Fixation on ‘Detail’ Immobilizes Justice

One characteristic flaw of the legal mind is its tendency to make a fetish of procedure, so that the merits of a case become obscured by an endless tangle of arguments about how it ought to be decided. For example, take three recent cases in which the California Supreme Court has reversed a death sentence.

In each case the ostensible basis for reversal was that the jury was not instructed that the defendant was eligible for the supreme penalty only if he intended to kill.

In 1980 Jose Leon Fuentes and an accomplice robbed a Brinks guard at gunpoint, and Fuentes (probably) or the accomplice (possibly) fired five bullets into the guard’s chest. The trial judge instructed the jury--as the law then required--that a killing committed in the perpetration of an armed robbery was a murder with “special circumstance,” which permitted the jury to impose a death sentence.

The court also told the jury that, if Fuentes was not the triggerman, he would be guilty of the special circumstances only if he intended to aid a killing. The instruction did not explicitly say that the prosecution had to prove an intent to kill if Fuentes personally fired the shots. The jury returned a death verdict, and the state Supreme Court reversed it in an opinion by Chief Justice Rose Elizabeth Bird. The opinion said that the jury ought to have been told that it had to make a determinaton that the killing was intentional even if Fuentes was the triggerman, and the majority speculated that with such an instruction the jury might have believed that Fuentes fired (five times) only to wound the guard so that he would drop the money bag.

As in the Fuentes case, there was not a shred of evidence that Bernard Lee Hamilton intended anything other than death when he kidnaped a young mother in 1979 and discarded her body after cutting off the head and both hands. Of course, it is conceivable that Hamilton killed the victim accidentally and dismembered the body later, although his actual story was a preposterous fabrication that denied any involvement in the kidnaping or killing. His death sentence also was reversed.

On the same day, the court reversed the death sentence of Billy Ray Hamilton (no relation), who murdered three persons execution-style in the course of a 1980 armed robbery. Not only was the killing a classic felony murder, but there also was solid evidence that relatives of a prison companion had paid Hamilton to seek out one of the victims to take revenge for testimony given against the prisoner at his own trial for robbing the same store.

In his dissent, Justice Joseph R. Grodin noted that “each of the victims was shot at point-blank range with a sawed-off shotgun that had to be broken open and reloaded after each deadly shot.” The majority thought that the defense might have been able to make a “diminished-capacity” defense, based on drug use, if proper instructions on intent had been given.

This flood of reversals stems from the expansive way in which the California Supreme Court has interpreted a 1982 decision of the U.S. Supreme Court in the case of Enmund vs. Florida. In that case the U.S. Supreme Court reversed the death sentence of a man who drove the getaway car for a 1975 robbery in which two elderly victims were murdered. The opinion explained that since defendant Enmund did not participate in the killing or even witness it, he could not be sentenced to death merely for his role in the underlying robbery absent evidence that he either intended a killing or anticipated that lethal force might be used.

The U.S. Supreme Court did not say that the jury must make a finding of intent to kill in such cases, and in fact it recently clarified the Enmund decision by ruling that a death sentence may be valid if there was adequate evidence of homicidal intent, even though the jury was not specifically instructed that it must determine that this intent existed. Unfortunately, the California court had already held that the intent instruction must be given in every felony murder capital case even if (as in the cases described above) the defendant personally inflicted the fatal wounds. Still more unfortunately, the California court delayed announcing this ruling until well over 100 cases had accumulated on appeal, and then applied it retroactively to reverse death verdicts even where the evidence of intent was overwhelming. The Fuentes and Hamilton cases that I have described are typical of dozens that have been, or will be, reversed.

I respect Franklin Zimring (see article above) for acknowledging that these reversals may seem unreasonable, and for offering a defense of what the court has been doing that appeals to intelligible standards of fairness. Requiring an instruction on intent, he writes, is necessary to prevent the death penalty from being imposed on an arbitrary basis, and he approves of reversing penalty verdicts even where evidence of intent was overwhelming, because he sees little cost in holding a retrial. If the second jury comes out with the same penalty, no harm has been done, and if there is even a 1-in-100 chance that the verdict will be different, we ought to give the defendant the chance.

This reasoning underplays some important factors. Capital cases in California take at least several months in trial, with eight weeks or more in jury selection alone. The pace of appellate review ought to inspire a satiric novel by some modern Charles Dickens. One recent death verdict was reversed eight years after the crime and almost six years after the end of the trial. Naturally, there is a possibility that any defendant might do better in a retrial years after the first verdict, with the witnesses absent or forgetful and the case file moldering with age. Retrials cost hundreds of thousands of dollars and tie up courtrooms for months, but the human cost to witnesses and surviving victims who have to relive the awful events is even greater.

Jose Fuentes, Bernard Hamilton and Billy Ray Hamilton did not receive the death sentence because of arbitrary whim. Juries of ordinary California citizens voted unanimously to impose the penalty in these cases because--on complete consideration of the evidence, including mitigating factors--they concluded that the crimes were so remorseless and vicious that death sentences were appropriate.

But I am more interested in calling attention to Zimring’s reasoning than in arguing with it. Read his article again. That is exactly how a majority of the California Supreme Court thinks, and that is why we have had no executions despite the fact that a valid death-penalty law has been in effect since 1977.

Once we decide that “punctilious attention to legal detail” is all-important, and that little harm is done by years of delay or lengthy retrials, then what is the harm of continuing to litigate these cases until all the defendants die in prison of natural causes? Zimring has stated the issue accurately. “Does this sort of nit-picking make sense?” I leave the verdict to the reader.