lucas, he called the ruling “potentially ominous.”