Death Penalty Awaits Ruling on Fetus

The murder was motivated by money. But the crime was made especially heinous because Michael Allen Hamilton’s target was seven months pregnant with Hamilton’s unborn son.

The state Supreme Court now must answer the tough question: Can Hamilton be sent to the gas chamber for committing a multiple murder when one victim was not yet born?

In oral arguments on Tuesday, Hamilton’s lawyers told the justices of an array of legal problems in Hamilton’s 1982 trial that could result in a reversal. But most attention focused on the vexing issue of the fetus’ death--an issue raised by one other Death Row inmate who, like Hamilton, was convicted of a multiple murder for killing a pregnant woman.

As some justices expressed skepticism over the defense claim that the multiple murder conviction should be reversed, Hamilton’s attorney, George Schraer, a deputy state public defender, argued that a defendant cannot be convicted of multiple murders unless he committed more than one act of murder. Killing two people with a single bullet would not suffice.

Reasoning Challenged

Justice Joseph Grodin pointed out that, according to Schraer’s reasoning, a person who kills several people with a bomb could not be charged with multiple murder because there would have been only one murderous act.

“What’s your second argument?” Justice Allen Broussard, evidently impatient with the argument, asked Schraer.

Schraer next argued that the death verdict must be reversed because the statute, which lists specific crimes for which death can be imposed, does not specifically mention feticide.

He pointed to past court rulings in California and other states that say statutes must specify whether feticide is covered before the act can be considered murder, or an act for which death can be imposed.

“Not once does the statute mention a fetus,” Schraer added.

However, Deputy Atty. Gen. Raymond Brosterhous pointed out that the statute defining murder--a law different from the death penalty statute--does say a person can be found guilty of murder for killing a fetus.

Based on Murder Statute

He argued that although the death penalty statute does not mention feticide, it is based on the murder statute.

“I’m unwilling to concede,” Brosterhous said, “that even a life that has only momentary existence is unworthy of protection for the purposes of (the death penalty) statute.”

According to court papers, Hamilton, a Bakersfield man, began plotting the murder after his wife, Gwendolyn, had become pregnant with what would have been the couple’s fifth child.

Hamilton bought a $100,000 life insurance policy on her, and decided that he would drive his wife along Highway 65 outside Bakersfield, pull off to the side of the road, and have two cohorts drive up in another car and commit the murder.

The conspirators, however, had no stomach for the crime and failed to carry it out on two different nights. On the third night, Hamilton took over.

Claiming he had a flat tire, Hamilton pulled off on the highway between Bakersfield and Porterville on Nov. 2, 1981. He shot once, reloaded his shotgun, said the words, “Sorry, babe,” and fired again. Police, noting the tire was only partly deflated, immediately suspected Hamilton.

Died From Lack of Oxygen

The fetus, according to doctors who testified at his trial, died from lack of oxygen. The fetus was well-developed, weighed more than 2 pounds and could have been saved if it had received medical care immediately, doctors said at Hamilton’s trial. Before they imposed a death sentence on Hamilton, jurors found he was guilty of two murders.

In oral arguments in another case Monday, the court appeared split over whether to prohibit mobile home parks from barring families with children.

That case stemmed from a suit brought by Toni Schmidt, who was prevented from buying a $45,000, three-bedroom mobile home in an adults-only Santa Barbara County park because she has a 9-year-old daughter.

The court has already banned adults-only apartments and condominiums, and lawyers for Schmidt argued that adults-only mobile home parks unfairly discriminate against families with children.

Based on their questions, some justices appeared to be leaning toward upholding a state statute that specifically allows “adults-only” mobile home parks, though Chief Justice Rose Elizabeth Bird indicated by her questions that she believes the restriction is unconstitutional and allows discrimination.

Rationale Described

Dale Hanst, attorney for the mobile home park owners, argued that the Legislature passed the mobile home statute to aid older adults on fixed incomes who are especially attracted to mobile home parks because of the inexpensive housing. The parks adopt restrictions against young families because some older tenants dislike noise generated by children, Hanst said.

The court, Hanst argued, would be engaging in the “worst kind of judicial legislating” by prohibiting the parks from catering to the elderly in the face of the Legislature’s decision to allow the practice.

California Rural Legal Assistance attorney Joel Diringer, representing the Schmidts, said the adults-only statute violates several constitutional provisions by denying families affordable housing.

“The rights of families are too precious to be sacrificed to childless people,” Diringer said.