Court Reverses 11 More Death Penalty Cases

The state Supreme Court reversed 11 death penalty cases Tuesday as it released a record number of rulings in an effort to beat a year-end deadline created by the departure of retiring Justice Otto M. Kaus.

With the 11 death penalty reversals, the most ever in a single day under the current court, the justices have now upset 52 of 55 death cases they have decided since capital punishment was reinstated in 1977.

In all, the court released 20 opinions Tuesday, including an important civil ruling that the Southern California Rapid Transit District must protect passengers from assaults by fellow riders.

Late-Hour Vigil

Anticipating a long night, the court on Monday ordered the clerk’s office to plan to remain open until midnight Tuesday, forcing several deputy clerks and security guards to place New Year’s Eve plans on hold.

But as it turned out, the last opinion was released at 7 p.m. Clerks sped the release of hundreds of pages of legal rulings by pressing three extra copy machines into service.

Kaus is leaving the court to resume a law practice, and by law, an active lawyer cannot sit on the court. If the rulings, many of them on cases that had been pending for years, had not been issued by midnight, the court would have been forced to call the lawyers involved back and hold new arguments with newly confirmed Justice Edward A. Panelli on the court.

The justices had been unusually busy in the months since Kaus announced his retirement, as part of the effort to finish opinions in which Kaus’ vote was pivotal to the case’s outcome or in which he had written an opinion.

That effort reached a crescendo Tuesday, particularly in the death penalty cases, where Kaus sided with the majority to reverse all the rulings.

In all but one case, the court upheld the murder convictions, and required only new trials either to prove that the defendant intended to commit the crime, or to retry the penalty phase.

The one exception came in the case of Patrick Croy, convicted of the July, 1978, murder of a Yreka police officer. By a 5-2 vote, the court reversed his murder conviction, although it upheld Croy’s conviction for conspiracy to commit the murder.

Basis of Ruling

The court concluded there was insufficient proof that Croy, who was intoxicated, had the capacity to understand what he was doing when he shot the officer to death. Croy will remain in prison while awaiting a new murder trial. Justices Stanley Mosk and Malcolm M. Lucas dissented.

Each reversal was based on past rulings by the court. Many were based on a 1983 ruling that prosecutors must prove the murder was intentionally committed before the defendant can be eligible for the death penalty. Among the intent-to-kill cases, the court:

- Reversed by a 5-2 vote the sentence of Bernard Lee Hamilton, finding there was no evidence that he intended to kill Eleanore F. Buchanan, whose body was found decapitated and missing both its hands near a cul-de-sac near San Diego.

In an opinion by Kaus, the court ruled that because the cause of death could not be determined, jurors might have concluded, however unlikely, that the death was accidental, or at least unintentional. Lucas and Mosk dissented.

- Reversed by a 6-1 vote the sentence of Bill Ray Hamilton, convicted of three shotgun murders in a Contra Costa County grocery store robbery. Justice Joseph Grodin dissented, saying it “is inconceivable that any reasonable juror would have found (Hamilton) lacked intent to kill.”

- Reversed by a 5-2 vote the sentence of Steven Clark Silbertson for the 1979 Modesto murder of a man who was a former lover of Silbertson’s new wife. Mosk and Lucas dissented.

- Reversed by a 5-2 vote the sentence of David Balderas, convicted of murdering a grocery store clerk after stealing his truck as part of a 1979 crime spree in Bakersfield. Mosk and Lucas dissented.

Among other death penalty reversals, the court:

- Reversed by a 5-2 vote the penalty of Michael Todd Leach, sentenced to death for a torture-murder. Leach stabbed a youth 48 times and left the body in a fig orchard near Fresno. The court concluded that the judge failed to give the jury a proper instruction that before “torture” can be proved, it must be shown that he intended to inflict an unusual amount of pain. Also, the judge erred by telling jurors they could not consider sympathy for Leach. Mosk and Lucas dissented.

- Reversed by a 5-1 vote the sentence of John Galen Davenport because the judge failed to tell jurors they could consider sympathy for him, and by not making clear to jurors that they had a choice of whether to show mercy even if aggravating circumstances surrounding the case outweighed anything that might have mitigated it. Davenport was convicted of the torture-murder of a woman in Tustin in 1980. Mosk dissented.

- Reversed by a 6-1 vote the sentence of Ronald Lee Deere, convicted and sentenced for three murders. He shot and killed the husband and two young children of his former lover’s sister in Riverside County. The court ruled that the lawyer was ineffective because he failed to produce any witnesses who might have testified on Deere’s behalf to evoke sympathy in jurors. Lucas dissented.

- Reversed by a 4-2 vote the sentence of Richard L.A. Phillips, convicted of murdering a partner in drug trafficking after robbing him in September, 1977, in Madera County. The case was one of two reversal opinions written Tuesday by Justice Cruz Reynoso, and were his first death penalty cases since joining the court four years ago. Phillips’ case was the oldest pending death case before the court, argued in October, 1982.

The court concluded that the judge improperly allowed evidence of other misdeeds by Phillips, including letters he wrote while in jail in Utah in which he asked a friend to help him by committing other murders of witnesses against him. Mosk and appellate court Justice Robert Feinerman, sitting temporarily, dissented.

- Reversed by a 4-2 vote the death sentence of Marvin Pete Walker Jr., for the Aug. 6, 1979, murder of a teen-age clerk and wounding of another clerk at a San Jose liquor store in a robbery. The court concluded that the prosecutor failed to adequately warn Walker’s lawyers that he was calling a witness to testify that Walker threatened to kill a police officer or deputy district attorney involved in the prosecution, and said that the trial judge should have made clear that jurors had an option of imposing the lesser penalty of life in prison without parole. Mosk and Grodin dissented.

- Reversed by a 4-3 vote the death sentence of Darnell Lucky for the robbery and murder of Kegam Toran and Diran Odel, co-owners of O & T Jewelry store in Los Angeles. The killing was part of a series of 1978 Westside and Fairfax District robberies and attacks.

The court found that although Superior Court Judge Leslie W. Light showed “remarkable prescience” during the trial in anticipating rulings the justices would later make striking down and modifying aspects of the death penalty law, Light erred by allowing some testimony and by failing to tell jurors to consider Lucky’s unfortunate background of drug abuse and incarceration in determining whether to show mercy.

Grodin, joined by Mosk and Appellate Justice Edward T. Butler, dissented.

Decision to Resign

Kaus announced in August that he would leave the court and officially retired on Oct. 16. Chief Justice Rose Elizabeth Bird appointed him to sit on the court temporarily so that work begun during his four-year-plus tenure could be finished.

Mosk, the court’s most senior member with 21 years’ service, called Tuesday’s number of cases “unprecedented,” but attributed it to nothing other than the court’s “spirited effort . . . to get out all the opinions that Kaus had signed.”

A similar crush occurred in 1984 when Justice Frank K. Richardson left the court to join the Reagan Administration. In his final days, the court issued a dozen rulings.