Justice Teeters on the Fine Points : In Capital Cases, Can Any Error Be ‘Harmless’?

The People vs. Bernard Lee Hamilton, one of several death-penalty decisions announced recently by the California Supreme Court, is exactly the kind of case that produces fire in the eye of the court’s critics. To them the case is the very model of a court running roughshod over statutory language and popular will in order to forestall executions.

Yet closer inspection of the case helps explain both why a state Supreme Court justice’s job is complicated and why we may need judges free of public pressure.

Hamilton was convicted of a 1979 murder, burglary, robbery and kidnaping in San Diego and sentenced to death. The murder conviction was unanimously affirmed by the Supreme Court, but the death sentence was reversed because the trial judge had failed to instruct the jury that it would have to find that the defendant intended to kill his victim before a death sentence could be imposed.

The statutes defining murder and capital punishment do not expressly require that those who kill during robberies must intend the death of their victims in order to be eligible for the death penalty. That “intent to kill” requirement was established by the California Supreme Court in the 1983 case of Carlos vs. Superior Court. Hamilton’s was one of the many death-penalty cases that had been tried before the Carlos rule was announced. In fact, the court broke no new legal ground in applying the rule in the Hamilton case or in the 10 other cases handed down this past New Year’s Eve.

Then why the fuss? Critics see the court as standing in the way of the popular will by repealing death sentences, as it has done in 52 of the 35 death-penalty cases that it has decided to date. That sort of box score by itself convinces many observers that the court is obstructing the will of the people. The use of an intent-to-kill reading of the statute also is seen as a technical excuse rather than a genuine addition to the jurisprudence of capital punishment. Finally, and most important in the current group of cases, the intent-to-kill requirement was used to reverse death sentences where the defendant’s intention seems pretty clear.

In Hamilton’s case, according to Justice Malcolm M. Lucas, the victim was “stripped to her underwear, bound hand and foot, repeatedly stabbed, partially dismembered and finally decapitated.” Isn’t that pretty good evidence of intent? Shouldn’t the law provide for a death penalty in cases like this, whether or not the defendant intended to kill? The majority opinion justified a reversal because “the defendant might have been killed accidentally, with the defendant deciding afterwards to mutilate the body.” Does this sort of nit-picking make sense?

Yes. Requiring proof of intent to kill is a necessary check against the arbitrary imposition of the death penalty. Making sure that juries are properly instructed costs little. And it is precisely in gruesome cases such as Hamilton’s that a strong court is needed as a counterweight to public sentiment.

Confining capital murder to cases in which the defendant intended death is necessary unless the death penalty is to become a lethal version of the state lottery in which a few defendants are selected from all convicted killers by chance and without standards. Even if California were to execute as many prisoners each year as it did in the 1930s and 1940s, fewer than one in every 100 killers would be put to death. How should we select that one in 100?

Clearly the defendants who meant to kill their victims are more blameworthy on the average than those who did not. By requiring that the selection of who should die must include this limit, the justices were avoiding the arbitrary imposition of penalties. The U.S. Supreme Court made that result a clear constitutional necessity in Enmund vs. Florida, decided last week. That sort of limiting application is what courts are supposed to do, particularly when a law has been passed by a public preoccupied with broad principle and unconcerned with details. This is not the work of an undemocratic court, but rather the task of courts in democratic government.

Sure, the critics say, but what about Hamilton? Aren’t the odds overwhelming that the jury believed that he intended to kill his victim? Wasn’t the failure to instruct on intent to kill what lawyers call “harmless error?”

It is hard to think of any legal error that could be the difference between life and death yet could safely be called harmless. We do not know why jurors choose between life and death. The jury charged with deciding Hamilton’s fate was confronted with his crime, but was not aware of the thousands of other cases from which the few who will be executed would be selected. Juries need standards to guide them--even in terrible cases.

There is little real cost to reversing the penalty and allowing the retrial of death-penalty issues. Hamilton stands convicted of first-degree murder and will be isolated from the community no matter what happens next. If his execution is an important public priority, if no jury would doubt his lethal intentions, let the matter be heard again. A punctilious attention to legal detail is one of the many prices that we must pay when we arrogate to the state the power to execute. Even if the odds of error are one in 100, why take that chance?

I would worry far more about judges pressured to overlook legal technicalities than about the cost of a rehearing. This points up the real problem: the use of the democratic process to effect the wholesale recall of unpopular judges. There is little danger in California that the institutions of criminal justice will persistently remain in opposition to public opinion. There is more reason to worry when the courts become the servants of public passion.