High Court Will Rule on ‘Sympathy Factor’ in Death Penalty Cases

Times Staff Writer

The Supreme Court, entering a far-reaching capital case from California, agreed Monday to decide whether jurors considering the death penalty for a convicted murderer may be instructed not to be swayed by “mere sympathy.”

The justices, in a brief order, said they will review a ruling last December by the California Supreme Court striking down such an instruction and ordering a new sentencing trial for Albert Greenwood Brown Jr.

The state court held 5 to 2 that, under the U.S. Constitution, capital juries must be allowed to consider “any sympathy factor” raised in the case.

Instructions barring juries from basing sentencing decisions on sympathy, sentiment or public opinion are common among states in which the death penalty is legal.


Major Impact

The high court’s decision thus could have consequences throughout the country and affect a substantial number of cases in California, state Deputy Atty. Gen. Jay M. Bloom said. “We’re very pleased about the court granting review. We think the California court misinterpreted federal law,” he said.

Monica Knox, the state’s chief assistant public defender representing Brown, said that while the instruction had been given in very few cases in California recently, its widespread use would likely resume if the state court ruling is overturned.

Brown was convicted and sentenced to death in the murder of Susan Jordan, 15, in Riverside in 1980. The state Supreme Court upheld the conviction but overturned the death sentence, saying that the instruction barring sympathy improperly prevented the jury from considering factors that might spare Brown’s life.


In a second part of the ruling, the California court, in a new interpretation of the state’s death penalty law, held that juries retain the power to refuse to impose the death penalty, even when aggravating factors in the case outweigh mitigating factors.

Van de Kamp Appeal

State Atty. Gen. John K. Van de Kamp appealed the decision to the Supreme Court, contending that together the two findings by the state court could jeopardize up to 170 death sentences. The justices, however, agreed Monday to rule only on the sympathy instruction.

In its appeal, the state said that a judge’s instruction telling the jury not to be swayed by mere sympathy helped focus attention on the offense and the offender rather than “extraneous matters” that could lead to verdicts based on emotion. Some authorities say that the instruction actually can prove helpful to defendants by preventing juries from being swayed by sympathy for the victim.


In response to the appeal, state Public Defender Frank O. Bell Jr. urged the justices to allow the state court ruling to stand, saying that the instruction improperly required juries to ignore character and background evidence that defendants may present in their behalf.

The justices will hear the case (California vs. Brown, 85-1563) in the term that begins next October.

In other action, the court:

- Left intact a sweeping gag order imposed on attorneys in the Los Angeles spy trial of former FBI agent Richard Miller, barring out-of-court comment to reporters about the “strength or weakness” of the case by either side.


The order, issued by U.S. District Judge David V. Kenyon Jr., was challenged by Miller’s attorneys, Joel Levine and Stanley I. Greenberg, as a violation of the First Amendment. (Levine vs. U.S. District Court, 85-1291).

- Refused, in a victory for Baltimore’s “singing cop,” to hear a challenge to a federal appellate court ruling that city officials violated the free-expression rights of Officer Robert Berger by ordering him to cease publicly performing his imitation of Al Jolson dressed in blackface. Civil rights groups had called the performances by the white officer insulting and picketed a hotel where he appeared off duty (Battaglia vs. Berger, 85-1541).

- Let stand a controversial federal appellate court ruling that prejudicial publicity denied a fair trial to three men convicted and sentenced to death for the notorious murders of six members of the Jerry Alday family in Seminole County, Ga., in 1973. (Kemp vs. Coleman, 85-1652.)